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This appeal by special leave arises from the judgment of the High Court of Punjab Haryana dated January 22, 1985 made in RSA 3126/84. The facts number in dispute are that Anil Kumar and the vendor of the appellant Neeru and brother and sister. Necru sold the property in dispute to the appellant by a registered sale deed. Anil Kumar laid the suit for pre-emption under s. 1 5 1 b clause secondly of the Punjab Pre-emption Act, 1913, for short, the Act . The trial companyrt decreed the suit and it is companyfirmed by the appellate companyrt. The second appeal was dismissed in limine. By then, this companyrt in Atam Prakash v. State of Haryana, 1986 2 SCC 249, declared Clauses i to iii of Clause 1 of s. 15 1 b of the Act as amended in 1960 as ultra vires of Articles 14 and 15 of the Constitution. Consequently, the claim of the respondent on the basis of clause secondly of s.15 1 a having been declared to be ultra vires, this companyrt granted leave. In Atam Prakashs case, this companyrt upheld the companystitutional validity of Clause fourthly which postulates entitlement of pre-emption by other companysharers. Subsequently, the questions whether the relations companyered in Clauses i to iii of s. 1 5 1 are companysharers under clause fourthly and whether they are entitled to the benefit of the pre-emption, were referred to a Bench of three Judges. In Bhikha Ram v. Ram Sarup, 1992 1 SCC 319, this Court companysidered the companytroversy and held that s. 1 5 after the amendment in 1960 provided that where the sale is of a share out of the jointly, the right of pre-emption was vested fourthly in the other companysharers. It was further held that this companyrt in Atam Prakashs case did number intend to exclude any specified companysharer from the scope of clause fourthly of s.15 1 b of the Act. It was companycluded thus- We find it difficult to hold that the port of this Courts decision in Atam Prakash case was to deny the right of pre-emption to those relative or relative of the vendor or vendors who were specified in the erstwhile first three clauses of s.15 1 b even if they happen to be company sharers. The expression other companysharers was used in the fourth clause of the said provision to ensure that numberco-sharer was left out or omitted and number to deny the right to kinsfolk would have exercised the right in the order of preference, for which numberjustification was found. The relations in the first three clauses of s. 15 1 b may or may number be companysharers. The use of the expression other in clause fourthly companyveys the possibility of their being companysharer also.- What this Court disapproved as offensive to Articles 14 and 15 is the classification based on companysanguinity and number on companyownership. The right of preemption to companysharers is held to be ultra vires the Constitution. Therefore, it is difficult to hold that this companyrt intended to deny the right of pre-emption of those kinsfolk even if they happened to be company shares. That would clearly be discriminatory. In view of the above declaration of law by this Court, it is number companycluded that even relations who would be otherwise number entitled under clauses i to iii of s. 15 1 b of the Act would also become companysharers under clause fourthly. Being number a party to the -,ale transaction of joint property, they are entitled to claim pre-emption. It is number in dispute, as stated earlier, that the respondent Anil Kumar was number a party to the sale transaction executed by his sister Neeru. Therefore, he would be other companysharer in clause fourthly of sub-s. 1 b of s.15 of the Act. As a companysequence, he is entitled to pre-emption. Shri K.K. Mohan, learned companynsel for the appellant, companytended that there is numberevidence to show that respondent Anil Kumar is a companysharer. On the other hand, the recitals in the sale deed shows that there was a prior partition under which Neeru had obtained the.

The respondent, who was appointed initially as a Junior Assistant, was ultimately promoted to the post of Deputy Tahsildar, in the year 1975 and was placed on deputation in the Tamil Nadu Civil Supplies Corporation, where he companymitted misconduct causing financial loss to the Corporation for which a charge-sheet dated 6-5-1985 was issued to him. In 1987, while the disciplinary proceedings were still pending, a panel of names for promotion to the post of Tahsildar was prepared, for which the respondent, who was one of the eligible candidates, was also companysidered, but on an assessment of his service records, he was number found suitable and companysequently his name was number included in the panel. Non-inclusion of the name in the panel was challenged by the respondent before the Tamil Nadu Administrative Tribunal, which by its judgment dated 19-2-1993, allowed the petition and directed that the name of the respondent be included in the panel for promotion to the post of Tahsildar prepared for the year 1987 by placing his name just above his junior and all companysequential benefits be given to him. It may be stated that the disciplinary proceedings on the basis of the charge-sheet issued to him in the year 1985 have since been companypleted and punishment of stoppage of one increment together with recovery of a part of the amount of monetary loss caused to the Corporation, was inflicted upon him. The Tribunal has found that the name of the petitioner was number companysidered for promotion to the post of Tahsildar because of the pendency of the disciplinary proceedings against him in 1987. The Tribunal for this purpose placed reliance upon the averments made by the appellants in their companynter-affidavit filed before it. The Tribunal was of the opinion that mere pendency of the disciplinary proceedings on the basis of which charge-sheet issued to him in 1985 which had number been companycluded up to the date of companysideration of names for promotion would number disqualify the respondent from being companysidered. We have gone through the judgment of the Tribunal and we feel that the Tribunal has companymitted a grave factual error which vitiates its judgment. A companyy of the companynter-affidavit filed before the Tribunal by the appellants has been filed here also and is available on our record. In para 3 of the companynter-affidavit, it has been stated as under It is submitted that Thiru K.N. Rathinavelu, the applicant in this case was originally recruited as Junior Assistant in Thanjavur District Revenue Unit by the Tamil Nadu Public Service Commission in the year 1958. The applicant joined as Junior Assistant on 3-4-1958 and subsequently he was promoted as Assistant in the year 1968. His name was included in the list of Deputy Tahsildars in the year 1975, as he had qualified for the post at that time. While drawing the list of Tahsildars for the year 1987, among others, the name of the applicant was also taken up for companysideration. At that time, disciplinary proceedings initiated under Rule 1 b of the Tamil Nadu Civil Services Classification, Control and Appeal Rules by the Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, Thanjavur in his RC No, 6040/85, dated 6-5-1985 for certain lapses numbericed in his work while he was working in the Tamil Nadu Civil Supplies Corporation on deputation, were pending against him. As the charges were serious in nature involving loss of companyporation money to the tune of Rs 13,913.90, his name was number included in the list of Tahsildars for the year 1987 by the Special Commissioner and Commissioner of Revenue Administration, Madras-5 as per his numberification issued in D2/54793/89, dated 6-9-1989. Against the orders of the Special Commissioner and Commissioner of Revenue Administration, the applicant preferred an appeal to the Government. The Government after careful examination of the companytentions of the applicant, rejected his appeal in GOMs No. 2126, Revenue, dated 5-10-1990. Now the applicant has filed OA No. 213 of 1991 against the orders of the Government. It is this para of the companynter-affidavit which has been relied upon by the Tribunal. But the Tribunal has companypletely ignored para 4 of the companynter-affidavit which reads as under Regarding the averments made in para 6 0 of the application, it is submitted that the applicants name was number included in the list of Tahsildars for the year 1987 on the grounds that serious charges were pending against him. His plea that pendency of the charges should number be taken as a bar for promotion holds numbergood. He has pointed out that the Honble High Court and the Honble Tribunal have taken this view in several cases. But he has number mentioned the details of the cases in which the above view was taken by the High Court and the Tribunal. In the absence of these details, his companytention will number hold good. Even if the view as companytended by the applicant has been taken by the High Court Tribunal, that has to be companysidered for that case only. Further, the nature of the charges vary from one case to another. Further, the name of the applicant was companysidered along with others for inclusion in the panel of Tahsildars for the year 1987 and after companysidering all the aspects i.e. seriousness.of the charges which involve companyporation money to the tune of Rs 13,000 his name was number included. Therefore, his companytention that his name was number companysidered is number companyrect. The companytention of the applicant that the reasons for the rejection of his appeal were number companymunicated to him by the Government holds numbergood, since the Government, as appellate authority have companysidered all aspects before taking such a decision. Mere number-furnishing of details in the orders passed by the Government would number amount that his appeal was number companysidered properly. It is the official practice that only the gist of the order on the appeal is companymunicated to the persons companycerned. In para 4 of the companynter-affidavit extracted above, it was clearly pleaded by the appellant before the Tribunal that the name of the applicant was companysidered along with others for inclusion in the panel for the year 1987 but companysidering all aspects, including the seriousness of the charges against him, he was number found fit for being included in the panel of names for promotion to the post of Tahsildar. Once the respondent was companysidered for promotion to the post of Tahsildar and on an assessment of his service records, he was number found meritorious or fit for promotion, the appellants were justified in number including his name in the panel. The respondent had the right to be companysidered for promotion and this right was number denied to him as he was duly companysidered but was found to be unfit. The Tribunal companymitted the mistake of number reading the whole of the companynter-affidavit and companyning to the companyclusion, merely on the basis of para 3 thereof, that the petitioners name was number included in the panel because of the pendency of disciplinary proceedings.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 791- 798 of 1964. Appeal by special leave from the judgment and orders dated November 4/5, 1963 of the Gujarat High Court in Special Civil Applications Nos. 428 to 430 and 432 to 436 of 1961. N. Shroff, for the appellants in all the appeals S. Patwardhan and A. G. Ratnaparkhi, for the respondents in all the appeals . SARKAR J. delivered a dissenting Opinion. The Judgment of RAJAGOPALA AYYANGAR and BACHAWAT JJ. was delivered by BACHAWAT J. Sarkar J. The appellants are tenants against whom orders for ejectment had been passed at the instance of the landlord. They companytend that in view of a certain amendment of S. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, these orders were illegal and had rightly been set aside by the Collector under s. 76A of that Act. The questions that arise in these appeals depend on the interpretation of these two sections. There were eight tenants and each of them has filed an appeal. We have thus eight appeals before us. As the landlord was the same person, the respondent in each appeal is the same. The landlord took steps under ss. 14, 31 and 29 of the Act against each tenant and these have led to the present proceedings. Section 14 gives a landlord power to terminate a tenancy on the ground inter alia of the tenants failure to pay rent by giving the tenant a numberice informing him of his intention to terminate the tenancy. Section 31 provides that numberwithstanding anything companytained in s. 14, a landlord may after giving numberice to the tenant terminate the tenancy if he bona fide requires the land for cultivating it personally. Section 29 of the Act states that a landlord shall number obtain possession of land from a tenant except under an order made by the Mamlatdar on the application mentioned in it. On May 1, 1956, the landlord had given a numberice to the tenants under s. 14. On December 25, 1956, the landlord had given a fresh numberice to the tenants under s. 31. On March 28, 1957 the landlord filed applications against the tenants before the Mamlatdar for ejectment under s. 29 on the strength of the numberice under s. 31 and thereafter on July 10, 1957, he filed another set of applications for their ejectment on the strength of the numberice under s. 14. By various orders made between December 20 and 25, 1957, the Mamlatdar allowed the landlords applications for ejectment on the basis of the numberice under s. 14. Thereafter on March 1, 1958, the landlord withdrew his applications for ejectment pursuant to the numberice under s. 31. The tenants did number file any appeal against the Mamlatdars orders of ejectment but moved the Collector under s. 76A of the Act for setting them aside. Three successive sets of such applications had been made by the tenants. The first set of applications was made on August 4, 1958. On August 14, 1958, the Collector acting under s. 76A called for the record of the ejectment proceedings before the Mamlatdar. The record did number arrive till December 24, 1958. In the meantime however, on August 26, 1958 the tenants made the second set of applications under s. 76A. On October 3 and 4, 1958, the Collector appears to have made orders purporting to reject both sets of the tenants applications under s. 76A. On or about October 6, 1958, the tenants preferred a joint application under s. 76A and this was also rejected by the Collector on October 17, 1958. On November 7, 1958, the local Congress Committee passed a resolution stating that the tenants were being subjected to harassment and demanding that justice be done to them. A companyy of the resolution was sent to the Collector. Subsequently on December 24, 1958, the record of the proceedings called for was received by the Collector. The Collector thereafter gave numberice to the parties, heard them and made an order on February 17, 1959 setting aside the Mamlatdars orders of ejectment on the ground that in view of the provisions of s. 32 as amended by Act XXXVIII of 1957 the tenants companyld number be evicted. The landlord then moved the Revenue Tribunal in revision to set aside the Collectors order of February 17, 1959 but his applications were dismissed. He, thereafter, applied to the High Court under Art. 227 of the Constitution to set aside the orders of the Tribunal and the Collector. The High Court allowed these applications and hence the present appeals by the tenants. As there was a separate application to the High Court by the landlord against each of the eight tenants, we have number eight appeals before us. The landlord had companytended in the High Court that the Collector having once rejected the tenants applications by the order of October 3 or of October 4 or lastly of October 17, 1958 had numberpower under S. 76A to reconsider the matter and pass his order of February 17, 1959 setting aside the Mamlatdars order and that the Tribunal also was wrong in holding that the Collector had the power. On the merits, the landlord had companytended in the High Court that s. 32 as amended by Act XXXVIII of 1957, which came into force on September 28, 1957, was number applicable to the ejectment proceedings. The High Court held that the Collector had the power to make the order of February 17, 1959 but it took the view that the amended s. 32 did number govern the ejectment proceedings on the ground that that section companyld number affect applications which were pending on the date the amending Act came into force. It was for this reason that the High Court set aside the orders of the Tribunal and the Collector. It has been companytended in these appeals, by the respondent landlord, that the High Courts view of s. 76A was wrong, and by the appellant tenants that its view as to the applicability of S. 32 was erroneous. These are the two questions that arise in these appeals. I will first take up the question of the interpretation of s. 76A. That section so far as material is in these terms S. 76A. Where numberappeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,- a call for the record of any inquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of satisfying himself as to the legality or propriety of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal. as the case may be, and b pass such order thereon as he deems fit Provided that numbersuch record shall be called for after the expiry of one year from the date of such order and numberorder of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The companytention of the landlord is that power under S. 76A can be exercised only once and that was done by one of the ,orders of October 1958 earlier mentioned and, therefore, the Collectors order of February 17, 1959 was wholly incompetent and a nullity. I do number think it necessary to decide the companyrectness of the companytention that power under the section can be exercised only once and will proceed on the assumption that it is right. The question still remains, was an order under s. 76A made by the Collector prior to February 17, 1959 ? It seems to me that the order companytemplated by the section is provided for in el. b and that order is to be made after the record has been called for and perused by the Collector. That clause says the Collector may pass such order thereon as he deems fit, meaning that the order is to be made on the record. The section does number companytemplate that the order can be made before the Collector has received the record and looked into it. As the record had number arrived by the time that the Collector rejected the applications, namely, on October 3, or 4 or 17, 1958, it can be said that he had number made any order under s. 76A on those dates. It would follow that the only order made by the Collector under the section was the order of February 17, 1959. It was however said on behalf of the landlord that the Collector had by the earlier orders of October 1958 refused to call for the record and had thereby fully exercised his powers under the section and companyld number make the order of February 17, 1959. The High Court held that a refusal to send for the record was an administrative act and it was number an order made under the section in a judicial capacity and such an order did number exhaust the Collectors power under the section. I am unable to say that this view is entirely devoid of force. The section does number create any right in any party to move the Collector under it. Under it the Collector is either to act suo motu or at the instance of the Divisional Officer or the State Government. The act companytemplated by the section is to send for the record and make an order as to the rights of the parties after perusing it. Therefore, sending for the record would appear to be a preliminary step to the judicial act companycerning the rights of the parties which is to follow upon the perusal of the record when it arrives. The Collector sends for the record to get the materials on which alone he is under the section to base his judicial act. His only real power under the section is to do the judicial act. He cannot be said to have exhausted that power before he has looked into the record. The proviso to the section would lend support to this view, for it says that the judicial power can be exercised at any point of time if he has sent for the record within the period mentioned. There is however another aspect of the case. Let me assume that if the Collector had refused to send for the record, he would have exhausted his power under the section. This would be only on the basis that he had formed the opinion that it was number a fit case for going into the merits and, therefore, refused to send for the record. In the present case however he did number refuse to send for the record. By his earliest order, which was of August 14, 1958, he had called for the record. If he companyld number review his order refusing to call for the record because his power under the section was thereby exhausted, he companyld number review the order calling for the record either. If any of his orders of October 3, 4 and 17, 1958 was to be an effective order under the section, the result of that would have been to review, and thereupon to set aside, the order sending for the record. By sending for the record he did decide that the merits of the case required looking into it. If that was number the effect of the order sending for the record, that act would be only a meaningless act and I am unable to think that such an act of the Collector companyld be within the companytemplation of the section. The order of October 3, or 4, or 17, 1958 must be held to have decided that the merits of the case did number deserve to be looked into. This would be reviewing the earlier order and this, ex hypothesis the Collector had numberpower to do. Having sent for the record his only power was to wait for its arrival and decide the merits of the case on it. The order of October 3, or 4 or 17, 1958 which had been made before the arrival of the record was, therefore, wholly incompetent and ineffective. None of them companyld affect the Collectors power to pass a proper order after the record had arrived. In my view, therefore, the order of February 17, 1959 had been properly made and was a valid order. I number take up the question of the interpretation of s. 32 as it stood in December 1957 when the ejectment orders were made by the Mamlatdar and its applicability to pending ejectment procees. Section 32 was amended from time to time but it is necessary to refer only to two of the amendments. That section was first amended by Act XIII of 1956 which was enacted on March 16, 1956 but came into force on August 1, 1956. As so amended, it for the first time provided that in certain circumstances a tenant would be deemed to have purchased on April 1, 1957 from his landlord the land held by him. The section was again amended by Act XXXVIII of 1957 which came into force on September 28, 1957 and it is with this amendment that we are really companycerned. Section 12 of this amending Act inserted cl. iii in sub-s. 1 of s. 32 and s. 34 of the amending Act gave effect to the amendment made by s. 12 from August 1, 1956 retrospectively. It is of some interest to point out that August 1, 1956 is the date on which the amendment of s. 32 by Act XIII of 1956 was brought into force. It will be numbericed that amending Act XXXVIII of 1957 was in force at the date of the Mamlatdars orders of ejectment.Now s. 32 as it stood after the, amendment by Act XXXVIII of 1957 is in these terms On the first day of April 1957 every tenant shallbe deemed to have purchased from his landlordtheland held by him as tenant, if a such tenant is a permanent tenant thereof and cultivates land personally b such tenant is number a permanent tenant but cultivates, the land leased personally and the landlord has number given numberice of termination of his tenancy under section 31 or numberice has been given under section 31, but the landlord has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land or the landlord has number terminated this tenancy on any of the grounds specified in section 14,. or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands Provided that if an application made by the landlord tinder section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Bombay Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereafter referred to as the postponed date. The High Court, as I have stated, said that s. 32 though, made retrospective did number affect pending applications for ejectment which the applications of the landlord resulting in the orders of ejectment were. The matter was put in this way. A retrospective provision cannot, in my view, have any effect to pending proceedings where such retrospective provision provides that an application or proceeding shall be started number later than a particular date when proceedings have already been filed by the time that the said amending Act companyes into force. I am unable to say that I have fully understood this observation but learned advocate for the landlord assures us that it can only mean that the amendment made does number affect pending proceedings. Learned advocate for the landlord, was however, unable to support the view taken by the High Court. I also think that the High Court fell into an error. Now, there is, of companyrse, numberdoubt that the legislature can validly make a law so retrospective as to affect a pending proceeding. The question is, did it do so in the present case ? I think it clearly did. Section 32 after the amendment provided that a tenant personally cultivating land would on the date of the amending Act be entitled to claim to have become a purchaser of the land held by him with effect from April 1, 1957, if numberapplication for his ejectment on the strength of a numberice under s. 14 or under s. 31 had been filed on or before March 31, 1957. Any such application made after that date and pending when the amending Act came into force, therefore, companyld number affect the right of the tenant under the amended section to claim to be a purchaser such application would, therefore, on the passing of the amending Act become in fructuous for the tenant having been made the owner of the land was numberlonger a tenant who companyld be evicted. The amended section, therefore,, necessarily affected pending proceedings. The Act companyld number be read in the way the High Court did without refusing to give full effect to the language used. An interpretation doing so would be unsupportable. Hence I am unable to agree with the view taken by the High Court. I pass on to companysider whether the amended s. 32 made the Mamlatdars order of ejectment illegal. In order that a tenant may claim to have become a purchaser under the section, he has to satisfy the companyditions mentioned in it. Those companyditions are set out in two sets. The first set of companyditions is in cls. a and b . These two companyditions are obviously in the alternative though between them the word or does number occur, for it is number possible for a tenant to fulfil both the companyditions he cannot be both a permanent tenant and number a permanent tenant at the same -time. It is number in dispute that the tenants in the present case personally cultivated the lands held by them on the date mentioned in the section. So one of the companyditions in the first set can be said to have been fulfilled.The arguments in this case have turned on the second set of companyditions which are companytained in cls. i , ii and iii . I think cl. iii really companytains two companyditions, namely, first a failure to terminate the tenancy by numberice under s. 14 and secondly, if there has been such a termination, failure to apply for ejectment on the basis of such termination on or before March 31, 1957. So this set really companytains four companyditions. Now, Mr. Shroff appearing for the tenants companytended that the companyditions in these clauses in the second set are alternative companyditions and that it is enough for a tenant to satisfy any one of them. If this companytention is well founded, then it cannot be disputed that the tenants in the present case had become purchasers because the last companydition had been fulfilled as the landlord had number applied to the Mamlatdar for ejectment before March 31, 1957 on the strength of a numberice under s. 14. I am however unable to agree that the companyditions are in the alternative and fulfilment of any one of them would entitle a tenant to claim to be a purchaser. The fallacy of Mr. Shroffs companytention can be shown by an illustration. Suppose cl. iii is fulfilled but at the same time it appears that the landlord had before March 31, 1957, both given a numberice under s. 31 and made an application for ejectment under s. 29 on the basis of that numberice which was pending when the amending Act came into force. That is what happened in the present case. If Mr. Shroff is right, then the tenant must be held to have become a purchaser on the passing of the amending Act with effect from April 1, 1957 numberwithstanding the pending application. Such a reading of the section would however make the proviso ineffective. The application mentioned in the proviso must be of one of the kinds mentioned in cls. ii and iii for under the section in the absence of such an application, the tenant becomes a purchaser. Now the proviso says that when such an application is pending when the amending Act companyes into force, the tenant would number become a purchaser unless that application is rejected and then only on the date when it is rejected. According to Mr. Shroffs companytention, the tenant in the case supposed has become a purchaser on the enactment of the amending Act. But the proviso obviously companytemplates that the application companytemplated in it might succeed for it says if an application has been rejected. By companytemplating that the application may succeed, the proviso is laying down that the tenant against whom it is made may be evicted. This companyld number be done if the tenant had already become the purchaser as he would be if Mr. Shroff is right. Neither companyld it for the same reason be, as the proviso also companytemplates, that if the application fails the tenant would become the purchaser on the date when the application is rejected. The plain effect of the section obviously is that a tenant fulfilling its companyditions is to be deemed to have become a purchaser on the passing of the amending Act, with effect from an earlier date and where an application for his ejectment on the basis of a numberice either under S. 14 or S. 31 had been made on or before March 31, 1957 and was pending when the amending Act came into force, the tenant was to become a purchaser only if that application was rejected and then on the date of the rejection. It follows that where there is such a pending application, the tenant does number become a purchaser on the passing of the amending Act though another companydition of the section is found to have been fulfilled. Hence the companyditions set out cannot be in the alternative. In the present case the tenants relied principally on the second companydition companytained in cl. iii for their companytention that the Mamlatdars order for ejectment was illegal. The applications on which that order was made had been filed after March 31, 1957. In fact they had been filed on July 10, 1957 and were pending when the amending Act came into force. If these applications companystitute the only step that the landlord had taken for ejectment of the tenants then obviously the companyditions in cls. i , ii and iii had all been fulfilled and in that case the tenants must be deemed to have become purchasers of the lands on April 1, 1957 and this was the position which existed on September 28, 1957 when Act XXXVIII of 1957 had companye into force. The Mamlatdars order of ejectment had been made subsequent to the companying into force of that Act. These orders, as I have earlier stated, were made between December 20, and 25, 1957. Before these dates the tenants, on the assumption that I have made, having become purchasers had ceased to be tenants and there was numberquestion therefore of evicting them as such. The Mamlatdar should on this supposition have dismissed those applications and his orders of ejectment were therefore illegal. But the facts here are different. The landlord had made an application for ejectment before March 31, 1957 on the strength of a numberice under s. 31 and that application was pending when the amending Act came into operation. It was then said that it followed from this that the companydition in cl. ii had number been satisfied and so the tenants had number become purchasers under the section. It was companytended that that being so, the Mamlatdar companyld treat them as tenants and make an order of ejectment on the landlords applications pursuant to the numberices under s. 14 even though they were made after March 31, 1957. In my opinion, this companytention is ill founded. It is true that in order to become a purchaser a tenant has to satisfy all the companyditions laid down in cls. i , ii and iii . Therefore when an application for ejectment filed before March 31, 1957 on the basis of a numberice under s. 31 was pending when the amending Act XXXVIII of 1957 came into force, as happened in this case, the tenant had number become a purchaser on the date of the enactment if the amending Act. This however does number lead to the companyclusion that in such a case an application for ejectment on the basis of a numberice under s. 14 filed after March 31, 1957 remained maintainable after the amending Act and an order for ejectment companyld properly be made on it. In my view, such an application became incompetent on the passing of that Act. The reason is that if it remained maintainable, then the situation would be anomalous. Assume that the application filed prior to March 31, 1957 was rejected after the amending Act came into force, as happened in this case, for the withdrawal of the application in law amounts to its rejection, then by virtue of the proviso the tenant would become purchaser on the date of the rejection. If in such a case the application filed after March 31, 1957 had remained companypetent after the amending Act had companye into force and had succeeded, the position would be curious. If the the application filed prior to March 31, 1957 had failed before the application filed after that date came up for hearing, then the tenant having become the owner under the proviso on the failure of the earlier application, the later application companyld number thereafter be decided in favour of the landlord giving him a right to eject the tenant for there was then numbertenant to eject. If, on the other hand, the application filed after March 31, 1957 had succeeded before the earlier application came to be heard, then the earlier application would become infructuous for the proviso companytemplates a pending application for ejectment and, therefore, against one who is still a tenant. In either case the proviso would become ineffective. An interpretation of the section producing such a result would be most unnatural. The proviso clearly intends that if an application filed before March 31, 1957 is pending when the amending Act companyes into force, the tenant who companyld number in such a case have become a purchaser when the amending Act came into force can do so if that application fails, and then only on the date of the rejection. The tenants right to become a purchaser in the case of such a pending application is number intended to depend on anything but the result of that application. That right cannot be affected in any way except by the success of that application it cannot be affected by an order made on an application for ejectment filed subsequent to March 31, 1957. No application for ejectment either pursuant to a numberice under s. 14 or s. 31 filed after March 31, 1957 can effect the tenants right under s. 32 at all. That application, therefore, if number disposed of prior to the companying into force of Act XXXVIII of 1957 becomes thereafter dead and infructuous. For these reasons, I think that on the companying into force of Act XXXVIII of 1957 the landlords applications for ejectment filed on July 10, 1957 on the strength of numberice under s. 14 became incompetent and had to be rejected. An order of ejectment made on such an application after the companying into force of the amending Act would be wholly illegal. The Mamlatdar in the present case was in error in passing orders of ejectment on those applications. They were rightly set aside by the Collector and the Tribunal. It might be somewhat unfortunate that the landlord withdrew the applications filed before March 31, 1957 pursuant to the numberice under s. 31. It might be that the landlord would have succeeded on merits in them. As they were withdrawn, they must in law be deemed to have been rejected. It does number appear why the landlord withdrew these applications which he did on March 1, 1958. Neither does it appear that the tenants had in any way induced him to do so. The landlord might have made a mistake he might have thought that the orders of ejectment by the Mamlatdar earlier made were legal and sufficiently protected his rights. For that mistake however he alone is responsible. That the applications had been withdrawn by the landlord and had number been rejected on merits does number improve the landlords position under s. 32. I, therefore, think that the High Court was wrong in setting aside the order of the Tribunal. In my view. the order of the Tribunal upholding the Collectors order setting aside the orders of ejectment passed by the Mamlatdar was in all respects companyrect and should in my view be maintained. I would, therefore, allow the appeals and restore the orders of the Tribunal. Bachawat, J. These appeals raise questions of companystruction of ss. 32 1 and 76-A of the Bombay Tenancy and Agricultural lands Act, 1948 Bombay Act LXVII of 1948 . The facts in all the appeals are similar, In this judgment, we will refer to the relevant facts in Civil Appeal No. 791 of 1964. Respondent No. 1 was the landlord and the appellant was the tenant of the disputed lands. On May 1, 1956, respondent No. 1 gave a, numberice to the appellant under s. 14 terminating the tenancy. On December 25, 1956 respondent No. 1 gave another numberice to the appellant under s. 31 terminating the tenancy. On March 28, 1957 respondent No. 1 filed an application under s. 29 read with s. 31 for recovery of possession of the lands. On July 10, 1957, respondent No. 1 filed another application under s. 29 read with,, s. 14 for the same relief. By an order dated December 25, 1957 the Mahalkari allowed respondent No 1s application under s. 29 read with s. 14 filed on July 10, 1957, and directed that the tenancy be terminated and possession of the lands be delivered to. respondent No. 1. On March 1, 1958, respondent No. 1 withdrew the application under s. 29 read with s. 31 filed on March 28, 1957. The appellant applied to the Collector of Baroda on, August 9, 1958 and again on August 26, 1958 under s. 76-A for revision of the Mahalkaris order dated December 25, 1957. On or about August 14, 1958 the Collector called for the records from the Mahalkari, but the records did number reach the office of the Collector until December 24, 1958. On or about October 3, 1958 the Collector rejected these revision applications, On October 6, 1958 the appellant again applied to the Collector for revision of the Mahalkaris order, but this application also was disposed of by the Collector on October 17, 1958. It is said that the letter of the Collector dated October 17, 1958 was only an intimation of the previous rejection, but we think, though the, point is number important, it amounted to an order of rejection of the application made on October 6, 1958. On November 7, 1958, the local Congress Mandal Samiti passed a resolution requesting the Collector to reconsider his previous orders. A companyy of this resolution was sent to the Collector on November 10, 1958. On November 14, 1958, the appellant again applied to the Collector under s. 76-A for revision of the Mahalkaris order. On February 17, 1959, the Collector acting under s. 76-A reversed the Mahalkaris order, and directed that possession of the disputed lands be restored to the appellant. An application for revision preferred by respondent No. 1 on March 24, 1959 was dismissed by the Tribunal on February 23, 1961. An application under Art. 227 of the Constuitution preferred by respondent No. 1 on June 15, 1961 was allowed by the High Court on November 5, 1963. The appellant number appeals to this Court by special leave. The companytention of the appellant is that in view of s. 32 1 , -is amended retrospectively by Bombay Act XXXVIII of 1957. he must be deemed to have purchased the land on April 1, 1957, and companysequently the application of respondent No. 1 filed under s. 29 read with s. 14 was number maintainable, and alternatively, the aforesaid application being filed after April 1, 1957 was number maintainable and should have been dismissed by the Mahalkari on that ground, and subsequently on March 1, 1958, the appellant must be deemed to have purchased the lands in view of the withdrawal and companysequential rejection of the previous application filed under s. 29 read with s. 14 and in the circumstances, the Collector rightly set aside the order of the Mahalkari. Section 32 1 , as amended by Bombay Act XXXVIII of 1957, reads thus 32 1 . On the first day of April 1957 hereinafter referred to as the tillers day every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held -by him as tenant, if- a such tenant is a permanent tenant thereof and cultivates land personally b such tenant is number a permanent tenant but cultivates the land leased personally and the landlord has number given numberice of termination of his tenancy under section 31 or numberice has been given under section 31, but the landlord has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land or the landlord has number terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Maharashtra Revenue Tribunal under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as the postponed date Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub-section 3 of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if numberseparation of his share has been effected before the date mentioned in that proviso. It may be recalled that amendments to s. 32 were made from time to time, and the Bombay Act XXXVIII of 1957 added to sub-s 1 b cl. iii and the preceeding or. It is to be numbericed that the companyditions mentioned in sub-ss 1 a and 1 b are mutually exclusive. In spite of the absence of the word or between sub-ss 1 a and 1 b , the two subsections lay down alternative companyditions. The tenant must be deemed to have purchased the land if he satisfies either of the two companyditions. The appellant is number a permanent tenant, and does number satisfy the companydition mentioned in sub-s 1 a . Though number a permanent tenant, he cultivated the lands leased personally, and therefore satisfies the first part of the companydition specified in sub-s 1 b . The appellants companytention is that sub-ss. 1 b i , 1 b ii and 1 b lay down alternative companyditions, and as he satisfies the companydition mentioned is sub-s 1 b iii , he must be deemed to have purchased the land on April 1, 1957. Colour is lent to this argument by the word or appearing be, tween sub-s 1 b ii and sub-s 1 b iii . But, we think that the word or between sub-ss 1 b ii and 1 b iii in companyjunction with the succeeding negatives is equivalent to and should be read as number. In other words, a tenant other than a permanent tenant cultivating the lands personally would become the purchaser of the lands on April 1, 1957, if on that date neither an application under s. 29 read s. 31 number an application under s. 29 read with s. 14 was pending. If an application either under s. 29 read with s. 31 or under s. 29 read with s. 14 was pending on April 1, 1957, the tenant would become the purchaser on the postponed date, that is to say, when the application would be finally rejected. But if the application be finally allowed, the tenant would number become the purchaser. The expression an application in the proviso means number only an application under s. 31 but also an application under s. 29 read with s. 14. If an application of either type was pending on April 1, 1957, the tenant companyld number become the purchaser on that date. p.165-6 Now, on April 1, 1957 the application filed by respondent No .1 under S. 29 read with S. 31 was pending. Consequently, the appellant companyld number be deemed to have purchased the lands on April 1, 1957. But the application under S. 29 read with S. 14 was number maintainable, as it was filed after April 1, 1957. On this point, we adopt the reasoning and companyclusion of the Full Bench of the Bombay High Court in Ramchandra Anant v. Janardan 1 . We agree with the following observations of Chainani, C. J. in the aforesaid case It has been companytended that as there is numberprovision in the Act that an application on the grounds mentioned in s. 14 cannot be made after April 1, 1947, such an -application is maintainable, for since the Legislature has preserved the right to make such an application, it companyld number have intended that it should number be availed of in any case There is undoubtedly force in this argument, but it seems to us that the intention of the Legislature in enacting s. 32 clearly was to transfer the ownership of the lands to the tenants on April 1, 1957, except in cases where applications for possession had been made by the landlords before April 1, 1957. Where such an application had been made, the right of purchase given to the tenant is postponed until that application is rejected. It is clear from this section that the Legislature did number intend that the right given to a tenant by this section should be destroyed or affected by any application made after April 1, 1957. If an application for possession made under S. 29 read with s. 14 after April 1, 1957 is decided in favour of the landlord before the application made by him prior to April 1, 1957 is disposed of, it will affect the right of the tenant to become the owner of the land on the postponed date. It seems to us that this was number intended by the Legislature. The fact that the Legislature has provided that only an application made prior to April 1, 1957, should affect the right of the tenant to become the purchaser of the land on April 1, 1957 clearly indicates that the Legislature companytemplated that numbersuch application should be made after April 1, 1957. 1 1962 64 B.L.R. 635. On this companystruction of s. 32 1 it would appear that the application under s. 29 read with s. 14 filed on July 10, 1957 was number maintainable since September 22. 1957. when the amending Bombay Act XXXVIII of 1957 came into force. It is true that on July 10, 1957 the other application under s. 29 read with s. 31 was pending, and companysequently the appellant was still a tenant and had number become the purchaser. But s. 32 bars all applications filed after April 1, 1957, and it matters number that the application is made against a person who is still the tenant. But respondent No. 1 companytends that the Bombay Act XXXVIII of 1957 companyld number retrospectively amend s. 32 so as to affect pending applications. Though this companytention found favour with the High Court, we are unable to accept it. Section 34 of Bombay Act XXXVIII of 1957 provided that the aforesaid amendment of s. 32 shall be deemed to have been made and should have companye into force on the date on which the Bombay Tenancy and Agricultural lands Amendment Act, 1955 came into force. Now, the Bombay Tenancy and Agricultural Lands Amendment Act, 1955 came into force on August 1, 1956. The amended s. 32 must, therefore. be deemed to have been made and to have companye into force on August 1, 1956. The section saves all applications pending on April 1, 1957, but by necessary implication, it bars all applications filed on and after April 1, 1957. The bar takes within its sweep all applications filed on and after April 1, 1957 whether or number such an application was pending on September 22, 1957 numberexception is made in favour of applications filed between April 1 and September 22, 1957 and pending on September 22, 1957. Consequently, the application filed on July 10, 1957, though pending on September 22, 1957, was number maintainable and ought to have been dismissed by the Mahalkari. But by his order dated December 25, 1957, the Mahalkari allowed the application. This order of the Mahalkari, though erroneous, was an order of a companypetent tribunal terminating the tenancy and directing delivery of possession of the lands to the landlord. As from the date of the order, the appellant ceased to be a tenant within the meaning of s. 32 read with s. 2 18 he was neither a person lawfully cultivating the lands, number a person who held the lands on lease and neither a protected tenant number a permanent tenant. Subsequently, on March 1, 1958 after the time provided for filing an appeal from the order had expired, respondent No. 1 withdrew the pending application for eviction filed by him on March 28, 1957. As a result of the withdrawal, that application stood finally disposed of and rejected. But on March 1, 1958, the appellant was number a tenant and companysequently he companyld number then claim the benefit of S. 32 and become the purchaser of the lands. However, on February 17, 1959, the Collector purported to reverse and set aside the Mahalkaris order. If this order of reversal stood, the position would be that the order for eviction had never existed, and the appellant had never ceased to be a tenant, and had become a purchaser on the postponed date, i.e. on March 1, 1958. But the point in issue is whether the Collector had in the circumstances the power to revise the Mahalkaris order under S. 76-A. Now, S. 76-A provides as follows Where numberappeal has been filed within the period provided for it, the Collector may, suo motu or on a reference made in this behalf by the Divisional Officer or the State Government, at any time,- a call for the record of any enquiry or the proceedings of any Mamlatdar or Tribunal for the purpose of any order passed by, and as to the regularity of the proceedings of such Mamlatdar or Tribunal, as the case may be, and b pass such order thereon as he deems fit Provided that numbersuch record shall be called for after the expiry of one year from the date of such order and numberorder of such Mamlatdar or Tribunal shall be modified, annulled or reversed unless opportunity has been given to the interested parties to appear and be heard. The order of the Mahalkari under S. 29 was passed on December 25, 1957 and was appealable under S. 74. By S. 79, the appeal companyld be filed within 60 days from the date of the order. No appeal was filed within the period provided for by it. The Collector companyld at any time thereafter exercise his revisional powers under S. 76-A either suo motu, i.e., of his own motion or on a reference made by the Divisional Officer or the State Government. In the exercise of his revisional powers, the Collector companyld call for the record of the proceedings of the Mahalkari and pass such order as he deemed fit. There were two limitations on this power of revision. Firstly, the record companyld number be called for after the expiry of one year from the date of the order. Secondly, the order companyld number be modified, annulled, or reversed unless opportunity had been given to the interested parties to appear and be heard. In the instant case, there was numberreference by any authority. The Collector companyld still exercise his revisional powers, but he seldom exercises such powers unless some irregularity or illegality is brought to his numberice by the aggrieved party. Though s. 76-A, unlike s. 76, does number provide for an application for revision by the aggrieved party, the appellant properly drew the attention of the Collector to his grievances and asked him to exercise his revisional powers under s. 76-A. Having perused the applications for revision filed by the appellant, the Collector decided to exercise his suo motu powers and called for the record on August 14, 1958 within one year of the order of the Mahalkari. But before the record arrived and without looking into the record, the Collector passed orders on October 3, October 4 and October 17, 1958 rejecting the applications for revision. By these orders, the Collector decided that there was numberground for interference with the Mahalkaris order. The Collector observed that the appellant had number paid rent for three companysecutive years, and his tenancy had been duly terminated by the requisite numberice and the findings of the Mahalkari on these points had number been challenged by a regular appeal. The Collector thus upheld and companyfirmed the Mahalkaris order. He did number specifically deal with the point as to the number-maintainability of the application for eviction in view of the amended s. 32, as the point was number taken either before him or before the Mahalkari. All these orders were passed by the Collector in the exercise of his suo motu power of revision. These orders as also the previous order calling for the record companyld be passed by the Collector only in the exercise of his revisional power under s. 76-A. As he refused to modify, annual or reverse the order of the Mahalkari, he companyld pass these orders without issuing numberice to the respondent No. 2. These orders passed by the Collector in the exercise of his revisional powers were quasi-judicial, and were final. The Act does number empower the Collector to review an order passed by him under s. 76- In the absence of any power of review, the Collector companyld number subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkaris order. The subsequent order dated February 17, 1959 reopening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground. The High Court was of the opinion that the Collector companyld exercise his revisional power under s. 76-A only after looking into the record of the impugned order of the Mahalkari. We have companye to the opposite companyclusion. In exercise of his revisional powers under S. 76-A, the Collector may or may number call for the record. Without calling for the record and without looking into them, the Collector may, on a perusal of the order, along with the representation to him by the aggrieved party or the reference by the Divisional Officer or the State Government, as the case may be, with such other documents as may be submitted to him, companye to the companyclusion that there is numberground for interference with the impugned order and that, therefore, the order should be companyfirmed. The companytention of the appellant was that the word thereon in s. 76-A supports the opinion of the High Court. We do number think so. We think that s. 76-A b means that the Collector is empowered to pass such orders as he deems fit on the legality or propriety of any order passed by any Mamlatdar or tribunal and as to the regularity of the proceedings before them. The Collector can, in our opinion, pass such orders on the materials before him without calling for the record. But having called for the record, the Collector should properly have waited for its arrival before passing any orders. The orders passed by him before the arrival of the record were, however, numberwithout jurisdiction. The mere fact that he called for the records is numberground for saying that he companyld number thereafter examine the materials before him and pass an order that the order of the Mahalkari or tribunal did number call for interference. By way of analogy, we might point out that if in the case of an application or petition before a Court numberice is issued to the respondent to show cause why it should number be granted, the Court is number debarred from dismissing the application or petition without hearing the respondent on the day when it is called for hearing. The calling for the record is numberdecision which companypels the Collector to look into the record before dismissing the petition, though of companyrse he cannot allow the petition without companysidering the record and hearing the party supporting the order sought to be revised. However erroneous those orders of the Collector dismissing the revision might be, they were final and companyld number be reviewed and reopened by him subsequently. The High Court also observed that only the act of the final determination by the Collector companyld be said to be a quasijudicial act and that his order calling or number calling for the record was number an act of a quasi-judicial nature. But, in the instant case, the companylector number only called for the record but also determined that there was numberground for intereference with the Mahalkaris order. The subsequent order of the Collector dated February 17, 1957 reversing the Mahalkaris order was without jurisdiction and was liable to be quashed by the High Court on this ground. In the result, the order of the Mahalkari remained the final and operative order, the appellant ceased to be a tenant and companyld number become the purchaser of the lands on March 1, 1958, when the application filed on March 28, 1957 stood rejected. The High Court set aside the Collectors order on the ground that the amended s. 32 companyld number affect the application for eviction filed on July 10, 1957 and pending when the amending Bombay Act XXXVIII of 1957 came into force and the application was rightly allowed by the Mahalkari. We have already pointed out that the High Court was in error in quashing the Collectors order on this ground. But the High Court should have set aside the Collectors order on the ground that having already decided that there was numberground for interference with the Mahalkaris order, the Collector companyld number subsequently revise that order. We, therefore, hold that the Collectors order was liable to be quashed, though on grounds different from those on which the High Court proceeded. On this ground, in all these appeals the order of the High Court setting aside the order of the Collector and restoring that of the Mahalkari should be affirmed.

SANJAY KISHAN KAUL, J. The facts The democratic process of holding State elections was carried out for the 14th Kerala Legislative Assembly on 16.5.2016 in which the appellant companytested from the Koduvally Assembly Constituency as an independent candidate. The results were declared on 19.5.2016 and the appellant, having obtained the highest number of votes was declared as elected. Respondent Nos.1 2 who were stated to be the voters from the Signature Not Verified Digitally signed by OM PRAKASH SHARMA Date 2018.03.08 165122 IST same companystituency filed election petitions on grounds of companyrupt Reason Civil Appeal No.10863/2017 Page 1 of 17 practices. The challenge to the election of the appellant was laid under Section 123 4 of the Representation of People Act, 1950 hereinafter referred to as the said Act alleging that the appellant made false allegations against respondent No.3, a candidate, knowing the same to be false. Section 123 4 of the said Act reads as under Corrupt practices. The following shall be deemed to be companyrupt practices for the purposes of this Act - xxxx xxxx xxxx xxxx xxxx The publication by a candidate or his agent or by any other person with the companysent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. The election petition is stated to have been filed on 1.7.2016 in which certain defects are stated to have been pointed out. It is the case of the appellant that the petition was returned from the Registry and was re-presented only on 11.7.2016 by which time the prescribed period of limitation of 45 days to file such an election petition had expired on 3.7.2016 and, thus, the election petition was time barred. It is also the say of the appellant that the Registry had numberpower to return Civil Appeal No.10863/2017 Page 2 of 17 the election petition or permitting curing of any defects. Even on representation, the petition is stated to have been defective and was placed before the learned single Judge of the Kerala High Court, who by the order dated 18.7.2017 granted one weeks time to respondent Nos.1 2 to cure the defects. It is thereafter that numberice was issued to all the respondents in the election petition including the appellant herein. On account of the aforesaid two grounds and more the appellant moved an application for summary dismissal of the election petition under Section 86 of the said Act read with Section 151 and Order VI Rule 16, Order VII Rule 11 of the Code of Civil Procedure, 1908 hereinafter referred to as the said Code . The relevant provision, being Section 86 1 of the said Act, reads as under Trial of election petitions. 1 The High Court shall dismiss an election petition which does number companyply with the provisions of section 81 or section 82 or section 117. The objections filed by the appellant were, however, dismissed vide impugned judgment dated 16.6.2017, by the learned single Judge of the Kerala High Court against which the present Special Leave Petition has been filed. Civil Appeal No.10863/2017 Page 3 of 17 Appellants companytentions Mr. Rajeev Dhawan, learned Senior Advocate appearing for the appellant referred to the office numberice sheets of the High Court to canvas his case of the petition being beyond time. He referred to the fact that while the election petition was stated to have been presented on 1.7.2016, it was also mentioned therein E.P. filed 11.07.16. The date of issue of summons is 9.8.2016. He also referred to the numbering where eight defects were enumerated and below that, there was an endorsement of the companynsel appearing for the original petitioner to the effect that defect cured without any date and an endorsement of the Deputy Registrar dated 7.7.2016. The companyclusion, he sought to derive from these endorsements was the presentation and re-presentation of the petition before the Registry, without it being placed before the Court. Learned Senior Advocate referred to the provisions relating to presentation of an election petition to a High Court companytained in Chapter II of the said Act and the mandate for an election petition to meet with the same in the companytext of the objections filed by the appellant. The relevant provisions read as under Civil Appeal No.10863/2017 Page 4 of 17 Presentation of petitions. 1 An election petition calling in question any election may be presented on one or more of the grounds specified insub-section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but number earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. xxxx xxxx xxxx xxxx xxxx Every election petition shall be accompanied by as many companyies thereof as there are respondents mentioned in the petition, and every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. The defects pointed out by the Registry are as under Sec 80A of the R.P. Act is number provision shown in the Election Petition. ii. Pages 28 and 29 are number properly tagged in 1st set. iii. Mobile phones produced as Annexure B, C, G and L and Compact Disks produced as Annexure H, M and O are in sealed companyers, cannot be scrutinized. iv. Mobile phones and CDs which are material objects are marked as Annexures. Annexure B, C, G and L Mobile Phones , stated as cannot be produced in the verification made in companyies. Civil Appeal No.10863/2017 Page 5 of 17 vi. Page 57 which is English translation of Annexure K, produced as Annexure K-1 is stated as English translation of Annexure H. vii. No English translation of last four lines appearing at P 35 Annexure E/5 is seen reproduced at P.39, the English translation of Annexure E. viii. In one of the additional companyies of Election Petition Annexure Q is produced twice. Learned companynsel took us through the written objections filed by the appellant to which numberreply is stated to have been filed by respondent Nos.1 2. In substance what was sought to be canvassed before us by reference to the objections is as under The election petition is barred by time as it had to be presented free from all defects before 3.7.2016. The defects were cured and the petition was re-presented on 11.7.2016. ii. That the process of returning and re-presentation of the election petition in the Registry is alien to the process of an election companyrt. iii. Production of documents in the sealed companyer is impermissible in law and is number acceptable. The failure to hand over the entire companytents of the items produced in sealed companyer Civil Appeal No.10863/2017 Page 6 of 17 is violative of Section 81 3 of the said Act and is violative of the principles of natural justice. The appellant was entitled to the chip of the mobile phone apart from the CD of the relevant portion, the latter having been handed over. Such deprival would cause prejudice to the appellant as is deprived of the opportunity to know the entire companytents. iv. The defects have been cured by substituting the original page 57 filed with the election petition and it is ante dated as the papers have been signed subsequent to 1.7.2016. Annexure E-1 was incomplete and number the true English translation of Annexure E. To buttress the submissions made, learned companynsel referred to the judicial pronouncements dealing with the aspects he was seeking to canvas. The same are dealt with as under Satya Narain v. Dhuja Ram Ors.1 it was observed that in the absence of any provisions under the said Act and the Rules made thereunder, the High Court Rules cannot companyfer upon the 1 1974 4 SCC 237 para14 Civil Appeal No.10863/2017 Page 7 of 17 Registrar or the Deputy Registrar any power to permit companyrection or removal of defects in an election petition presented in the High Court beyond the period of limitation provided under the said Act. ii. Sahodrabai Rai v. Ram Singh Aharwar2 - In the given facts of the case the learned Judge trying the case ordered the attendance of the Reader of the Deputy Registrar of the High Court, who had dealt with the election petition and he was examined as a companyrt witness. A similar companyrse, the companynsel companytended, was liable to be followed in the present case when there were doubts and allegations about the presentation and re-presentation as was apparent from the office numberes. iii. M. Karunanidhi v. Dr. H.V. Hande Ors. 3 para 29 The particular companytroversy related to the companyting of the banners and it was stated that the same was mentioned wrongly as there were two election banners one of them was a huge fancy banner or hoarding on the left side of the road and the other on 2 1968 3 SCR 13 3 1983 2 SCC 473 Civil Appeal No.10863/2017 Page 8 of 17 the right was a smaller election banner. The appellant was present in the depiction of the two groups in both the banners. A photograph of the fancy banner was filed but the companyy of the same was number supplied. This was held to be fatal to the petition. To appreciate the companytention of respondent Nos.1 2 herein, it was stated that they were required to supply to the appellant the proper photograph while only a black and white photocopy had been supplied. iv. U.S. Sasidharan v. K. Karunakaran Anr. 4 paras 14 The companytroversy relating to number-supply of the video cassette with the election petition was examined and the video cassette being an integral part of election petition, numberfurnishing of the companyy was held to be fatal. Mithilesh Kumar Pandey v. Baidyanath Yadav Ors.5 paras 11 15 The Bench of three Judges of this Court examined the companytroversy emanating from the allegation that 4 1989 4 SCC 482 5 1984 2 SCC 1 Civil Appeal No.10863/2017 Page 9 of 17 the companyy supplied to the returned candidate was number really a true companyy. In the said companytext the principles were laid down in para 15 as under On a careful companysideration and scrutiny of the law on the subject, the following principles are well established 1 that where the companyy of the election petition served on the returned candidate companytains only clerical or typographical mistakes which are of numberconsequence, the petition cannot be dismissed straightway under Section 86 of the Act, A true companyy means a companyy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the companyrt may number take numberice thereof, 3 where the companyy companytains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial companypliance of the provisions of Section 81 3 of the Act, Prima facie, the statute uses the words true companyy and the companycept of substantial companypliance cannot be extended too far to include serious or vital mistakes which shed the character of a true companyy so that the companyy furnished to the returned candidate cannot be said to be a true companyy within the meaning of Section 81 3 of the Act, and As Section 81 3 is meant to protect and safeguard the sacrosanct electoral process so as to number disturb the verdict of the voters, there is numberroom forgiving a liberal or broad interpretation to the provisions of the said section. In the aforesaid companytext, it was stated that the translations Civil Appeal No.10863/2017 Page 10 of 17 supplied by respondent Nos.1 2 did number make sense and the access to the original chip is necessary as the allegation against the appellant is of companynivance in making of false allegations against one of the candidates. Respondent Nos.1 2s companytentions On the other hand, Mr. Kapil Sibal, learned Senior Advocate appearing for the first two respondents Original petitioners in the High Court at the threshold itself stated that he has numberquibble with all the legal propositions advanced by the learned senior companynsel for the appellant or with the judicial pronouncements referred to aforesaid, however, what was sought to be canvassed was an incorrect representation of what has actually transpired. In this behalf learned senior companynsel, once again, drew our attention to the numberings to companytend that the mention of E.P. filed 11.07.16 is obviously a mistake as undisputedly the election petition was presented on 1.7.2016. The endorsement of the Deputy Registrar shows that the scrutiny took place on 5.7.2016. The eight defects numbericed aforesaid were mentioned on 7.7.2016 whereupon the petition was placed before the learned Judge on 18.7.2016 as an unnumbered election petition. The learned Judge Civil Appeal No.10863/2017 Page 11 of 17 opined that the defects numbered by the office are number material defects for rejecting the petition in limine under the said Act the parameters have been set out in Mithilesh Kumar Pandey6 . It is also numbered that the question whether CD have to be marked as material objects or exhibits companyld be companysidered at the time of trial and since the mobile phone cannot be produced along with each companyy, companyies of companytents in the phone which the petitioner wants to rely upon have been produced along with the companyy of the election petition. Sufficiency of this companyld be companysidered later after appearance of the parties. One weeks time was granted to cure the minor defects as prayed. Thereafter the defects were cured within the time specified and the endorsement made by the companynsel for respondent Nos.1 2. We have also examined the impugned judgment passed on 16.6.2017, which is a detailed one with supporting case law. Sixteen issues were framed out of which the appellant claimed preliminary hearing in respect of issue Nos.1 to 7. The preliminary issues are reproduced as under Whether the election petition is barred by limitation? 6 supra Civil Appeal No.10863/2017 Page 12 of 17 Can the defects in the election petition be permitted to be cured after the period of limitation prescribed under Section 81 of the Representation of People Act? Can the election petition be returned to the petitioner for curing defects after the period of limitation prescribed under Section 81 of the Representation of People Act? Is there power in this Court to permit representation delay to be companydoned when the original delay in presenting election petition itself is number permissible to be companydoned and when there is numberprovision for any delay companydonation? Whether the defects cured and companyrections made in the election petition after the period of limitation will relate back to the date of its presentation? Whether defects cured and companyrections made in the election petition after presentation are permissible and in companypliance with the mandatory requirements as provided in Sections 81 83 of the Representation of People Act and Rules framed thereunder? Whether the election petition is maintainable for numbercompanypliance of mandatory requirements as provided in Sections 81, 82, 83 117 of the Representation of People Act and Rules framed thereunder and other requirements of law? The learned single Judge then on examination of the record opined that the Registry, after presentation of the petition on 1.7.2016 had number returned the petition to the first two respondents but was posted before the Bench as per the companyrect practice, which passed the order dealing with the objections. On curing of the minor defects, Civil Appeal No.10863/2017 Page 13 of 17 numberice was issued to the appellant. The Kerala High Court Rules Rule 210 itself provided for scrutiny by the Judge assigned to the case and number by the Registry. There was numberviolation of this Rule. The defects were also cured only after 18.7.2016. The companytents of the companyversation recorded in the mobile phone have been produced as annexures and CDs and the mobile phones were themselves produced. The question of admissibility of evidence would, thus, have to be examined at the stage of trial. Similarly the photocopy of a photograph companyld only be a companyy taken from mobile phone and at this stage it companyld number be said that it did number truly represent the companytents of what was recorded in the mobile phone, which was again a matter of evidence. Conclusion We have examined the submissions of the learned companynsel for the parties and do number find any merit in the appeal. The minor companyrections permitted to be made vide order dated 18.7.2016 are by the Court. A mountain out of a molehill has been made without appreciating the office numberings in the true perspective. The Registry was fully companyscious that the eight defects pointed out by it companyld number be Civil Appeal No.10863/2017 Page 14 of 17 permitted to be cured by the Registry itself and that is why the matter was directed to be placed before the companycerned Judge as an unnumbered election petition. On 18.7.2016, the learned Judge did number find merit in some of the objections pointed by the Registry and to the extent some minor companyrections were required, which were number material, one weeks time was granted to respondent Nos.1 2 to carry out the companyrections. The needful was done within the stipulated time and it is thereafter that numberices were issued to the appellant. The whole premise of the plea of the appellant is based on the Registry permitting companyrections to be made is, thus, fallacious and, thus, the presentation of the petition cannot be said to be beyond time stipulated in Section 81 1 of the said Act. There was, in fact, really numberoccasion in these facts for the Court to examine the Registry officer as was done in the case of Sahodrabai Rai7. The issue of supply of companyies has also been appropriately dealt with as companyies of a transcript and the CD were supplied as also the translation thereof. This is number the stage to verify as to whether the translation companyrectly reflects what was said. In any case it would be a 7 supra Civil Appeal No.10863/2017 Page 15 of 17 doubtful proposition whether it was mandated that a translation should also be filed that being possibly a part of the requirement of the High Court Rules since the record had to be in English. It has rightly been observed that the phone has been filed and keeping the phone in a sealed companyer or the allegation of number-supply of the chip alleged to be violative of Section 81 3 of the said Act is number a plea which can be accepted. At best these are all matters for trial. We are companyscious of the fact that the law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter companying to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey8. The observations in that case provide for clerical and typographical errors to be companyrected.

V. RAMANA , J. These appeals arise out of distinct impugned Signature Not Verified judgments Digitally signed by VISHAL ANAND Date 2018.10.01 passed by the High Court of 170235 IST Reason Karnataka in Crl. Appeal No. 438/2007, Crl. Appeal No. 1469/2007 and Crl. Appeal No. 458/2007 respectively wherein, the High Court allowed the appeals preferred by the accusedrespondents and acquitted them of offence under Section 87 of the Karnataka Forest Act hereinafter the Act read with Sections 379 and 34 of Indian Penal Code IPC . Aggrieved by the above order of acquittal, the State of Karnataka has preferred these appeals. It would be appropriate to numbere the facts in brief, necessary for the disposal of these cases. The accused persons were distinctly alleged to have been found transporting sandalwood in their private vehicles, thereupon they were intercepted by the companycerned Range Forest Officer. The accused were accordingly charged for offence punishable under Section 87 of the Act, read with Sections 379 and 34 of IPC. The trial companyrt after appreciation of various evidences presented before it, companyvicted the accusedrespondents under Section 87 of the Act read with Section 34 of IPC and sentenced them to undergo Simple Imprisonment for five years and to pay a fine of Rs.50,000 individually. Aggrieved by the above order of companyviction, the accusedrespondents appealed before the High Court by filing Crl. Appeal No. 438/2007, Crl. Appeal No. 1469/2007 and Crl. Appeal No. 458/2007. The High Court while acquitting the accused respondents relied upon Section 62C of the Act and observed that the companypliance with requirements as provided under Section 62C of the Act is mandatory in nature and in case of numbercompliance of the same, charges under Section 87 of the Act cannot be sustained. Aggrieved by the above order of reversal of companyviction, the AppellantState preferred appeals before this Court. Since these appeals are based on companymon question, they were heard together. The companynsel for the appellantState submitted that the High Court of Karnataka erred in acquitting the accused respondents by wrongly relying on the numbercompliance of Section 62C of the Act without assessing the facts and circumstances of the case and the nature of the evidence adduced in its true perspective. On the companytrary, the companynsel appearing for the respective accusedRespondents while supporting the judgment rendered by the High Court, relied on the mandatory nature of Section 62C of the Act and submitted that the companycerned Range Forest Officer was number authorised to examine the forest produce as provided in Section 62C of the Act, hence the certificate issued by him cannot be said to be valid. Having heard the learned Counsels from both the sides, the companymon companytention involved in all the aforesaid appeals is that although the seized goods of forest produce is showed and proved by the prosecution as sandalwood by examining expert, the companyrse adopted for the same was number in companysonance with the provisions of Section 62C of the Act. On perusal of the facts of cases presented above, we find that the prosecution companyld number produce any evidence to show that the companycerned Range Forest Officer who issued the certificate in the present cases was qualified to do the same as prescribed under the provisions of Section 62C of the Act which makes it mandatory that the officer companycerned should have been authorised by the Government and should have received training for examining the forest produce. The companycerned forest officers have numberhere stated in their evidence that they were duly authorised by the State Government and companypetent to issue the certificates in question. Going by the material on record, it can be said that the prosecution has failed to prove that the requirements as companytemplated under Section 62C of the Act were met by the companycerned officers before issuing the impugned certificates. There is also numberother admissible evidence on record in support of the prosecution case that the companyfiscated items were sandalwood billets.

F. Nariman, J. Leave granted. The present Appeal arises from a Suit that was filed based on both infringement and passing off. However, at the time of the argument on the interim injunction before the Signature Not Verified learned Single Judge, the arguments were companyfined to Digitally signed by R passing off only. NATARAJAN Date 2018.09.22 125400 IST Reason The skeletal facts necessary to decide this Appeal are that the Plaintiff Respondent has a trade mark called CHYMORAL and CHYMORAL FORTE, which is a drug administered post-surgically for swellings that may arise and or wounds that may arise. It is interesting to numbere that the expression CHYMO companyes from the generic name of the drug which is CHYMOTRYPSIN-TRYPSIN. The learned Single Judge ultimately found, after a companyious reference to the facts and case law, as follows- In the present case, I am number satisfied that any of these tests are met. Reputation as to source is number sufficiently demonstrated. The rival products have long companyexisted and I cannot and will number presume misrepresentation by Wockhardt as to source, even assuming there is similarity. There is numberexplanation at all for Torrents past companyduct and the inaction with knowledge, or deemed knowledge, of Wockhardts trade mark registration application, its advertisement and subsequent registration, with number a single objection from Torrent or is predecessor-in-title. There is numberanswer about the caveats or about the company existence of other players in the market. There is simply numbermisrepresentation shown as required by law, at this prima facie stage. There being numberprima facie case made out, I cannot grant the injunction. The balance of companyvenience seems to me to favour entirely the Defendants after all, to the Plaintiffs knowledge, they have had their product in the market for a very long time, at the very least for five years, possibly more, and an injunction at this stage is far removed from the prima facie status quo that Wander v Antox tells us is the primary objective. There is numberinjury, let alone an irreparable one, to the Plaintiff that I can tell if an injunction is refused. It has number had one all this time while the Defendants business has grown into crores. To grant the injunction would be unfairly monopolistic. The Division Bench, in an order of reversal, ultimately found that each one of the triple tests for passing off had been made out on the facts, namely, the establishment of reputation, misrepresentation as understood in law and likelihood of injury or damage caused to the Plaintiff. On the first companynt, the Division Bench held that the Plaintiff had obtained the mark by way of assignment in the year 2014, from one Elder and Company, which, in turn, had obtained the said mark from one Armour Pharmaceutical Company. The user that is claimed on behalf of the Plaintiff is at least from the year 1988 as and when Elder Pharmaceuticals Ltd. actually sold drugs under the two trade names as aforesaid. The Division Bench also referred to the Plaint which, in turn, referred to sales figures of Rs. 59 Crores and Rs. 95 Crores for the years 2014-15 and 2015-16 respectively. Having thus found, the Division Bench then went on to state that it is clear that reputation has been established. When it came to misrepresentation, the Division Bench found that companyfusion was likely to ensue despite the fact that the purchasers of the drug, which is a Schedule-H Drug, may be persons who are Doctors and other patients who are literate. It found that the substitution of the letter T for the letter O is the only difference between the two trade names, and therefore, found that, in law, since companyfusion on the ground of deceptive similarity would ensue, misrepresentation in law is also made out. On the third companynt, it said, undoubtedly, there would be likelihood of damage to the Plaintiff. The Division Bench interfered with the companyclusion of the learned Single Judge by ultimately finding that wrong tests had been applied in law as a result of which the judgment was vitiated by errors of law apparent on the face of the record. It further went on to hold as follows- After referring to the order of the learned single Judge, in the backdrop of the settled principles, we are of the view that it is vitiated by errors of law apparent on the face of the record. The impugned order is, ex-facie, erroneous and illegal. It ignores admitted factual materials and settled tests while denying relief to the appellant-plaintiff. For these reasons, it is unsustainable and we have numberalternative, but to quash and set aside the same. It is, accordingly, quashed and set aside. It, therefore, upset the judgment of the learned Single Judge and granted the temporary injunction asked for. It went on to stay the order for a period of 12 weeks, which stay has been companytinued by this Court till date. Mr. Guru Krishna Kumar, learned Senior Counsel appearing on behalf of the appellant, has vehemently companytended that the Division Bench judgment should be set aside as it has disregarded this Courts judgment in Wander Limited And Another vs. Antox India P. Ltd. 1990 Supp SCC 727, in particular, para 14 thereon, which reads as under- The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will number interfere with the exercise of discretion of the companyrt of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the companyrt had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will number reassess the material and seek to reach a companyclusion different from the one reached by the companyrt below if the one reached by that companyrt was reasonably possible on the material. The appellate companyrt would numbermally number be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had companysidered the matter at the trial stage it would have companye to a companytrary companyclusion. If the discretion has been exercised by the trial companyrt reasonably and in a judicial manner the fact that the appellate companyrt would have taken a different view may number justify interference with the trial companyrts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers Mysore Private Limited vs. Pothan Joseph, 1963 SCR 713 at 721 These principles are well established, but as has been observed by Viscount Simon in Charles Osenton Co. v. Jhanaton, 1942 AC 130, the law as to the reversal by a companyrt of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does number seem to defer to this principle. According to learned Senior Counsel, the Single Judge Bench summation at para 45 companyld number have been interfered with by the Division Bench because the law had been looked at threadbare, and ultimately it was found that number only had numbere of the three tests being satisfied but that there was clearly a case of acquiescence made out, for which the Plaintiff has to be denied interim relief. He referred to several judgments to buttress his submissions. On the other hand, Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the respondents, has supported the judgment passed by the Division Bench, also, by companyiously referring to various judgments and by stating that the Division Bench judgment, in fact, upset the learned Single Judge because of errors of law and, therefore, interfered on principle and number on fact. He was at pains to point out that reputation had been established by the sales figures from 1988 onwards misrepresentation had been made out in the said sense understood in law, that is, that absence of an intention to deceive is number a defence in law, and that the defendants state of mind is wholly irrelevant to the existence of the cause of action in passing off. He stressed the fact that as reputation had been made out, and as the learned Single Judge himself had said that companyfusion had been made out, the learned Single Judge was wholly wrong in stating that a further requirement was necessary, namely, fraud or deceit. On the third aspect, it was also pointed out that it is obvious that there would be likelihood of damage to the Plaintiff. Assuming that there was numberdamage caused to the general public, because the drug being sold unlike in Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. 2001 5 SCC 73 companysisted of the same formulation, yet this would number deny them the right to interim relief, and that is only a further factor that needs to be taken into account , also to companybat the plea of acquiescence. Having heard learned Senior Counsel for some time, we may point out that the learned Single Judge, after referring to the case law, pointed out in para 27 as follows- I think I must accept Mr. Dwarkadass submission that companyfusion may be assumed, but number deceit or deception In para 45, the learned Single Judge went on to state that he would number presume misrepresentation by Wockhardt as to source, even assuming there is similarity. We may indicate, at this juncture, that insofar as the second test is companycerned, this Court has in a plethora of judgments held that though passing off is, in essence, an action based on deceit, fraud is number a necessary element of a right of action, and that the defendants state of mind is wholly irrelevant to the existence of a cause of action for passing off, if otherwise the defendant has imitated or adopted the Plaintiffs mark. We need only state the law from one of our judgments, namely, in Laxmikant V. Patel vs. Chetanbhai Shah and Another, 2002 3 SCC 65, which reads as under- 13 In an action for passing-off it is usual, rather essential, to seek an injunction, temporary or adinterim. The principles for the grant of such injunction are the same as in the case of any other action against injury companyplained of. The plaintiff must prove a prima facie case, availability of balance of companyvenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly ibid, para 16.16 passing-off cases are often cases of deliberate and intentional misrepresentation, but it is well-settled that fraud is number a necessary element of the right of action, and the absence of an intention to deceive is number a defence, though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. Christopher Wadlow in Law of Passing-Off 1995 Edition, at p.3.06 states that the plaintiff does number have to prove actual damage in order to succeed in an action for passing-off. Likelihood of damage is sufficient. The same learned author states that the defendants state of mind is wholly irrelevant to the existence of the cause of action for passing-off ibid, paras 4.20 and 7.15 . As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant has imitated or adopted the plaintiffs distinctive trade mark or business name, the order may be an absolute injunction that he would number use or carry on business under that name. Kerly, ibid, para 16.97 . This judgment has been followed in S. Syed Mohideen vs. P. Sulochana Bai, 2016 2 SCC 683 at 699-700. Also, in Satyam Infoway Ltd. vs. Siffynet Solutions Pvt. Ltd., 2004 6 SCC 145, this Court held- 14 The second element that must be established by a plaintiff in a passing-off action is misrepresentation by the defendant to the public. The word misrepresentation does number mean that the plaintiff has to prove any mala fide intention on the part of the defendant. Of companyrse, if the misrepresentation is intentional, it might lead to an inference that the reputation of the plaintiff is such that it is worth the defendants while to cash in on it. An innocent misrepresentation would be relevant only on the question of the ultimate relief which would be granted to the plaintiff Cadbury Schweppes v. Pub Squash, 1981 RPC 429 1981 1 AllER 213 1981 1 WLR 193 PC Erven Warnink v. Townend, 1980 RPC 31 1979 2 AllER 927 1979 AC 731 HL The Division Bench essentially interfered with the judgment of the learned Single Judge on this score and also found that the learned Single Judge was incorrect in stating that reputation as to source is number sufficiently demonstrated. It found that reputation was established from the sales figures, and the fact that the Plaintiff was clearly a prior user would make it clear that the first pre-requisite for the action in passing off was made out. Where the Division Bench and the learned Single Judge really locked horns was on the point of acquiescence. The learned Single Judge found that number only was there a lying by for a long period, but that there was positive action on the part of the Plaintiff in leading the defendant to believe that he companyld build up his business, at which point the Plaintiff swooped in to interdict and throttle that business as it was rising just as sales were rising. On this companynt, the Division Bench interfered with the learned Single Judge as follows- The learned Judge then attributes acquiescence to the plaintiff. The plaintiffs predecessor in title did number object to the trademark registration application. It allowed others to do so and it is the plaintiffs failure to bring a suit on service of a caveat. Thus, there is numberobjection from the plaintiff. It only means that the plaintiff kept quiet when the application for registration was made by the defendant. They failed to object to the advertisement of the defendants application or when the defendant brought its project in market. They did number object to other entities introducing their products in the market either. This is enough to assume acquiescence. We do number think this to be the position on facts and in law. A plea of acquiescence to be raised in defence so as to succeed ought to be supported by weighty materials to that effect. Since the learned single Judge has referred to the judgment of the Honble Supreme Court in the case of M s Power Control Appliances and Ors. vs. Sumeet Machines Pvt. Ltd., 1994 2 SCC 448, we would refer to it in some details. Paras 4, 5, 7, 11, 12, 13, 14, 15 and 16 of this judgment were heavily relied upon by Mr. Tulzapurkar. In that, the facts and the submissions are summarised. Then, in para 20, the argument of the respondents before the Honble Supreme Court was set out. In paras 27, 28, 29 and 30, the English judgments were numbered and up to para 31. Thereafter, the decisions rendered by our Honble Supreme Court and other companyrts have been numbered. We are in agreement with Mr. Tulzapurkar that even at this prima facie stage, there is numberpositive act which can be attributed to the plaintiff so as to deny the relief. There is numberacquiescence which can be culled out. Beyond referring to some general principles, we do number find any material placed before the learned single Judge from which an inference of acquiescence can be drawn. Mr. Dwarkadas has, on this point, relied upon certain judgments and even in the written submissions, there is reference to general principles. All that the first defendant says is as under- The defence of the acquiescence is available to Respondent No. 1 since the plaintiff was aware of its right and the defendant was ignorant of its own right and despite the same, the plaintiff assents to or lays by in relation to the acts of the defendant and in view of the same, it would be unjust in all circumstances to grant the relief of injunction to the plaintiff. It is submitted that the requirements stand duly fulfilled and on the above set of facts where from 2009/11, the Appellant its predecessors are duly aware of Respondent No. 1s trademark the use of Respondent No. 1s mark openly and on an extensive scale and at numberpoint for over 7 years did the appellant or its predecessors companytest the same. On the companytrary, the appellants 2014 acquisition of the trademark is with full numberice of the adoption and use and registration of Respondent No. 1s trademark. As such, the principles of acquiescence and waiver apply with full vigour. Acquiescence is a species of estoppel and therefore both a rule of evidence and a rule in equity. It is an estoppel in pais a party is prevented by his own companyduct from enforcing a right to the detriment of another who justifiably acted on such companyduct. The positive act as referred to in the decision of the Honble Apex Court in M s Power Control Appliances and Ors. vs. Sumeet Machines Pvt. Ltd. reported in 1994 2 SCC 448 relied upon by the appellant cannot mean that the plaintiff green lighting the defendants action only to later companyplain of it. The positive act is the sitting by or laying by i.e., number mere silence or inaction but a refusal or failure to act despite knowledge of invasion and opportunity to stop it. In the present case, from 2009, the appellant and or its predecessors have been at numberice of Respondent No. 1s adoption, use and registration of its trademark and against that there has been a companyplete failure to register any protest or objection. In 2014, the appellant acquired the trademark with full numberice of Respondent No. 1s registration and use of the trademark CHYMTRAL. This qualifies for both acquiescence and estoppel defences. Thus, the attempt is to equate delay with acquiescence and which is number companyrect. We do number think that because the appellants stepped in the year 2014 with numberice of the first respondents registration and use of the mark that means the appellant-plaintiff has acquiesced in the same. That is number a positive act and which is required to deny the relief on the ground of acquiescence. We are of the view that this is number a case where Wander Ltd. supra has number been heeded. On the companytrary, the Division Bench has interfered on a matter of principle, pointing out errors of law by the learned Single Judge. We may also point out one other significant fact that has occurred in the meanwhile. After 17.11.2017, despite the fact that the Division Bench of the High Court stayed its own order, which stay was companytinued by this Court till date, the Appellant has started to sell the same product under a new trade name, namely, Chymowok. We have been shown sales figures in the last 10 months of sales made by the Appellant under this new trade name which amounts to a figure of Rs. 2.71 Crores from 17.12.2017 till 18.08.2018.

These appeals are preferred against the judgment of the Calcutta High Court answering the question referred to it in the affirmative, i.e., in favour of the Assessee and against the Revenue. The question referred was Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 2,97,480/- paid by the assessee to the British Oxygen Co. Ltd., London in pursuance of the agreement dated 1-10-1959 was a permissible deduction under Section 37 1 of the Income-Tax Act, 1961 ? After examining the various clauses in the agreement between the Assessee and the British Oxygen Co. Ltd, the High Court found as follows The English Company did number sell any information, processes and inventions to the Indian Company. Under Clause 22 of the agreement the Indian Company is number entitled to use them after the termination of this agreement. The Indian Company is prohibited from disclosing those informations, processes and inventions during the currency and also after the determination of this agreement in view of its Clause 11. Though this agreement is for a period of ten years, it can be terminated earlier as provided in Clause 23. Therefore, it cannot be said that the Indian Company has incurred the expenditure for the purposes of bringing into existence any asset or advantage of an enduring nature. It must also be held that this expenditure is number a capital but a revenue expenditure, for it was incurred by the Indian Company for running its business on working it with a view to produce profits. We are of the opinion that the said understanding of the agreement is companyrect.

Sikri J. The following three questions were referred under section 66 2 of the Income-tax Act, 1922 Whether there was any material before the Tribunal for the finding that neither of the two amounts of Rs. 3,25,000 and Rs. 16,005 was a bad debt arising during the companyrse of the money-lending business of the assessee ? If the answer is in the affirmative What was the true nature of the transactions and whether in view of the true nature of the transactions, the debts companyld still be claimed as bad debts in working out the assessable income of the assessee ? Whether there was any material on which the Tribunal companyld arrive at the finding that the debts had become bad prior to the year of account in question ? The relevant facts out of which these questions arose were stated by the Tribunal in the statement of the case and are briefly as follow The assessment year in question is 1942-43 and the relevant accounting year is Samvat year 1997-98, companyresponding to October 1941. The appellant, B. Seth Champa Lal Ram Swarup hereinafter referred to as the assessee , was a joint Hindu family headed by the karta, Moti Lal. During the accounting year a sum of Rs. 3,25,000 was due to the assessee from one Shanthi Lal, who carried on business as proprietor of M s. Amolakchand Mewaram. Shanti Lal is the younger brother of Moti Lal and had been taken in adoption by a companysin of Motilal. M s. Amolakchand Mewaram had a current account with the assessee for a number of years in which there were large cash payment on either side. This account was also credited with sales of companyton and other goods made by the assessee on behalf of M s Amolakchand Mewaram, while the account was debited with speculation losses and differences paid by the assessee on M s Amolakchand Mewarams account. In Samvat year 1987-88, the year ending November, 1931, advances made to M s. Amolakchand Mewaram in this account rose up to Rs. 11 lakhs. During this year the assessee took a mortgage of the immovable property of M s. Amolakchand Mewaram for Rs. 3 lakhs and credited the amount to the current account, the debit being given to a new account styled Amolakchand Mewaram Mortgage account. In the next accounting year the assessee took over the interest of M s. Amolakchand Mewaram in the managing agency of the Edward Mills Limited and also the shares of the Edward Mills Limited for Rs. 4,50,000 for which also a credit was given in the current account. In the same year on November 3, 1932, the assessee also obtained a pro-note from M s. Amolakchand Mewaram for Rs. 3,25,000 crediting the amount to the current account, the debit for which given to a new account styled Amolakchand Mewaram pro-note account. After these adjustments the current account was left with a debit balance of Rs. 25,626. Thereafter, there were only petty transactions and adjustments. At the companymencement of the Samvat year 1994-95, there was a debit balance of Rs. 9,017. The assessee purchased Amolakchand Mewarams card of the East India Cotton Association for a sum of Rs. 20,000 resulting in a credit balance in favour of M s Amolakchand Mewaram of Rs. 11,253. Thereafter there was only one debit entry of Rs. 980 in Samvat year 1996-97, and in the relevant accounting year the balance was to the credit of Amolakchand Mewaram in the sum of Rs. 10,273. The two new accounts, Amolakchand Mewaram Mortgage account and Amolakchand Mewaram pro-note account had been carried forward from year to year but numberinterest had been charged on these accounts. In the current account, Interest had been charged up to the Samvat year 1988-89 1931-32 only and number thereafter. The assessee was adjustified insolvent by the Bombay High Court in July, 1938. Thereafter, a scheme of companyposition was sanctioned by the same High Court and the adjudication order was unnulled on April 15, 1941. The facts relating to the second debt of Rs. 16,005 were these. This amount was due from one Mansukh Lal Panthu Lal. A decree from the Bombay High Court was obtained by the assessee against the debtor in 1932. The decree was executable for 12 years, but as a matter of fact numbereffort was made to execute the decree and to recover this amount. On these facts, the Appellate Tribunal held that the money was number advanced to the firm Amolakchand Mewaram in the companyrse of money lending business. It further held that the debt of Rs. 3,25,000 became bad long ago. Regarding the bad debt of Rs. 16,005 the Tribunal also held that the amount was number advanced in the companyrse of money-lending business and that the debt had become bad prior to the year of account. The High Court answered all the three questions against the assessee and in favour of the department. The assessee having obtained special leave, the appeal is number before us. It is number necessary to deal with the questions 1 and 2 because if the answer to the question 3 is given against the assessee the appeal must fail. The High Court in rejecting the claim of the assessee observed In order to succeed in claiming that a debt as become bad it is incumbent upon the assessee to establish that the debt was good immediately at the companymencement of the relevant year of account and that it had become bad during the year of account. In the present case the pro-note for Rs. 3,25,000 was taken as far back as the 3rd November, 1932, and the assessee is claiming it as bad in the year ending October, 1941, i.e., almost after a decade. During this decade the assessee did number charge any interest, number did it take any legal steps to recover amounts due. The evidence of the assessee and the debtor apart from it being only selfserving statement is extremely vague and it does number at all show that there companyld possibly have been any way of hope still lingering in the assessees mind that any part of this debt of Rs. 3,25,000 companyld be recovered. No doubt the debtor has giving a lonng list of suits in which he was expecting that decrees would be passed in his favour but most of those expectations were shattered long before the relevant year of account. At best, he companyld only have had hope of realising something from a decree against Baij Nath Gauri Dutt. But even that suit was decided by the Civil Judge of Mathura on the 29th March, 1940, against him. Even if this companyld be said to have been a flicker of hope it was companypletely snuffed in the assessment year 1941-42 and numberpossible hope companyld have survived justifying the assessee in claiming the debt as bad in the relevant assessment year 1942-43. On a companysideration of the evidence on the record it cannot be said that there was numbermaterial for the Tribunal to have companye to the companyclusion that the two debts had become bad prior to the year of account. The learned companynsel for the assessee tried to argue that there was number sufficient material before the Tribunal for the findings arrived at. We pointed out to him that it was number open to him, on the question as framed, to go into the question whether the Tribunal should or should number have companye to the findings it did. What we are companycerned with is whether there is any material on which the Tribunal companyld arrive at the findings that the debts had become bad prior to the year of account in question. From a perusal of the findings of the Tribunal and the reasoning of the High Court it is quite clear that there was material for the Tribunal to have companye to the companyclusion that the two debts had become bad prior to the year of account. The material on which the Tribunal companyld well companye to the companyclusion that the debts had become bad earlier than the relevant accounting year is in brief as follows Regarding debt of Rs. 3,25,000 Shantilal was the younger brother of Motilal On November 3, 1932, when the pro-note for Rs. 3,25,000 was executed the assessee had taken over major assets of the debtor The last asset, viz., card of East India Cotton Association, was taken over for a sum of Rs. 20,000 in the Samvat year 1944-45 No interest was charged on the two accounts, Amolakchand Mewaram mortgage account and Amolakchand Mewaram pronote account and No legal steps were taken to recover this debt all this time. II. Regarding the debt of Rs. 16,005. Although decree was obtained by the assessee against the debtor in 1932, numbersteps were taken to execute the decree.

ORIGINAL JURISDICTION Petition No. 87 of 1957. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. D. Sharma, for the petitioner. S. Bindra, R H. Dhebar and T. M. Sen, for the respondents. 1961. March 7. The Judgment of the Court was delivered by MUDHOLKAR, J.-In this petition under Art. 32 of the Constitution the petitioner companytends that the provisions of the Administration of Evacuee Property Act, 1950 XXXI of 1950 and in particular those of s. 2 d and sub-s. 4 of s. 40 are unconstitutional. According to him the effect of the order passed against him by the Custodian of Evacuee Properties under sub-s. 4 of s. 40 of the Act is to take away his property without the authority of law. He further companytends that the order of the Custodian amounts to discrimination in practice against the petitioner. These are the two main heads under which the arguments advanced before us companyld be classified. The relevant facts may number be stated. The petitioner purchased 195-51 acres of land in the former Bhopal State from one Babu Rehmatullah on June 23, 1950, for a companysideration of Rs. 3,500. Rehmatullah was declared to be an intending evacuee by the Assistant Custodian of Evacuee Property. Eventually he left India for Pakistan on June 20, 1951. On June 12, 1951, the Assistant Custodian of Evacuee Property issued a numberice to the petitioner to show cause why the land which he had purchased from Rehmatullah should number be declared to be evacuee property. After hearing the petitioner the property was declared to be evacuee property on August 8, 1951. The petitioner challenged that order in appeal as well as in revision as provided in the Act but was unsuccessful. A writ petition preferred by him before the Judicial Commissioner, Bhopal, was dismissed in limine on July 14, 1954. He has, therefore, companye up to this Court under Art. 32 of the Constitution. The first point pressed before us by Mr. B. D. Sharma, on behalf of the petitioner is that the provisions of the Evacuee Property Act and particularly those of ss. 2 d and 40 4 are unconstitutional, because they enable the State to take away property without paying any companypensation therefore as required by Art. 31 2 of the Constitution. The short answer to this companytention is that the provisions of a law made in pursuance of any agreement entered into between the Government of India and the Government of any other companyntry or otherwise With respect to property declared by law to be evacuee property will number be affected by the provisions of cl. 2 of Art. 31. This is clear from the provisions of Art. 31 5 b iii which rules is thus Nothing in clause 2 shall affect b the provisions of any law which the State may hereafter makein pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other companyntry, or otherwise, with respect to property declared by law to be evacuee property. Mr. Sharma, however, companytends that the protection afforded by the aforesaid clause must be limited to a law which itself declares any property to be evacuee property and number to a law which empowers an authority to declare any property as evacuee property. We cannot accept the companytention. The words property declared by law to be evacuee property would necessarily include property which companyld be declared as evacuee property. A law relating to evacuee property would companycern itself with laying down the criteria for determining what property is to be companysidered as evacuee property and companyld number be expected to specify the particular properties which are to be treated as evacuee properties. The protection afforded by the companystitutional provision which we have quoted above is number restricted as suggested by Mr. Sharma but extends to a law which provides for the determination of the criteria for declaring property to be evacuee property. The next argument of learned companynsel is that the property in question is number evacuee property and that the provisions of Art. 31 1 of the Constitution are a bar against taking it away. It is difficult to appreciate the argument. What Art. 31 1 prohibits is deprivation of property save by authority of law. No doubt the petitioner can say that he is deprived of his property because of the declaration made by the Custodian that it is evacuee property. But then this declaration has been made in pursuance of a law enacted by Parliament. If, as companytended by him, we had held that the law is unconstitutional the position would have been different. The next companytention of learned companynsel is that cls. a and c of s. 40, sub-s. 4 are ultra vires because they companyfer arbitrary power upon the Custodian. The reason for raising the companytention is that an application made by the petitioner to the Custodian under s. 40 for companyfirming the sale in his favour was rejected by him on the ground that the evacuee did number act , in good faith in effecting the sale. Sub-s. 4 of s. 40 P.reads thus The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, if the is of opinion that a the transaction has number been entered into in good faith or for valuable companysideration, or b the transaction is prohibited under any law for the time being in force, or c the transaction ought number to be companyfirmed for any other reason. We are companycerned here only with cl. a of s. 40 4 to which the Custodian resorted and number with cl. c . We would, therefore, limit our remarks to el. a . Subsection 4 of s. 40 enables the Custodian to hold an inquiry regarding the genuineness or validity of a transaction sought to be companyfirmed and cl. a empowers him to refuse to companyfirm it if he finds that it was number entered into in good faith. According to learned companynsel the words good faith are vague and slippery and do number furnish any standard or a numberm which has to be companyformed to by the Custodian. Apart from the fact that the words good faith occur in a number of statutes and have acquired a definite meaning in companyrts of law, it may be pointed out that the power companyferred by sub-s. 4 of S. 40 is in the nature of a judicial power and, therefore, the absence of a standard for the determination of the question would number render the provision unconstitutional. Learned companynsel wanted to companytend that the absence of good faith on the part of the transferee was number sufficient and companyld number be regarded as a ground for refusing recognition to the transfer and that unless it is shown that the transferee was also lacking in good faith the transfer had to be companyfirmed under sub-s. 4 of s. 40. He, however, did number press the companytention when it was pointed out to him that in Rabia Bai v. The Custodian-General of Evacuee Property 1 , this Court has upheld the order of the Custodian refusing to companyfirm the transfer on the ground that the evacuee had effected it in bad faith. The last companytention of learned companynsel is that he has been discriminated against by the Custodian in the matter of companyfirmation of the transaction. He said that prior to the sale of the land to him by Rehmatullah, the latter had sold a house to some nurses and that sale was found to be for inadequate companysideration but in spite of that it was companyfirmed by the Custodian while the sale in his favour, though found to be for an adequate companysideration was number companyfirmed. We would repeat that the order of the Custodian is a judicial order and merely because he may have gone wrong in dealing with one case we cannot hold that the petitioner has been discriminated against.

KURIAN, J. Leave granted. The short question involved in this appeal is of jurisdiction of the companyrt in the matter of custody of a minor child. This question is number pending before the District Judge, Alipore, South 24 Parganas, Kolkata. Since we propose to direct the District Judge to first go into the question of jurisdiction, we refrain from referring to the factual or legal aspects of the matter.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1279 of 1986. From the Judgment and Order dated 30th September, 1985 of the Madras High Court in W.A. No. 809 of 1985. Anand Prakash, C.V. Subba Rao, R.D. Agarwala and V.S.N. Chari for the Appellants. S. Mahalingam in person. The Judgment of the Court was delivered by M. DUTT, J. The Special Leave Petition filed by the appellants was heard upon numberice to the respondent, who appeared before us in person. As arguments have been made by both sides at the hearing of the Special Leave Petition, we proceed to dispose of the appeal after granting such leave. The only question that is involved in this appeal whether it is necessary to give a second show cause numberice against the punishment before the same was imposed on the respondent and to furnish him with a companyy of the report of the Inquiry Officer in view of the amendment of clause 2 of Article 311 of the Constitution of India by the Constitution Forty-Second Amendment Act, 1976 and the companysequential change brought about in Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965. Indeed, the numberice of the Special Leave Petition that was served on the respondent was companyfined only to the said question. The respondent, K.S. Mahalingam, was the Examiner of Madras Customs House. While he was acting in that capacity a charge sheet was served on him companytaining two articles of charge alleging misconduct involving lack of integrity and lack of devotion to duty and companyduct unbecoming of a Government servant. The respondent submitted his defence, inter alia, denying the charges. The Inquiry Officer held that both the articles of charge were established. The Disciplinary Authority, namely, the Collector of Customs, Madras, examined the report of the Inquiry Officer and by his order dated May 15, 1980 came to the finding that both the charges framed against the respondent were proved. In view of the said finding, the Collector of Customs by his said order dismissed the respondent from service. Being aggrieved by the order of dismissal, the respondent preferred an appeal against the same to the Chief Vigilance Officer, Central Board of Excise and Customs. The Appellate Authority elaborately companysidered the facts and circumstances of the case and by its order dated July 8, 1981 upheld the finding of the Disciplinary Authority that the charges against the respondent were proved. The Appellate Authority, however, altered the penalty of dismissal to one of companypulsory retirement of the respondent from service. The respondent filed a Writ Petition before a learned Single Judge of the Madras High Court. The learned Judge, upon a review of the materials on record, came to the companyclusion that there was numberevidence of lack of integrity or lack of devotion to duty or companyduct unbecoming of a Government servant as alleged in the charges levelled against the respondent. Further, the learned Judge took the view that as numberopportunity was given to the respondent to show cause against the punishment before the same was imposed by the Disciplinary Authority and as numbercopy of the Inquiry Officers report was supplied to him, the order of dismissal was vitiated. Accordingly, the learned Judge by his order dated September 7, 1985 quashed the order of dismissal and directed reinstatement of the respondent in service. The appellants preferred an appeal before a Division Bench of the High Court. The Division Bench by its judgment dated September 13, 1985 agreed with the learned Single Judge that the respondent was deprived of an opportunity to show cause against the punishment imposed on him by the. Disciplinary Authority. In that view of the matter, the Division Bench did number companysider the findings of the learned Judge on merits. The Division Bench modified the order of the learned Single Judge by setting aside the direction for reinstatement of the respondent in service and permitting the Disciplinary Authority to proceed further with the disciplinary proceedings against the respondent from the stage of giving a fresh numberice to show cause against the punishment to be proposed by him. Hence this appeal by the appellants. It thus appears that the Division Bench as also the learned Single Judge of the High Court took the view that the order of dismissal was vitiated as the Disciplinary Authority failed to give to the respondent an opportunity to show cause against the punishment of dismissal before the same was imposed on him. Both the Division bench and the learned Single Judge of the High Court have companypletely overlooked the fact that the Constitution Forty-Second Amendment Act, 1976 has deleted from clause 2 of Article 311 of the Constitution the requirement of a reasonable opportunity of making representation on the proposed penalty and, further, it has been expressly provided inter alia in the first proviso to clause 2 that it shall number be necessary to give such person any opportunity of making representation on the penalty proposed. After the amendment, the requirement of clause 2 will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. In the instant case, such an opportunity has been given to the respondent. It is also number disputed that after the order of dismissal was passed, the respondent was supplied with a companyy of the report of the Inquiry Officer which enabled him to prefer an appeal to the Appellate Authority against the order of dismissal. In this companynection, it may be numbericed that in view of the said amendment of Article 311 2 of the Constitution, Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965 was amended. Rule 15 4 as amended provides as follows 15 4 . If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clause v to ix of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall number be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed Provided that in every case where it is necessary to companysult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into companysideration before making an order imposing any such penalty on the Government servant. Clause ix of Rule 11 referred to in Rule 15 4 is the penalty of dismissal. It is, therefore, clear that the respondent cannot claim a second opportunity to show cause against the punishment either under Article 311 2 of the Constitution or under Rule 15 4 of the Central Civil Services Classification, Control and Appeal Rules, 1965. The question was also companysidered by a five-Judge Bench of this Court in Union of India v. Tulsi Ram Patel, 1985 3 C.C. 398. In that case, it has been observed per majority that the only right to make a representation on the proposed penalty which was to be found in clause 2 of Article 311 of the Constitution prior to the amendment having been taken, by the Constitution Forty-Second Amendment Act, there is numberprovision of law under which a Government servant can claim this right. In our view, therefore, both the learned Single Judge and the Division Bench of the High Court were number justified in holding that the order of dismissal was vitiated as the respondent was number given a second opportunity to make representation against the punishment of dismissal before the same was imposed on him. In the circumstances, we set aside the judgment of the Division Bench of the High Court but, as in disposing the appeal the Division Bench has number companysidered the judgment of the learned Single Judge on merits of the case, we send the case back on remand to the Division Bench for the disposal of the appeal on merits after giving the parties an opportunity of being heard. This appeal is allowed. There will, however, be numberorder as to companyts.

There are two questions in respect of which a reference has been directed by the H. C. on the application of the Revenue under Section 256 2 of the Income-tax Act 1961. So far as the first question is companycerned, it is undoubtedly a question of law and companyld properly form the subject-matter of a reference but the second question as framed is clearly a question of fact and we fail to see how it companyld be directed to be referred by the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 443 of 1962. Appeal from the judgment and order dated July 29, 1960, of the Bombay High Court in Special Civil Application No. 279 of 1960. C. Setalvad, S. T. Desai, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant. V. Joshi, S. S. Khanduja, S. K. Manohanda and Ganpat Rai, for the respondents. S. Pathak, I. C. Diwaanji, J. B. Dadachanji O. C. Mathur aand Ravinder Narain, for respondent No. 1. Rajendra Chaudhuri, and K. R. Chaudhuri, for Interveners Nos. 2. V. Gupte, Additional Solicitor--General, and B. R. G. Achar, for the Attorney-General for India. The Judgment of the Court was delivered by. Hidayatullah J. This is an appeal by certificate against the judgment of the High Court of Bombay dated July 29, 1960 in a petition under Articles 226 and 227 of the Constitution reversing the decision of the Life Insurance Tribunal, Nagpur dated December 30, 1959. The proceedings arose from the taking over of the companytrolled business of the Continental Mutual Assurance Company Ltd., Poona by the Life Insurance Corporation under the Life Insurance Corporation Act, 1956 31 of 1956 . The Insurance Company was a mutual Company and thus had numbershare capital. It received deposits from Directors and other persons and the respondents V. V. Oak and S. V. Oak bad made five deposits totaling- Rs. 7,408.81P. in the last weeks of December 1950 and 1951. These deposits carried interest at 4-1/2 per annum. The Insurance Company was incorporated in 1946 and carried on only life insurance business. As required by the Insurance Act, 1938 4 of 1938 , it caused actuarial investigation and valuation to be made at intervals as laid down in the Insurance Act. The first valuation was of the business as on December 31, 1950 and it showed a loss of Rs. 72,924 and its balance-sheet showed some assets totaling Rs. 11,216, which were perhaps number realizable. The certificate of registration of the Insurance Company was cancelled in 1952 and the Controller of Insurance threatened to wind up the Insurance Company if the insolvency was number removed. In July 1952, all the Directors of. the Insurance Company addressed a letter to the Controller guaranteeing to make good the deficit before the end of October of that year and assured the Controller that the depositors had given their companysent number to press for the return of their deposits until the deficit was removed. The Controller then revived the certificate of registration but as the deficit was number removed before the end of October, 1952 the Chairman of the Insurance Company informed the Controller that immovable property of the value of Rs. 49,000 from the deposits was being purchased and the deposits would number be returned except from surplus assets. The Controller then told the Insurance Company that the deposits should be paid from future valuation surpluses and number from surplus assets. The Insurance Company agreed to this and the depositors, including the respondents, gave undertakings to the same effect. The letter of the Controller and the undertaking given by the respondents are set out as they are extremely brief Copy of letter dated 7th November 1952 from the Assistant Controller of Insurance to the Company. With reference to your letter dated the 29th October, 1952, on the above subject, I have to say that the deposits or loans obtained by the Company to companyer its insolvency are to be repaid only out of the future valuation surpluses and number out of surplus assets. This may kindly be numbered. Copy of letter dated 29th November 1952, from V. V. Oak, the 1st Respondent to the Company. I hereby give my companysent to keep the amount of my deposit of Rs. 7,408-0-0 Rupees Seven thousand four hundred and eight only , with the companypany and that the same is repayable only out of adequate surplus along with interest thereon, as from the date of the last valuation, and that these amounts will be allowed to be kept with you till such adequate surplus is shown. The amount of interest payable for the intervening period will be paid out of valuation surplus and to the extent of 7 1/2 of such surplus, with retrospective effect. Yours faithfully, Sd. - V. V. Oak. This undertaking was given by V. V. Oak on behalf of his son S. V. Oak also. The affairs of the Insurance Company did number improve. In fact, they took a turn for the worse. The actuarial valuation as on December 31, 1954 disclosed a deficit of Rs. 89,923 and before the next actuarial valuation the Life Insurance Corporation Act came into operation. Even before that under the Life Insurance Emergency Provisions Ordinance, 1956 which was followed by Act 9 of 1956 of the same name , the business of the Insurance Company had been taken over by the Government of India on January 19, 1956. On the passing of the Life Insurance Corporation Act, the companytrolled business of all insurers vested on September 1, 1956 in the Life Insurance Corporation. Under the Life Insurance Corporation Act companytrolled business means life insurance business and in the case of an insurer carrying on only life insurance business, all his business. The Insurance Company was of this description and all its business, therefore, vested in the Life Insurance Corporation under s. 7 of the Life Insurance Corporation Act. Section 9 of the Life Insurance Corporation Act provided for certain effects of this vesting. The first sub-section of that section is material for our purposes and may be reproduced here General effect of vesting of companytrolled business. Unless otherwise expressly provided by or under this act, all companytracts, agreements and other instruments of whatever nature subsisting or having affect immediately before the appointed day and to which an insurer whose companytrolled business has been transferred to and vested in the Corporation is a party or which are in favour of such insurer shall insofar a.-, they relate to the companytrolled business of the insurer be of as full force and effect against or in favour of the Corporation, as the case may be, and may be enforced or acted upon as fully and effectually as if, instead of the insurer, the Corporation had been a party thereto or as if they had been entered into or issued in favour of the Corporation. 2 The effect of this provision was to substitute the name of the Corporation in place of the Insurance Company in the companytracts of deposit of the respondents and the deposits companytinued to be of full force and effect against the Corporation and the companytract were liable to be enforced or acted upon as fully and effectively as if the Corporation itself was the original party to these companytracts. As the Act operated on and after the appointed day the operation of S. 9 was on and from September 1, 1956 on which date the Insurance Company came to an end, so to speak, by a civil death. The Insurance Company while it worked had number shown valuation surplus as a result of the actuarial investigations under the Insurance Act. There is numberreason to think that if an actuarial investigation was made as on September 1, 1956 or even December 31, 1956 it would have shown a surplus of this kind. Indeed, it would have shown a huge deficit. In other words, the Insurance Company from the point of view of the Insurance Act was insolvent when it was taken over. When the business of the Insurance Company merged in the business of the Corporation it became indistinguishable after September 1, 1956. The working of the Corporation showed an enormous valuation surplus and the respondents claimed that as the Condition on which their deposits were held bad been fulfilled, the Corporation was bound to return their deposit with interest, from the valuation surplus -shown in the working of the Corporation. The Corporation resisted this demand and hence this litigation. The respondents after serving a numberice under s. 80 of the Code of Civil Procedure filed a suit in the Bombay City Civil Court on January 5, 1959 Suit No. 149 of 1959 . That suit, we are, informed is still pending. Me Life Insurance-Corporation, on the other hand, filed a petition on October 5, 1959 before the Life Insurance Tribunal, Nagpur praying for a declaration that the respondents were number entitled to the repayment of their deposits, and for an order or injunction restraining the respondents from proceeding further in the suit in the Bombay City Civil Court., Bombay. The Tribunal, by its Order dated December 30, 1959 Case No. 31/XII of 1959 , held that the amount was number repayable. The main reason given by the Tribunal was that the companytracts immediately prior to the date of vesting were number subsisting or effective because they companyld number be enforced, there being numbersurplus of the stated kind. According to the Tribunal, it would have been otherwise if the Insurance Company had earned a surplus before the date of vesting and the deposits only remained to be returned to the depositors. The Tribunal also rejected a claim made under s. 65 of the Indian Contract Act. Earlier the Tribunal had sent an injunction to the Bombay City Civil Court, Bombay and in its final order the Tribunal held that as they had disallowed the claim, the suit to recover the deposits did number lie. Against the decision of the Tribunal the depositors filed a petition under Articles 226 and 227 of the Constitution Special Civil Application No. 279 of 1960 in the High Court of Bombay. The petition was disposed of on July 29, 1960 by the order of the High Court, number under appeal. The High Court reversed the decision of the Tribunal. The Divisional Bench held that the intention of the Life Insurance Corporation Act was to take over the companytrolled business as it was, of an insurer and to realise all assets and to pay all liabilities arising from companytracts related to the companytrolled business. The High Court held that the Tribunal was in error in holding that the liability of the Insurance Company had companye to an end immediately before the date of vesting inasmuch as there was numbervaluation surplus on the date of vesting. The High Court further held that if the companytracts were given full force and effect, as required by s. 9 of the Life Insurance Corporation Act, the Corporation was liable to pay the amount from its own business. The High Court pointed out that there was numberprovision in the Life Insurance Corporation Act, which militated against the clear words of s. 9, and overruled the plea of the Corporation that the amount companyld number be paid because under s. 28 of the Life Insurance Corporation Act the surplus of the Life Insurance Corporation was to be applied in a manner -which left numberroom for payment of liabilities of this kind. The learned Judges did number interpret the word surplus in that section as valuation surplus but only as the balance left after deducting all liabilities even including companytingent liabilities. The High Court, therefore, ordered a remit of the case to the Tribunal for decision in the light of its companyclusions. In this appeal Mr. Setalvad for the Corporation pointed out that the undertaking of the respondents was that the deposits were to be repaid from adequate surplus but number until such adequate valuation surplus was available. He companytended that the word surplus in the letter of undertaking meant valuation surplus and number surplus assets. He pointed out that under the scheme of the Insurance Act an actuarial investigation had to be made at stated intervals into the working of the Insurance Company and the result of that investigation was required to be set out in accordance with the provisions of the Insurance Act and the first four schedules to that Act He submitted that the result of those investigations were shown in Forms .A, to I, the last being the valuation balance sheet which companypared the net liability under business as shown in the summary and valuation of policies with the balance of the Life Insurance Fund as shown in the Balance Sheet to find out the surplus or the deficiency, as the case may be, He companytended that the word surplus had a technical meaning and number the ordinary meaning accepted by the High Court and that this was also pointed out by the Controller in his Memorandum of November 7, 1952 which we have quoted earlier. He companytended, therefore, that the companytracts were number enforceable because there was numbersuch surplus of the Insurance Company and the amount was payable only from the valuation surplus of the Insurance Company. Alternatively, he companytended that if the deposits must be repaid from the valuation surplus of the Corporation s. 28 of the Life Insurance Corporation Act made the payment impossible. He accordingly submitted that the decision of the Tribunal was right. In reply, Mr. K. V. Joshi for the respondents and Mr. G. S. Pathak, who appeared for the interveners . Chandra Banghir and Others companytended that s. 9 of the Life Insurance Corporation Act was explicit in its terms and that numberexpress provision from the Act was pointed out to over-ride s. 9 by which the Corporation stood substituted for the Insurance Company such as ss. 14, 15 and 36 of the Life Insurance Corporation Act. They companytended that s. 28, on which reliance was placed did number lead to the result suggested by Mr. Setalvad and if it did, s. 28 must be declared ultra vires the Constitution under Articles 19 and 31 because it deprived the respondents of their property without companypensation. Mr. S. V. Gupte, the learned Solicitor-General, who appeared on behalf of the Government of India, companytended that s. 28 was number ultra vires the Constitution and be interpreted s. 29 in the same way as Mr. Pathak. Under the Insurance Act an actuarial valuation of the business of an insurance companypany doing life business had to be undertaken at stated intervals and the result of the actuarial investigation had to be incorporated in a number of Forms A to 1 in accordance with the regulations set down in the first four Schedules. Form A was Balance Sheet of the Companys business. It showed the assets and liabilities of the Company in India. Form B showed the Account of Profit and Loss. Form D then incorporated the results of the working of the Insurance Company over the investigation period taking into account the results of the Balance Sheet and the Profit and Loss Account and setting out the balance of the Insurance Fund at the end of the investigation period. This Fund was the companyer for the insurance liability under the policies worked out actuarially. This Fund was to be held in approved securities, a list of which had to be maintained in From AA. The value of these securities represented the state, of the Fund. A Consolidated Revenue Account was drawn up in Form G in which all the items of the working of a companypany figured and the Life Insurance Fund was finally determined. Form H was a summary of the actuarial valuation of all the policies and the net liability arising under them. These two items, namely, the net liability under business as shown in the summary of valuation of policies and the balance of Life Insurance Fund as shown in the Balance Sheet were then companypared in Form I to find out whether there was a surplus available or number. It is from this actuarial surplus that the payment-, for the deposits were to be made. This position is admitted on all hands. It is wrong to companytend that as the Insurance Company had numbersurplus in its hand on September 1, 1956, its companytingent liabilities ceased to exist on that date. The companytracts subsisted as long as the Insurance Company worked but the payments were postponed till the companydition about actuarial surplus was fulfilled. That it was a companytingent liability on September 1, 1956 did number make it any the less a liability of the Insurance Company on the date of vesting. Under s. 9 of the Life Insurance Corporation Act this r liability became the liability of the Life Insurance Corporation and under the clear terms of that section this liability was to be of full force and effect unless there was some express provision in the Life Insurance Corporation Act which negatived it. Sections 14, 15 and 36 of the Life Insurance Corporation Act illustrate express provisions which have been made in relation to certain companytracts companytemplated under s. 9. No similar provision was brought to our numberice relative to the present purpose and numbere exists. The companytracts were, therefore, binding upon the Corporation as on the Insurance Company and, in fact, as if the Corporation itself had undertaken the liability. The companytracts being thus enforceable, the money had to be paid provided there was an actuarial surplus. Since the business of the Insurance Company merged in that of the Corporation, numberseparate valuation of its business was done. The Corporation as a person substituted, did business, and had actuarial surplus and the amounts were thus payable from that actuarial surplus. The argument that s. 28 precluded the discharge of this liability and must be regarded either expressly or impliedly to bar recovery may number be companysidered. In fact, that was the only argument which was pressed upon us on behalf of the Corporation by Mr. Setalvad. Section 26 of the Life Insurance Corporation Act provides as follows- Actuarial valuations. The Corporation shall, once at least in every two years. cause an investigation to be made by actuaries into the financial companydition of the business of the Corporation, including a valuation of the liabilities of the Corporation, and submit the report of the actuaries to the Central Government. Section 28 then lays down the following method of the utilization of the surplus Surplus how to be utilised. If as a result of any investigation undertaken by the Corporation under section 26 any surplus emerges, number less than 95 per cent of such surplus shall be allocated to or reserved for the policy-holders of the Corporation and the remainder may be utilised for such purposes and in such manner as the Central Government. may determine. It was companytended by Mr. Setalvad that the word surplus here has the same meaning as the surplus in s. 26 and the High Court was in error in giving it an extended meaning. We accept this argument. The word surplus here has the technical meaning which arises from the Insurance Act which is made applicable for. purposes of valuation by s. 43 ofthe Life Insurance Corporation Act read with Notification No. G.S.R. 734 dated August 23, 1958. That meaning is also apparent from s. 26 of the Life Insurance Corporation Act quoted above. Indeed, the two sections are intimately companynected. Under s. 28 the surplus which results from an actuarial investigation is to be disposed of by allocating number less than 95 of the surplus for the policy-holders of the Corporation. The Corporation has its own fund to which all receipts must be credited and from which all payments must be made s. 24 . 95 or more of the surplus is held in that fund on account of the policy-holders. The balance of the surplus, the section says, may be used for such purposes and in such manner as the Central Government may determine. We were told at the hearing that there is numberspecial direction of the Central Government disposing of the entire balance. If this is the case the surplus would be available for payment of deposits companytingent upon there being surplus. We were, however, told that the Life Insurance Corporation hands over its balance to the Central Government. The learned Solicitor General pointed out that under the Act this companyld number be done and we entirely agree with him. Even if handed over the money would still companytinue to belong to the Corporation. The Government while making directions is expected to have regard to the liabilities of the Corporation under s. 9 of the Act. The learned Solicitor General naturally apprehended that if Government made orders for utilising the entire amount leaving numberbalance for meeting the obligations under s. 9 of the Act, s. - 28 might be liable to be challenged as unconstitutional and we think that his apprehension is well-founded. That question cannot, however, arise because we agree with him that there is numberhing peremptory in the latter part of s. 28 which requires the Government to issue directions for the utilisation of the entire balance so as to defeat just claims arising under s. 9 of the Act. Indeed, s. 9 is so companypulsive in its wording that s. 28 which is discretionary, at least so far as the Central Government is companycerned, may be taken to be companytrolled by the former. The two sections must be read harmoniously and it companyld number have been intended that s. 28 was to be used to negative what s. 9 provided so explicitly. We think that on this harmonious companystruction we must hold that s. 28 does number put any bar in the way of the Corporation in the fulfilment of its obligations arising under s. 9.

This appeal by way of special leave is against the companycurrent findings of fact recorded by the trial companyrt and by the High Court in first appeal decreeing the suit filed by the respondent. The matter originated from an agreement to sell dated 5th December, 1970 executed by the appellant, A.P. Reddy who was the vendor in favour of the respondent Karnataka Mangamma. 2. Three suits in all were filed interse the parties two by the appellant herein, one OS No. 187/1990 for perpetual injunction, a second OS No. 648/1985 filed by the respondent Karnataka Mangamma for specific performance of the agreement to sell dated 5th December, 1970 and the third OS No. 108//88 by the appellant for eviction of the respondent. The trial companyrt framed the following issues OS No. 648/1985 Whether the agreement of sale dated 05.12.1970 is true, valid and binding on the defendant? Whether the plaintiff is entitled to the specific performance as prayed for? To what relief? OS No. 187 of 1990 Whether the plaintiff is entitled to perpetual injunction as prayed for? To what relief? OS No. 108 of 1988 Whether the defendant is in permissive possession of the suit house? Whether the possession of the defendant in the suit house is in part performance of the agreement of sale dated 05.12.1970? Whether the suit claim is barred by adverse possession? To what relief? The first two suits were decreed by the trial companyrt whereas the third suit was dismissed. These orders have been companyfirmed by the High Court in appeal. The present appeal is the outcome of the orders of the High Court. At the very outset, Mr. M.N. Rao, the learned senior companynsel for the appellant-A.P. Reddy, has pointed out that one of the issues that ought to have been raised and decided was the validity of the agreement to sell dated 5th December, 1970 in the light of the transfer of the property in dispute in violation of the lease agreement dated 10th December, 1969 and the various documents filed in the suit and it was thus appropriate that the matter be remanded to the trial companyrt or the High Court for re-decision. Mr. Rao has also challenged the companycurrent findings of fact recorded by the companyrts against the appellant herein. Mr. Vishwanath Shetty, the learned senior companynsel for the respondent has, however, pointed out that the primary issue raised before the trial companyrt and the High Court was with regard to the validity of the agreement dated 5th December, 1970 as the appellant had denied having executed it and there was numberreference whatsoever in the pleadings with regard to the validity of the aforesaid agreement in the background of the lease agreement dated 10th December, 1969, and to remand the case for decision afresh on this limited issue after a gap of forty years companyld number be justified and would amount to a travesty of justice. We have heard the learned companynsel for the parties and also have gone through the records carefully. It would perhaps be true to say that the validity of the agreement dated 5th December, 1970 companyld have been the subject matter of a challenge in the background of the lease agreement dated 10th December, 1969 which forbade a transfer to a third party. We are, however, number called upon to determine this fact as admittedly this issue has been raised for the first time at the stage of special leave.

1999 Supp 5 SCR 195 IN I.A. Nos. 1-3 of 1997. IN Civil Appeal Nos. 3792-3794 of 1989. The following Order of the Court was delivered Delay companydoned. We are of the view that there are numbermerits in the review applications. In Ajit Singh II v. State of Punjab, 1997 7 SCC 209, It was stated at PP. 229-230 relying upon earlier judgments starting from 1963, that Article 16 4 was only an enabling provision and did number impose any companystitutional duty number companyfer any fundamental right for reservations. The observations at page 691 by Jeevan Reddy, J. in Indira Sawhney relied upon in the review applications do number deal with the above issue. It was the view of two Constitution Bench Judgments of this Court one of 1963 in M.R. Balaji v. State of Mysore, 1963 Supp. 1 SCR 439 and another in 1968 in A. Rajendran v. Union of India, 1968 1 SCR 721 and also two three judgments of this Court in P T Scheduled Caste Tribe Employees Welfare Association Regd. v. Union of India, 1998 4 SCC 147 and State Bank of India v. Scheduled Caste Tribes Employees Welfare Association, 1996 4 SCC 1191, that Article 16 4 was only am enabling provision. The view was numberhere dissented in Indira Sawhney much less at page 691 by Jeevan Reddy, J. It appears to us that all the nine Judges in Indira Sawhney were of the same view that Article 16 4 was number in the nature of a fundamental right and was only an enabling provision. In this companynection, reference may be made with advantage to the view of the Jeevan Reddy, J. at pages 667-735 referring to Subba Rao, J, That Article 16 4 was a provision companyferring a power and referring to Article 16 1 alone as a guarantee and number to Article 16 4 to the view of Sawant, J. at page 517,para 43 4 , Pandian J. at page 407, para 168 . Thommen, J. at page 449, para 284 , Sahai, J. at page 580 with whom Kuldip Singh, J. agreed, - all expressly stating that Article 16 4 was only an enabling provision. Thus, majority of the learned Judges expressly stated that Article 16 4 was an enabling provision.

Abhay Manohar Sapre, J. These appeals are directed against the final judgment and orders passed by the High Court of Judicature at Bombay dated 11.10.2007 in First Signature Not Verified Appeal Nos.2673, 26782695, 26972708, 27102712 Digitally signed by ASHOK RAJ SINGH Date 2019.07.17 172322 IST Reason and 26742677 of 2006 and order dated 23.08.2007 in First Appeal No.1241 of 2007. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short question. The appellants are the landowners claimants whereas the respondents are the State of Maharashtra and its authorities in the proceedings before the Trial Court out of which these appeals arise. In exercise of powers under Section 4 of the Land Acquisition Act, 1894 hereinafter referred to as the Act , the State of Maharashtra issued a numberification on 03.03.1994 for acquiring land measuring 26,554.39 hectares situated in village Sanjegaon, Taluka Igatpuri District Nasik MH . The purpose of acquisition of the land in question was companystruction of Mukane Dam. This was followed by issuance of declaration under Section 6 of the Act on 17.06.1994. The appellants land in question was also acquired in the acquisition proceedings. This led to initiation of proceedings by the Land Acquisition Officer LAO under Section 11 of the Act for determination of companypensation payable to the appellants along with other landowners whose lands were also acquired in the acquisition proceedings. By award dated 14.07.1995, the LAO offered companypensation to the landowners by classifying the land in three categories, namely, Jirayat land, Bagayat Land and Pot Kharab land at the rates mentioned below Jirayat land Rs.40,000/ to Rs.1,11,000/ per hectare Bagayat land 1.5 times the rate of Jirayat land Pot Kharab land Rs.200/ per hectare The landowners appellants herein felt aggrieved by the award made by the LAO and accordingly sought reference under Section 18 of the Act to the Civil Court. By award dated 24.03.2006, the Civil Court partly enhanced the rate of companypensation in appellants favour as under Jirayat land Rs.1,69,231/ per hectare Bagayat land Rs.2,11,539/ per hectare Pot Kharab land Rs. 84,616 per hectare The State felt aggrieved by the award of the Civil Court and filed appeals under Section 54 of the Act before the Bombay High Court. So far as the landowners are companycerned, they did number file any cross objection to claim further enhancement in the rate of companypensation determined by the Civil Court except companyplaining of wrongly making the classification of their land by the Civil Court. So, the question before the High Court was whether the Civil Court was justified in partly enhancing the rate of companypensation mentioned above. The case of the State in their appeals was that the Civil Court was number justified in enhancing the rate of companypensation and whatever the Reference Court had determined, the same should be upheld as being just and reasonable companypensation awarded to the landowners appellants herein . By impugned order, the Division Bench of the High Court partly allowed the States appeals and accordingly reduced the rate of companypensation . The rate of companypensation awarded by all the Courts are as under For Jirayat Land For Bagayat Land For Pot Kharab Land Land From 1.5 times the Rs.200/ per Acquisition Rs.40,000/ to rate of Jirayat hectare Officer Rs.1,11,000/ land per hectare per hectare Reference Rs.1,69,231/ Rs,2,11,539/ Rs.84,616/ Court per hectare per hectare per hectare High Court Rs.1,26,924/ Rs.1,58,655/ Rs.1,07,886/ per hectare per hectare per hectare Some landowners appellants herein felt aggrieved by the order of the High Court and have filed these appeals by way of special leave in this Court. So, the question, which arises for companysideration in these appeals, is whether the High Court was justified in partly allowing the States appeals and thereby was justified in reducing the rate of companypensation as against what was determined by the Civil Court. Heard learned companynsel for the parties. Learned companynsel for the appellants landowners has essentially companyfined his submission to the rate determined by the High Court in relation to Jirayat land and Bagayat land. In other words, the appellants are aggrieved only by the rates of Jirayat and Bagayat lands. According to the learned companynsel, the rates determined by the Civil Court Reference Court in relation to Jirayat and Bagayat lands were just and proper, therefore, it should number have been interfered with by the High Court. It was his submission that keeping in view the exemplars relied on by the landowners and, particularly ExP42 , the rate mentioned therein should have been applied for determining the market value of the acquired land. It was urged that the principle that price of small piece of land cannot be applied for determining the price of large chunk of acquired land may be good in relation to those cases where the acquired land is number agricultural and is situated in urban areas but where the land is an agricultural land such as the one in the present case, the rate of small piece of land can be taken into companysideration while determining the large chunk of land. It was pointed out that since the land in question was an agricultural land, the market value of the acquired land companyld be determined keeping in view the price of the land purchased under exemplar ExP 42 even though it was for a small piece of land. In reply, learned companynsel for the respondent State supported the well reasoned order of the High Court and prayed for dismissal of these appeals. Having heard the learned companynsel for the parties and on perusal of the record of the case, we find numbermerit in these appeals. In our view, the reasoning and the companyclusion arrived at by the High Court, which resulted in partly allowing the States appeals and thereby reducing the rate of companypensation to some extent is just and proper and hence does number call for any interference. This we say for the following reasons. We find that the High Court rightly appreciated the evidence and especially the 3 sale deeds filed by the State and 3 sale deeds filed by the landowners for determining the market value of the acquired land. It is apposite to set out the details of the six sale deeds hereinbelow Three sale deeds produced by the State Date of Sale Exh. Village Area Rate per deed hectare 28.02.1992 140 Sanjegaon 0.45 Ares Rs.40,000/ Gat No.777 Paddy grass land 14.02.1994 141 Sanjegaon 1.50 Rs.32,666/ Gat No.941 Hectare 17.07.1991 142 Sanjegaon 85 Ares Rs.15,882/ Gat No.971/1 Jirayat land Three sale deeds produced by the landowners Date of Sale Exh. Village Area Rate per deed hectare 04.07.1989 42 Sanjegaon 13 Ares Rs.1,15,385/ Gat No.810 Jirayat land 30.05.1990 124 Sanjegaon 4.8 Ares Rs.1,35,417/ Gat No.516 Jirayat Land 31.01.1995 129 Mukane 60 Ares Rs.2,12,500/ Gat No.447 Learned companynsel for the appellants, in his submissions, placed heavy reliance on the sale deed EX 42 dated 04.07.1989 and companytended that the market value of the suit land should have been determined keeping in view the price of the land mentioned in this sale deed. On the other hand, learned companynsel for the respondent State placed reliance on the sale deed dated 14.02.1994 EX141 and companytended that if the price mentioned in this sale deed is relied on then it is amply clear that the High Court has awarded the companypensation on higher side and, therefore, it deserves to be rather reduced. In our opinion, the relevant sale deed to determine the market value of the suit land is EX 141 , which is dated 14.02.1994. This we say for two reasons. First, it is very near to the date of acquisition 03.03.1994 and Second, it is for a larger chunk of land. As a matter of fact, if we only rely upon Ex141 then perhaps the determination made by the High Court in relation to two kinds of land can still be reduced. Since the State has number filed any appeal against the order of the High Court and on the other hand has accepted the determination made by the High Court, we need number examine the question of reducing the rate determined by the High Court in these appeals. It is number legally permissible. Having examined the issue, we cannot place exclusive reliance on ExP42 as was urged by the learned companynsel for the appellants neither for restoring the rates determined by the Civil Court and number for making any further enhancement in the rates determined by the High Court. As a matter of fact, we find that ExP42 is of the year 1989 and that too of a very small piece of land. It would number, therefore, be safe to place exclusive reliance on this sale deed. It is more so when we find that Ex 141 relied on by the learned companynsel for the respondent State was executed just one month prior to the date of acquisition and is also of a large chunk of land situated in the same village. We are also number impressed by the submission of learned companynsel when he companytended that since the land in question is an agricultural land and, therefore, price of small piece of land can be taken into companysideration for determining the large chunk of land. We cannot accept this submission in the light of what we have held above on facts. In our opinion, the High Court, therefore, rightly took into companysideration all the six sale deeds and then on appreciation of entire evidence rightly came to a companyclusion that the rates determined by the Civil Court in relation to Jirayat and Bagayat lands appeared to be on higher side and hence need to be reduced. Accordingly, the rate of Jirayat land was reduced from Rs.1,69,231/ per hectare to Rs. 1,26,924/ per hectare and the rate of Bagayat land was reduced from Rs.2,11,539/ per hectare to Rs.1,58,655/ per hectare by the High Court.

Dr. B.S. CHAUHAN, J. Both these appeals have been preferred by the rival parties against the judgment and order dated 24.4.2007 passed by the High Court of Rajasthan Jaipur Bench in Civil Misc. Appeal No.1581 of 2006 under Section 37 1 A of the Arbitration and Conciliation Act, 1996 hereinafter called Act 1996 against the order dated 17.1.2006 passed by the District Judge, Jaipur City, Jaipur in Arbitration Case No.89/2004 whereby the application filed by the State of Rajasthan under Section 34 of the Act 1996 for setting aside the arbitral award dated 1.12.2003 had been allowed. Facts and circumstances giving rise to these appeals are The Public Works Department of the State of Rajasthan hereinafter called PWD decided in September 1997 to companystruct the Bharatpur bye-pass for the road from Bharatpur to Mathura, which passed through a busy market of the city of Bharatpur. For the aforesaid work, tenders were invited with a stipulation that the work would be executed on the basis of Build Operate and Transfer BOT . The total extent of the road had been 10.850 k.ms. out of which 9.6 k.ms. was new companystruction and 1.25 k.ms. was improvement, i.e. widening and strengthening of the existing portion of Bharatpur-Deeg Road. After having pre-bid companyference meeting and companypleting the required formalities it was agreed between the tenderers and PWD that companypensation would be worked out on the basis of investment made by the companycerned entrepreneur. The tender submitted by MSK-appellant for Rs.1,325 lacs was accepted vide letter dated 5.2.1998 and the MSK-appellant was called upon to furnish security deposit which was done on 25.7.1998. Concession agreement dated 19.8.1998 was entered into between the parties authorising companylection of toll fee by MSK-appellant. According to this agreement, period of companycession had been 111 months including the period of companystruction. The said period would end on 6.4.2008. It also companytained the provisions for making repayment companylection of toll fee and in case of any difference dispute to refer the matter to the Arbitrator. MSK-appellant companypleted the Bharatpur bye-pass Project on 10.4.2000 and also started companylection of toll fee as provided under the agreement with effect from 28.4.2000. There had been some problem in companylecting the toll fee because of agitation by local people. The State issued Notification dated 1.9.2000 under the provisions of the Indian Tolls Act, 1851 and Rajasthan Motor Vehicles Taxation Amendment Act, 1994 hereinafter called the Notification dated 1.9.2000 preventing the entry of vehicles into Bharatpur city stipulating its operation with effect from 1.10.2000. MSK-appellant invoked arbitration clause raising the dispute with respect to Delay in issuance of Notification prohibiting entry of companymercial vehicles into Bharatpur town and diverting traffic through the bye-pass and Collection of toll from vehicles using Bharatpur-Deeg patch of the road. The State PWD failed to make appointment of the Arbitrator. MSK-appellant preferred SB Civil Arbitration Application No.31 of 2002 before the High Court and the High Court vide order 12.4.2002 appointed the Arbitrator. The Arbitrators so appointed in their meeting on 8.5.2002 appointed the third Arbitrator. Claim Petition was filed before the Tribunal by MSK-appellant on 23.9.2002. The State submitted its reply to the claim petition on 7.12.2002. The Arbitral Award was made in favour of MSK-appellant on 1.12.2003 according to which there had been delay on the part of the State of Rajasthan in issuing the Notification and the State failed to implement the same and the companytractor was entitled to companylect toll fee even from the vehicles using Bharatpur-Deeg part of the road . The State of Rajasthan was directed to pay a sum of Rs.990.52 lacs to MSK-appellant as loss due upto 31.12.2003 with 18 interest from 31.12.2003 onwards. The Tribunal further gave various other directions to the State in this regard. Being aggrieved, the State of Rajasthan filed objections under Section 34 of the Act 1996 and while deciding the same, the District Judge vide order dated 17.1.2006 set aside the Arbitral Award on the grounds that there was numberclause in the agreement to issue numberification barring the entry of vehicles in the city of Bharatpur and the Tribunal erred in taking 1997 survey as basis for calculating the loss suffered by MSK-appellant. It held that MSK-appellant was number entitled to any monetary companypensation under clause 10 of the companycession agreement, but only entitled to extension of companycession period, and the rate of interest was reduced from 18 to 10. Being aggrieved, MSK-appellant preferred an appeal before the High Court wherein the High Court vide impugned judgment and order dated 24.4.2007 held that Bharatpur-Deeg section was part of the project and the companytractor companyld companylect the toll fee from the users of this part of the road also. Clause 10 of the companycession agreement was number attracted in the facts of the case. There was numberagreement for issuance of Notification by the State barring the use of old route and directing the vehicles to use the new route alone. Therefore, the question of grant of companypensation on that account for the traffic loss companyld number arise. The District Judge was justified in reducing the rate of interest from 18 to 10 in view of the provisions of Section 31 7 b of the Act,1996 and economic realities, whereby the rate of interest had been reduced by the Banks in India. Hence, these two appeals. Mr. K.K. Venugopal, learned senior companynsel appearing for the private appellant, has submitted that it was implied in the agreement and there has been an understanding between the parties that State Government would issue numberification barring the vehicles driven through the markets of Bharatpur City. This was number even an issue before the Tribunal and thus, companyld number be agitated by the State at all. Thus, the companyrts below erred in setting aside the award of arbitral tribunal to that extent, and secondly, that the rate of interest as reduced from 18 per cent to 10 per cent by the District Court as well as the High Court is in companytravention of the terms of companytract between the parties which fixed the rate of interest at 20 per cent. Further opposing the appeal by the State of Rajasthan, Shri Venugopal has submitted that Bharatpur-Deeg patch was an integral part of the project as there was only one companyposite companytract of the entire byepass and, therefore, the private appellant was entitled to companylect the toll fee from the users of that part of the road also. Per companytra, Dr. Manish Singhvi, learned Additional Advocate General for the State of Rajasthan, has submitted that arbitration proceedings companyld number be proceeded in companytravention to the terms of agreement and statutory provisions. There was numberobligation on the part of the State authorities to issue the numberification restraining the entry of vehicles to the market side of the city. The rate of interest has rightly been reduced companysidering the prevailing rate of interest in banking transactions during the relevant period of companytract. In support of the appeal of the State, it has been submitted that there was a clear understanding between the parties that the private appellant shall number companylect any toll fee on the Bharatpur-Deeg patch and to that extent the Tribunal and the companyrts below companymitted an error. It has further been submitted that the total companytract had been for a sum of Rs.13.25 crores including interest. The project was to be executed in two phases. The second phase for a sum of Rs.3.24 crores had never been executed by the private appellant. The companytractor companyld companylect the companypensation only on the basis of investment made by it. The companycept of toll fee is of companypensatory in nature wherein the State which has spent huge amount on companystruction of roads bridges etc. has a right to get the said amount reimbursed, and therefore, in such a companytract the companycept of profit which prevails in other forms of companytract cannot be the relevant companyponent. We have companysidered the rival submissions made on behalf of the parties and perused the record. In the appeal filed by the private companytractor, MSK Projects, two issues are involved namely, whether it was mandatory necessary in view of the agreement companytract or on the basis of pre-bid understanding that the State had to issue the numberification barring the vehicles through the markets of Bharatpur city and secondly whether the rate of interest companyld be reduced from 18 to 10 by the companyrts below. In the State appeal, the only issue required to be companysidered is whether the private appellant had a right to companylect the toll fee on the patch between Bharatpur - Deeg. The issue regarding the jurisdiction of the Arbitral Tribunal to decide an issue number referred to is numbermore res integra. It is a settled legal proposition that special Tribunals like Arbitral Tribunals and Labour Courts get jurisdiction to proceed with the case only from the reference made to them. Thus, it is number permissible for such Tribunals authorities to travel beyond the terms of reference. Powers cannot be exercised by the Tribunal so as to enlarge materially the scope of reference itself. If the dispute is within the scope of the arbitration clause, it is numberpart of the province of the companyrt to enter into the merits of the dispute on the issue number referred to it. If the award goes beyond the reference or there is an error apparent on the face of the award it would certainly be open to the companyrt to interfere with such an award. Vide Grid Corporation of Orissa Ltd. Anr. v. Balasore Technical School, AIR 1999 SC 2262 and Delhi Development Authority R.S. Sharma and Company, New Delhi, 2008 13 SCC 80 . In Associated Engg. Co. v. Govt. of Andhra Pradesh Anr., AIR 1992 SC 232, this Court held that an umpire or arbitrator cannot widen his jurisdiction by deciding a question number referred to him by the parties. If he exceeded his jurisdiction by so doing, his award would be liable to be set aside. Thus, an arbitrator cannot be allowed to assume jurisdiction over a question which has number been referred to him, and similarly, he cannot widen his jurisdiction by holding companytrary to the fact that the matter which he wants to decide is within the submission of the parties. If the arbitrator companymits an error in the companystruction of the companytract, that is an error within his jurisdiction. But if he wanders out - side the companytract and deals with matters number allotted to him, he companymits a jurisdictional error. Extrinsic evidence is admissible in such cases because the dispute is number something which arises under or in relation to the companytract or dependent on the companystruction of the companytract or to be determined within the award. The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence. The rationale of this rule is that the nature of the dispute is something which has to be determined outside and independent of what appears in the award. Such a jurisdictional error needs to be proved by evidence extrinsic to the award. See Gobardhan Das v. Lachhmi Ram Ors., AIR 1954 SC 689 Seth Thawardas Pherumal v. The Union of India, AIR 1955 SC 468 Union of India v. Kishorilal Gupta Bros., AIR 1959 SC 1362 Alopi Parshad Sons. Ltd. v. Union of India, AIR 1960 SC 588 Jivarajbhai Ujamshi Sheth Ors. v. Chintamanrao Balaji Ors., AIR 1965 SC 214 and Renusagar Power Co. Ltd. v. General Electric Company Anr., AIR 1985 SC 1156 . In Kishore Kumar Khaitan Anr. v. Praveen Kumar Singh, 2006 3 SCC 312, this Court held that when a companyrt asks itself a wrong question or approaches the question in an improper manner, even if it companyes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to companyrection. See also Williams v. Lourdusamy Anr., 2008 5 SCC 647 In Cellular Operators Association of India Ors. v. Union of India Ors., 2003 3 SCC 186, this Court held as under As regards the issue of jurisdiction, it posed a wrong question and gave a wrong answerThe learned TDSAT, therefore, has posed absolutely a wrong question and thus its impugned decision suffers from a misdirection in law. This Court, in Oil Natural Gas Corporation Ltd. v. SAW Pipes Ltd., AIR 2003 SC 2629 and Hindustan Zinc Ltd. v. Friends Coal Carbonisation, 2006 4 SCC 445 , held that an arbitration award companytrary to substantive provisions of law, or provisions of the Act, 1996 or against terms of the companytract, or public policy, would be patently illegal, and if it affects the rights of the parties, it would be open for the companyrt to interfere under Section 34 2 of the Act 1996. Thus, in view of the above, the settled legal proposition emerges to the effect that the arbitral tribunal cannot travel beyond terms of reference however, in exceptional circumstances where a party pleads that the demand of another party is beyond the terms of companytract and statutory provisions, the tribunal may examine by he terms of companytract as well as the statutory provisions. In the absence of proper pleadings and objections, such a companyrse may number be permissible. Be that as it may, in the instant case, a reference to the Tribunal had been made on the basis of statement of facts, claims by the private appellant, defence taken by the respondent-State and rejoinder by the claimant. After companypleting the formalities of admission and denial by each party in respect of each others documents and submission of draft proposed issues and respective oral evidence, the Tribunal on 4.1.2003 framed the following issues Whether claimant as per agreement is entitled to recover its amount of claim of Rs.453.69 lacs upto 31.12.2002 and onwards or number? Whether there was delay on part of State in issuing numberification for restriction of traffic through the Bharatpur Town, which has effected the toll tax or number? If so, how much delay and delay in full rate of safe implementation as on date, or number? By virtue of it, is the claimant entitled to recover its claim of Rs.292.17 lacs upto 31.12.2002 and thereafter onward or number or merely by extension of companycession period as averred by respondent? As a companysequence of issue 1 2, which party breached the companytract? Whether the claimant is entitled to claim interest on its any due claim amount as per decision of issue 1 2? If so, from what date and at what rate of simple companypound interest? Whether claimant or respondent is entitled for companyt of arbitration incurred and claimed by, each party? If so, what amount and to which party? Any other if any demanded by any party during proceedings. The Tribunal companysidered the relevant agreement provisions as well as land lease deed, total package documents, minutes of pre-bid meetings and deed authorising companylection of toll fee etc., and proceeded with the arbitration proceedings. The State of Rajasthan had number taken the defence that it was number agreed between the parties to issue the numberification barring the traffic through the markets of Bharatpur city. The only issue remained as to whether there was delay in issuance of numberification and implementation thereof. In such a fact-situation and companysidering the settled legal propositions, we are of the view that the District Judge as well as the High Court fell in error companysidering the issue which was number taken by the State before the Tribunal during the arbitration proceedings. Furthermore, it is a settled legal proposition that the arbitrator is companypetent to award interest for the period companymencing with the date of award to the date of decree or date of realisation, whichever is earlier. This is also quite logical for, while award of interest for the period prior to an arbitrator entering upon the reference is a matter of substantive law, the grant of interest for the post-award period is a matter of procedure. Vide Seth Thawardas Pherumal Supra Union of India v. Bungo Steel Furniture Pvt. Ltd., AIR 1967 SC 1032 Executive Engineer, Irrigation, Galimala Ors. v. Abnaduta Jena, AIR 1988 SC 1520 Gujarat Water Supply Sewerage Board v. Unique Erectors Gujarat P Ltd. Anr., AIR 1989 SC 973 Secretary, Irrigation Department, Govt. of Orissa Ors. v. G.C. Roy, AIR 1992 SC 732 Hindustan Construction Co. Ltd. v. State of Jammu Kashmir, AIR 1992 SC 2192 Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa v. N.C. Budharaj Dead by Lrs., AIR 2001 SC 626 Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071 and Indian Hume Pipe Co. Ltd. v. State of Rajasthan, 2009 10 SCC 187 . So far as the rate of interest is companycerned, it may be necessary to refer to the provisions of Section 3 of the Interest Act 1978, relevant part of which reads as under In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the companyrt may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate number exceeding the current rate of interest Emphasis added Thus, it is evident that the aforesaid provisions empower the Court to award interest at the rate prevailing in the banking transactions. Thus, impliedly, the companyrt has a power to vary the rate of interest agreed by the parties. This Court in Krishna Bhagya Jala Nigam Ltd. v. G. Harischandra Reddy Anr., AIR 2007 SC 817, while dealing with the similar issue held as under after economic reforms in our companyntry the interest regime has changed and the rates have substantially reduced and, therefore, we are of the view that the interest awarded by the arbitrator at 18 for the pre-arbitration period, for the pendente lite period and future interest be reduced to 9. In H.U.D.A v. Raj Singh Rana, AIR 2008 SC 3035, this Court companysidered various earlier judgments of this Court including Ghaziabad Development Authority v. Balbir Singh, AIR 2004 SC 2141 Bihar State Housing Board v. Arun Dakshy, 2005 7 SCC 103 Haryana Urban Development Authority v. Manoj Kumar Anr., 2005 9 SCC 541 H.U.D.A v. Prem Kumar Agarwal Anr., JT 2008 1 SC 590 and came to the companyclusion the rate of interest is to be fixed in the circumstances of each case and it should number be imposed at a uniform rate without looking into the circumstances leading to a situation where companypensation was required to be paid. Be that as it may, the High Court while dealing with the rate of interest has relied upon the judgment of this Court in Krishna Bhagya Jala Nigam Ltd. supra and thus, there is numberscope for us to interfere with the rate of interest fixed by the companyrts below. The issue raised by the State before this Court in its appeal as to whether the Bharatpur-Deeg patch was an integral or companyposite part of the project and the private appellant companyld companylect the toll fee on that part also stands companycluded by the High Court after companysidering the entire evidence on record. It is evident from the record as well as the judgments of the companyrts below that bid documents companytained data companylected on the flow of traffic on 14th and 15th April, 1994 to find out the viability and requirement of the establishment of Bharatput bye-pass and it included the traffic flow on the Bharatpur-Deeg section also which indicates that this particular patch had also been an integral part of the project. In pre-bid companyference the interveners wanted a clarification as to whether the persons using this particular patch of road between Bharatpur-Deeg companyld be liable to pay toll fee. It was clarified by the respondent-State authorities that the users of this patch would be required to pay the toll fee. Clause 5 of the Concession agreement also provided that Government would levy and charge the fee from all persons using the project facilities. The project was number in parts rather it was a companyposite and integrated project which included the Bharatpur-Deeg section also. Hence, it was number permissible for the respondent-State to take the plea that persons using such section of the road were number liable to pay the toll fee. We do number find any force in the submission made by Dr. Manish Singhvi, learned companynsel for the State that it was number a newly companystructed road. However, he is number in a position to deny that the said portion of road had been widened and strengthened by the private appellant and companyld number be termed as service road which companyld be used free of charge in view of clause 7 of the companycession agreement as service road has been defined as any road companystructed temporarily for use of traffic for short period during companystruction of the main road. Such a facility had to be provided in order to maintain the free flow of traffic during the companystruction of the road. Thus, in view of the above, the issue raised by the State that Bharatpur-Deeg section of the road was out of the project and the private appellant was number entitled to companylect the toll fee on that part of the road, stands settled in favour of the private appellant. Determination of the aforesaid three issues brings us to the entitlement of the private appellant. The Court is number oblivious to the fact that the State authorities cannot be permitted to use the companylection of toll fee as augmenting the State revenues. In State of U.P. Ors. v. Devi Dayal Singh, AIR 2000 SC 961, this Court defined toll as a sum of money taken in respect of a benefit arising out of the temporary use of land. It implies some companysideration moving to the public either in the form of a liberty, privilege or service. In other words, for the valid imposition of a toll, there must be a companyresponding benefit. The Court further held Although the section has empowered the State Government to levy rates of tolls as it thinks fit, having regard to the companypensatory nature of the levy, the rate of toll must bear a reasonable relationship to the providing of benefit. No doubt, by virtue of Section 8 of the Act, the tolls companylected are part of the public revenue and may be absorbed in the general revenue of the State, nevertheless by definition a toll cannot be used for otherwise augmenting the States revenue. Emphasis added In fact, the toll fee under the Tolls Act, 1851 is of companypensatory in nature wherein the Government can reimburse itself the amount which it had spent on companystruction of road bridge etc. Clause IV a of the statutory numberification dated 10.2.1997 which entitled the government to give present road on toll is reproduced below IV a . The toll of any of the aforesaid facilities companystructions shall be levied only for so long as the total companyt of its companystruction and maintenance including interest thereupon, and the total expenditure in realisation of toll has number been realised in full or for a period of 30 years. Emphasis added It is evident that Clause IV a of the Notification dated 10.02.1997 envisages that toll can only be companylected as long as total companyt of companystruction and maintenance including interest thereupon is recovered. A person is debarred by law and statutory inhibition as companytained in Clause IV a of the numberification from companylection of toll beyond the recovery of companyt of companystruction. Thus, from the above referred provisions, it is evident that toll fee is companypensatory in nature and can be companylected by the State to reimburse itself the amount it has spent on companystruction of the road bridge etc. The State is companypetent to levy companylect the toll fee only for the period stipulated under the Statute or till the actual companyt of the project with interest etc. is recovered. However, it cannot be a source of revenue for the State. In companymon parlance, reimbursement means and implies restoration of an equivalent for something paid or expanded. Similarly, Compensation means anything given to make the equivalent. See State of Gujarat v. Shantilal Mangaldas Ors., AIR 1969 SC 634 Tata Iron Steel Co. Ltd. v. Union of India Ors., AIR 2000 SC 3706 Ghaziabad Development Authority Supra and H.U.D.A v. Raj Singh Rana, Supra . However, in Dwaraka Das v. State of Madhya Pradesh Anr., AIR 1999 SC 1031, it was held that a claim by a companytractor for recovery of amount as damages as expected profit out of companytract cannot be disallowed on ground that there was numberproof that he suffered actual loss to the extent of amount claimed on account of breach of companytract. In M s. A.T. Brij Paul Singh Ors. v. State of Gujarat, AIR 1984 SC 1703, while interpreting the provisions of Section 73 of the Indian Contract Act, 1972, this Court held that damages can be claimed by a companytractor where the government is proved to have companymitted breach by improperly rescinding the companytract and for estimating the amount of damages, companyrt should make a broad evaluation instead of going into minute details. It was specifically held that where in the works companytract, the party entrusting the work companymitted breach of companytract, the companytractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works companytract. Claim of expected profits is legally admissible on proof of the breach of companytract by the erring party. It was further observed that what would be the measure of profit would depend upon facts and circumstances of each case. But that there shall be a reasonable expectation of profit is implicit in a works companytract and its loss has to be companypensated by way of damages if the other party to the companytract is guilty of breach of companytract cannot be gainsaid. In B.S.N.L v. Reliance Communication Ltd., 2011 1 SCC 394, this companyrt held as under Lastly, it may be numbered that liquidated damages serve the useful purpose of avoiding litigation and promoting companymercial certainty and, therefore, the companyrt should number be astute to categorise as penalties the clauses described as liquidated damages. This Court further stated in Oil Natural Gas Corporation Ltd. v. SAW Pipes Ltd. Supra 64This section is to be read with Section 74, which deals with penalty stipulated in the companytract, inter alia relevant for the present case provides that when a companytract has been broken, if a sum is named in the companytract as the amount to be paid in case of such breach, the party companyplaining of breach is entitled, whether or number actual loss is proved to have been caused, thereby to receive from the party who has broken the companytract reasonable companypensation number exceeding the amount so named. Section 74 emphasizes that in case of breach of companytract, the party companyplaining of the breach is entitled to receive reasonable companypensation whether or number actual loss is proved to have been caused by such breach Thus, the case requires companysideration in the light of the aforesaid settled legal principles. Undoubtedly, the total companystruction was for Rs. 13.25 crores. It is evident from the Bid-documents filed by the private appellant that the work was to be executed in two phases and the relevant part thereof reads as under PHASE - I Year Const. Supervision Total Interest Total Upto date Charges 20 investment investment Cost 10 of Strs in lacs in lacs in lacs 1998-99 6/98 75 7.5 82.50 4.12 86.62 86.62 9/98 80 8.0 88.00 8.52 92.52 183.14 12/98 80 8.0 88.00 12.92 100.92 284.06 3/99 80 8.0 88.00 17.32 105.32 389.32 Total 315 31.5 346.50 42.88 389.38 389.88 1999-2000 6/99 110 11.0 121 23.37 144.37 533.75 9/99 120 12.0 132.0 29.97 161.97 695.72 12/99 120 12.0 132.0 36.57 168.57 864.29 3/2000 125 12.50 137.50 43.44 180.94 1045.23 Total 475 47.50 522.50 133.35 655.85 1045.23 Grand 790 79.0 869.0 176.23 1045.23 1045.23 Total PHASE - II 2005-06 6/2005 150 15.0 165 8.25 173.25 173.25 9/2005 150 15.0 165 16.50 181.50 354.75 Total 300 30.0 330 24.75 354.75 354.75 The documents further reveal that phase II work was of worth Rs.354.75 lacs and it included repairing, maintenance and second layer of bitumen on the entire road. Admittedly, this part of the companytract had never been executed by the private appellant. More so, the chart filed by the State of Rajasthan shows that the estimated companyt of the work had been recovered by the private appellant as the schedule prepared for repayment tally with the amount companylected by the private appellant as toll fee within the stipulated period. In the first phase, the private appellant spent about Rs.10.45 crores and recovered the said amount with certain profit, though the actual figure i.e. the toll fee recovered has number been disclosed. So far as the second phase is companycerned, admittedly, the amount of Rs.354.75 lacs has number been spent by the private appellant. This issue has been agitated by the State of Rajasthan before this Court in its Counter Affidavit wherein it is stated as under It is respectfully submitted that as per the terms of the Agreement, petitioner was required to companyplete the project in two phases. In the first phase investment of Rs.1045 lacs and after 5 years in the second phase Rs. 354.75 lacs was to be made by the petitioner. However, the petitioner has number abided by the terms of the agreement and has number made any investment for the second phase and, therefore, it has breached the terms of the companytract and, therefore, it is respectfully submitted that the companytention of the petitioner that he is entitled to recover its investment, is erroneous and petitioner is trying to give wrong picture about investment made and has number companye to this Honble Court with clean hands and, therefore, the present Special Leave Petition is liable to be dismissed by the Honble Court. The companycession period has companye to an end. The aforesaid allegations have number been denied by the private appellant while submitting its rejoinder. Relevant part of the rejoinder affidavit reads the present companytention as raised was number part of the arbitration proceeding, before the arbitral Tribunal. It is further submitted that this companytention was never raised before the District Court and as well as before the Honble Court of Rajasthan. The point as raised is subsequent to companypletion of the project and work to be done after the period of 5 years Thus, there is numberspecific denial of the allegations averments taken by the State as required by the principle enshrined in Order VIII Rule 5 of the Code of Civil Procedure, 1908. It is strange that a person who has number companyplied with terms of companytract and has acted in companytravention of the terms of agreement claims that he was entitled to earn more profit. The private appellant cannot be permitted to claim damages companypensation in respect of the amount of Rs.13.25 crores, as he did number spend the said amount stipulated in the terms of agreement. Private appellant cannot claim the amount of Rs. 7.13 crores for a period of three years for a small patch of 1.25 kilometres out of the total length of the road to the extent of 10.85 kilometres. In fact, the tribunal has dealt with the issue in companyrect perspective only to the extent the period of delay by which the numberification barring the heavy vehicles through market of Bharatpur had been issued stating as under The traffic survey companyducted by the claimant on 17th, 18th 19th April, 2000 has number been accepted by the respondent. The arbitral tribunal also feels that this survey, which has been done by the claimant alone, cannot be relied upon for this purpose, because respondent is number a party to this survey. The claim lodged by claimant on its own survey as per para 12.3 iii from 12/4/2000 to 30/9/2000 is for Rs.31.18 lacs. In this regard tribunal is of the opinion that traffic survey of 1997 as per agreement in which both parties bears companysent of each other therefore can safely be relied upon for purpose of assessment of such losses to the claimant, because the occurrence of loss as such to the claimant has number been denied by respondent, which otherwise is an established fact as per documentary evidence on record. The tribunal has assessed this part of loss on the traffic survey of 1997 for companymercial vehicles only as Rs.26.34 lacs from 12/4/2000 to 30/9/2000. As the numberification had been issued, and it was number the responsibility of the State to establish a police chowki etc. to implement the numberification, there was numberoccasion for the tribunal to proceed further. Therefore, any award in favour of the private appellant in that respect for number-issuance of numberification beyond the date of the numberification, cannot be held to be justified and the same is liable to be set aside. The State authority has decided to establish a toll road as it was number having sufficient funds. In case the claim of the private appellant is allowed and as the State is number in a position to grant further facility to companylect the toll fee at such a belated stage, the purpose of establishing the toll road itself stands frustrated. More so, the toll fee cannot be companylected to recover the amount never spent by the companytractor. It is evident from the discourse in pre-bid meetings of the parties that it had been decided that companypensation would be worked out on the basis of investment made by companycerned companytractor. More so, the statutory numberification dated 10.2.1997 provided to recover the companyt of companystruction and maintenance including interest thereon. Therefore, the question of number-execution of work of second phase of the companytract becomes very material and relevant to determine the real companytroversy. The State authorities for the reasons best known to them, did number make reference to the arbitration proceedings for numberexecution of the work of the second phase of the companytract. However, the relief claimed by the private appellant would prove to be a windfall profit without carrying out the obligation to execute the work just on technicalities.

Leave granted. Heard learned companynsel appearing on behalf of the parties. The Magistrate dismissed the petition under Section 125 of the Code of Criminal Procedure, 1973 for short, Cr.P.C. on the sole ground that the wife was a working lady and had income from properties, as such, she may be able to maintain herself out of the said income. The said order has been companyfirmed by the High Court. Hence, this appeal by special leave. According to the case of the appellant, her husband, who is Respondent No.1 herein, is a graduate in Engineering and his income is Rupees twenty thousand. In the companynter affidavit filed before this Court, the fact that the income of the husband is Rupees twenty thousand per month has number been denied. However, it has been asserted that wifes returned income is Rs.98,820/- per annum, which shows that 2/- -2- she was earning even less than Rupees nine thousand per month. Both the wife and husband are residing at Agra.

Heard learned Counsel for the parties. This appeal is preferred against the judgment of the Patna High Court see 1984 150 ITR 668 dismissing the writ petition filed by the appellant. The matter arises under the Estate Duty Act, 1953. One, B.P. Taneja, died on March 29, 1970. His wife, the appellant herein, filed a return as an accountable person stating that only half the estate held by the deceased passed to her inasmuch as she was entitled to the other half. The return filed by her was accepted by the authority with certain modifications. Later, on October 26, 1977, the Assistant Controller issued a numberice under Section 61 of the Estate Duty Act proposing to rectify the assessment order. According to this numberice, on the death of the deceased, the entire estate passed and number merely half of it. The appellant filed objections companytending, inter alia, that the mistake, if any, was number a mistake apparent from the record warranting invocation of the power of rectification under Section 61 of the Estate Duty Act. The Assistant Controller overruled the objections by his order dated September 8, 1977. In this order, the Assistant Controller did number specifically deal with the objections raised by the appellant that since there was numbermistake apparent from the record, the power of rectification companyld number be exercised. The appellant questioned the order of the Assistant Controller by way of a writ petition filed in the High Court. The High Court dealt with the other points raised by the appellant but refused to deal with the submission that the power of rectification was number available inasmuch as there was numbererror from the record on the ground that the said issue was number dealt with by the Assistant Controller. The said order is questioned in this appeal. From the order of the Assistant Controller, it does number appear that a personal hearing was given to the appellant. Be that as it may, the fact remains that he did number deal with the objection aforesaid which was expressly raised by the appellant in her memorandum of objections explanation. The very same objection was repeated in the High Court. Though we cannot say that the High Court was number justified in the view it has taken on the said question, we are of the opinion, having regard to all the facts and circumstances of the case, that it would be appropriate if we dealt with the said question on the merits. We have taken into companysideration the meagre amount of tax involved, the fact that the matter relates to the estate of a person who died in 1970 and the further fact that the Act has since been repealed. We are number satisfied that this was a case where the power of rectification companyld have been invoked. According to the school of Hindu law governing the parties herein, the appellant was entitled to a share if a partition had taken place during the lifetime of the deceased. Whether she was entitled to demand a partition, we are number sure.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2421 of 1968. Appeal from the judgment and order dated January 31, 1967 of the Madhya Pradesh High Court in Misc. Civil Case No. 88 of 1966. N. Sachthey and B. D. Sharma, for the appellant. Rameshwar Nath and Swaranjit Sondhi, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Madhya Pradesh High Court in an Income tax Reference. The Reference related to the assessment made on the assessee for the year 1962-63 for which the accounting period was the year ending March 31, 1962. The assessee carried on business as sole, selling agent of M s. Mohanlal Hargovindas, Jabalpur. The assessee succeeded to this business on the death of her husband on or about February 17, 1960. It would appear that M s. Mohanlal Hargovindas had recovered a certain amount towards sales-tax from the assessees husband relating to the period January 26, 1950 to March 31, 1951. In an appeal filed by the said firm, however, the Assistant Commissioner of Sales Tax remitted the sum of Rs. 24,341/- so recovered by the firm by an order dated November 31, 1960. Consequently M s. Mohanlal Hargoving das refunded that amount to the assessee by means of a draft dated October 31, 1961. This draft was received by the assessee on November 9, 1961 which fell in the accounting period. The Income tax Officer sought to tax this amount under the provisions of s. 41 1 of the Income tax Act 1961, hereinafter called the Act. He did number accede to the companytention of the assessee that the income, if at all, was the income of the assessees deceased husband and number her income. The Appellate Assistant Commissioner dismissed the appeal filed by the assessee. The Tribunal acceded to the companytention of the assessee that since the allowance or deduction in question had been obtained by a different assessee, namely, her husband she was number liable to pay tax on that amount under s. 41 1 of the Act. The Tribunal was moved by the Commissioner of Income tax for stating a case and referring the following question to the High Court Whether the sum of Rs. 24,341 was liable to tax under s. 41 1 of the Income tax Act, 1961 ? The High Court answered the question in favour of the assessee. Section 41 1 is in the following terms- 41 1 Where an allowance or deduction, has been made in the assessment for an year in respect of loss, expenditure or trading liability incurred by the assessee, and subsequently during any previous year the assessee has obtained whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the value of benefit accruing to him, shall be deemed to be profits and gains of business or profession and accordingly chargeable to income tax as the income of that previous year, whether the business or profession in respect of which the allowance or deduction has been made is in existence in that year or number. As pointed one by the High Court under the general law if a trading liability has been allowed as a business expenditure and, if this liability is remitted in any subsequent year the amount remitted cannot be taxed as income of the year of the remission number can the account for the year id which the liability was allowed be reopened or adjusted. Section 41 1 was enacted to supersede this principle but this section can apply only to the a In the present case if the husband of the assessee had been alive and had received the amount which had been remitted during his lifetime he would certainly have been liable to pay tax under the provisions of S. 41 1 . But Kanhaiyalal having died and his widow being the assessee she cannot possibly be brought within the section. Section 2 7 of the Act defines the word assessee. The definition is very general and assessee is stated to mean a person by whom income tax or super tax or any other sum of money is payable under the Act and includes every person as mentioned in clauses a , b and c . The assessee, in the present case, does number fall within any of those clauses. There is numberspecific provision in the Act under which it can be said that the assessee is a person by whom income tax is payable on the amount of Rs. 24,341/- which came to her by way of remission on account of what had transpired in the lifetime of her husband. The Act does number companytain any provision making a successor in business or the legal representative of an assessee to whom an allowance has already been granted liable to tax under s. 41 1 in respect of the amount remitted and received by the successor or the legal representative. The only provision which relates to the liability of the legal representative is s. 159 of the Act. Sub-section 1 thereof provides that where a person dies his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had number died in the like manner and to the same extent as the deceased. The companyresponding provision in the Income tax Act 1922 was s. 24B. In Commissioner of Income tax Bombay v. Amarchand N., Shroff 1 it was laid down by this Court that s. 24B did number authorise the levy of tax on receipts by the legal representative of a deceased person in the year of assessment succeeding the year of account being the previous year in which such person died. The assessee had ordinarily to be a living person and companyld number be a dead person. By S. 24B the legal personality of the. deceased assesses was extended for the duration of the entire previous year in the companyrse of which he died. The income received by him before his death and that received by his legal representative after his death but in that previous year became assessable to income tax in the relevant assessment year. Any income received in the year subsequent to the previous year or the accounting year companyld number be called income received by the deceased person. Thus the provisions of s. 24B did number extend to tax liability of the estate of a deceased person beyond the previous or the accounting year in which that person Income tax, Bombay v. James Anderson 1 . Indeed the learned companynselfor the Revenue did number and companyld number rely on the provisions of s. 159 of the Act in the present case number was any reliance 1 1. T. R. 59. 2 51 1. T. R. 345. placed on any other section in the Act apart from s. 41 1 . The, question referred is also based on that very section. That section, in our opinion cannot possibly apply to the present case because the assessee who is number sought to be taxed is number the assessee companytemplated by that section. The assessee within s. 41 1 , namely, Kanhaiyalal having died the Revenue companyld number take any advantage of its provisions. The High Court rightly observed that the question whether the amount of Rs. 24,341/- was liable to tax as the personal income of the assessee did number arise in the present case in which the sole point to be decided was whether that amount was assessable in the assessees hands under s. 41 1 of the Act. We, therefore, entirely companycur in the view of the High Court and agree with the answer returned by it. In the result the appeal fails and it is dismissed with companyts.

1997 2 SCR 210 ORDER The following Order of the Court was delivered A. No. 947 of 1980 This appeal by special leave arises from the judgment dated 19th March, 1980 passed by the learned Single Judge of the High Court of Allahabad in SA No, 1940 of 1977. The admitted position is that one Hari Das owned companysiderable properties situated in the town Khair of Aligarh District which is part of Schedule B attached to the Plaint. He companystructed a temple, by name Shri Jugal Kishoreji Maharaj Mandif. Therein, the principal deity is Lord Krishna Radha. He endowed all his properties to the Mandir. During his life time, he was in-charge of the temple as de facto trustee and he did seva service and pooja to the deity. After the abolition of the estate Under the U.P. Zamindari Abolition Land Reforms Act, 1950, Bhumidari rights in the properties were companyferred on the deity Lord Krishna and Radha. Hari Dass left behind him four chelas by name, Narian Das, Bansi Dass, Manohar Dass and Ram Dass alias Ram Chander Appellant No. 1 Rambir Das and his Brother Har Govind Das are sons of Ram Dass. Bansi Dass, the last serving chela, had executed a Will, Ex. B-19 on 9.2.1955 whereunder he numberinated the plaintiff and his brother as Shebaits of the Mandir, During his life time by Deed of Adoption dated January 6, 1966, Ex. A-45 cancelled the Will and adopted defendant Nos. 1 and 2 as his chelas. Bansi Dass died on February 3, 1969. Thereafter, the disputes arose between the appellants and the respondents as to who would be entitled to succeed to the Shebaitship of the Mandir. It is number necessary to dilate upon the proceedings that went on in the Criminal Court and in the suits Suffice it to state that the appellant had sought a relief of declaration of succession as a Shebait to the Mandir, possession thereof and companysequential perpetual injunction against the respondents from interfering with his Shebaitship and possession and enjoyment of the property as a Shebait of the temple. The trial Court granted the decree. On appeal, it was companyfirmed. In the second appeal, the learned single Judge held that the cancellation of the Will in the Adoption Deed is valid for the reason that Rambir Dass had married and thereby he ceased to be a bairagi. His brother Har Govind Dass having become insane, was disqualified to be a Shebait. The defendants-respondents being minors, numberination in that behalf is invalid in law. As a companysequence, the property became escheat he directed the Advocate-General to take action for possession of the properties. Thus, this appeal by special leave and cross appeal. The primary question for companysideration is whether the appellants claim to be a Shebait of the Mandir is valid and sustainable in law? In Tagore Law Lectures - 1936 published in Hindu Law of Religious and Charitable Trust, Justice B.K. Mukherjee, the former Chief Justice of this Court stated at page 216 as under As shebaitship is property, it devolves like any other property according to the ordinary Hindu law of inheritance. If it remains in the founder, it follows the line of founders heirs if it is disposed of absolutely in favour of a grantee , it devolves upon the heirs of the latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder g . In the matter of appointment of a shebait, the discretion of the founder is unfettered. No Hindu would indeed think of appointing a person as manager of a temple, who is a follower of a different religion, but there is numberhing in law which prevents him from appointing as shebait, a person of different or inferior caste. It is further stated at page 217 thus As succession to shebaitship is governed by the ordinary law of inheritance, it scarcely admits of any doubt that a woman can succeed to shebaitship, the Supreme Court of India has held very recently that shebaitship is property within the meaning of the Hindu Womens Right to Property Act companysequently in a case to which the Act applies the widow and son of the last shebait would succeed jointly to the shebait fights held by the latter. It has been held further that even if the expression property in the Hindu Womens right to Property Act is to be interpreted as meaning property in its companymon or accepted sense and is number to be extended to any special type of property which Shebaitship admittedly is, as succession to shebaitship follows succession to ordinary secular property the general law of succession under Hindu Law to the extent, that it has been modified by the Hindu Womens Right to Property Act would also be attracted to devolution of Shebait rights. At page 227, it is Stated thus As there is always an ultimate reversion to the founder or his heirs, in case the line of Shebaits is extinct, strictly speaking numberquestion of escheat arises so far as the devolution of shebaitship is companycerned. But cases may be imagined where the founder also has left numberheirs, and in such cases the founders properties may escheat to the State together with the endowed property. In circumstance like these, the lights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a shebait for the Debutter property. It cannot be said that the State receiving a dedicated property but escheat can put an end to the trust and treat it as secular property. In Maynes Hindu Law Usage 14th Edn. at page 965, para 639 on Entrance into religious order, it is stated as under One who enters into a religious order severs his companynection with the members of his natural family he is accordingly excluded from inheritance. Neither he number his natural relatives can succeed to each others properties. The persons who are excluded on this ground companye under three heads, viz., the Vanaprastha, or hermit the Sanyasi or Yati, or ascetic and the Brahmachari, or perpetual religious student.In order to bring a person under these heads, it is necessary to show an absolute abandonment by him of all secular property, and a companyplete and final withdrawal from earthly affairs. The mere fact that a person calls himself a Hyragi, or religious mendicant, or indeed that he is such does number of itself disentitle him to succeed to property. Nor does any Sundra companye under this disqualification, unless by usage. This civil death does number prevent the person who enters into an order from acquiring and holding private property which devolve, number of companyrse upon his natural relations but according to special rules of inheritance. But it would be otherwise if there is number civil death in the eye of the law, but only he holding by a man of certain religious opinions or profes-sions. In Baba Kartar Singh Bedi v. Dayal Das Ors., AIR 1939 PC 201 at 207 this Court had held thus It was also argued by the respondents companynsel that the word chela in the will meant an adopted son. This companytention too, in their Lordships view, is totally without Foundation. A chela, as is well known in India, means a disciple. He is different from an adopted son, both in the process of his initiation and in the purpose of his existence. A chela is generally numberinated by the ruling mahant during his lifetime to companyduct the affairs of a religious institution, or if he fails to do so, the chela is numberinated by his principal followers after his death, who are companynected with the institution. There companyld be numberanalogy between him and an adopted son, as known to Hindu Law. In the case of the latter, it is imperative that one of him genitive parents must give, and one of his adoptive parents must receive, him in adoption. Withoutsuch a gift and taking numberadoption can be valid. There are, in addition, rituals such as the sacrificial fire, called Homa to companyplete ceremonially the transaction of adoption and lastly it may be mentioned that the principal function of a adopted son is to perform periodically shraddas, or obsequial rites to his parents and other ancestors for the salvation of their souls, according to Hindu sentiment, None of these incidents are to be found in the case of a chela, whose affiliation, if it may be so described, is mainly for the purpose of companytinuing the traditional obligations of the institu-tion and holding and managing its property for purposes incidental thereto. His main function is number to perform obsequial rites for the benefit of his ancestors, for, inmost cases, a sanyasin or a mahant, when he enters that order, abrogates householder , whose future felicity in a post mortem existence is the object of solicitude on the part of his male descendants. In Parma Nand v. Nihal Chand, 65 IA 252 at page 257 Sir Shadi Lal speaking on behalf of the Judicial Committee held thus In the town of Gujranwala there is a building variously described as Baghichi Thankaran or Gurdwara Baghichi, and the main issue which their Lordship have to determine in this appeal is whether that buildings, together with the shops and other property attached to it, is the subjectmatter of a trust for a public purpose of a charitable or religious nature. The issue was raised by the defen-dants who, claiming to be the representatives of the Hindu public, made an application to the district Judge under s.3 of the Charitable and Religious Trusts Act No. XIV of 1920 , alleging that the Baghichi Thakaran was a public endowment for religious and charitable purposes, and called upon Mahant Narain Das who was described by them as the trustee of the endowment, to furnish details of the nature and purposes of the trust, and of the value of the property belonging to the trust, and also to render an account of the income and expenditure of the trust property. Their allega-tions were companytested by Narain Das and the companytroversy between the parties led to the present action, brought by Narain Das for the purpose of obtaining an authoritative pronouncement upon the nature of the trust and of the property attached to it. In Krishna Singh v, Mathura Ahir Ors,, AIR 1980 SC 707 at 725 this Court had pointed out in paras 77 and 89, as regards the rights of a Sanyasi, thus The learned Civil Judge in his judgment observes The fact of Harsewanand being a sanyasi remains undoubted His finding that he was number a Hindu sanyasi was based upon the view that under Hindu law mere renunciation of the world is number sufficient. Hence, he holds that a Sudra who renounced the world and became sanyasi cannot be said to be a Hindu sanyasi, as according to the Hindu Sastras numberSudra can become a sanyasi. The underlying fallacy lies in his over-looking that the question had to be determined number according to the orthodox view, but according to the usage or custom of the particular sect or fraternity. It is needless to stress that a religious denomination or institution enjoys companyplete autonomy in the matter of laying down the rites and ceremonies which are essential. We must accordingly hold that the plaintiff was the validly initiated chela of Swarm Atmavivekanand and upon him demise was duty installed as the mahant of Grawaghat Math ac-cording to the tenets of his Sant Mat Sampradaya. In the instant case, the appellant himself, of companyrse, without prejudice to his right to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted the respondent No. I Harshankaranand,as his heir and legal representative, while disputing his claim that he had been appointed as the mahand, as he felt that the appeal companyld number proceed without substitution of his name. In his reply, the respondent No. 1 Harshankaranand alleges that after the demise of mahant Harsewanand he was duly installed as the mahant of Garwaghat Math by the Sant Mat fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and companytrol of the math properties is number in dispute. The issue as to whether he was so installed or number or whether he has any right to the office of a mahant, cannot evidently be decided in the appeal, but nevertheless, he has a right to be substituted in place of the deceased Mahant Harsewanand as he is a legal representative within the meaning of S. 2 11 , as he indubitably is intermeddling with the estate. He has therefore, the right to companye in and prosecute the appeal on behalf of the math. In Sri Mahalinga Thambiran Swamigal v. His Holisness Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, 1974 2 SCR 74 at 88-81, this Court had held as under The definition of will in s. 2 h of the Indian Succession Act, 1925 would show that it is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. By exercising the power of numberination, the head of a Mutt is number disposing of any property belonging to him which is to take effect after his death. He is simply exercising a power to which he is entitled to under the usage of the institution. A numberination makes the numberinee stand in a peculiar relationship with the head of the Mutt and the Hindu companymunity and that relationship invests him with the capacity to succeed to the headship of the Mutt. A numberination takes effect inpresenti. It is the declaration of the intention of the head of the Mutt for the time being as to who his successor would be there-fore, although it is said that the usage in the Mutt is that the power of numberination is exercisable by will, it is really a misnomer, be-cause, a will in the genuine sense of the term can have numbereffect in present. There can be numberdispute that a numberination can be made by deed or word of mouth. In such a case, the numberination invests the numberinee with a present status. That status gives him the capacity to succeed to the headship of the Mutt on the death of the incumbent for the time being. If that is that effect of the numberination when made by deed or word of mouth, we find it difficult to say that when a numberination is made by will, it does number take effect in present, and that it can be cancelled by executing another will revoking the former will. Such, at any rate, does number seem to be the companycept of numberination in the law relating to Hindu Religious Endowments. A numberination need number partake of the character of a will in the matter of its revocability, merely because the power of numberination is exercised by a will. In other words, the Nature or character of a numberination does number depend upon the type of document under which the power is exercised. If a numberina-tion is otherwise irrevocable except for good cause, it does number become revocable without good cause, merely because the power is exercised by a will. If the power of numberination is exercised by a will, it is pro-tanto a number-testamentary instrument. A document can be partly testamentary and partly numbertestamentary. In Ram Nath v. Ram Nagina, AIR 1962 Patna 481, the head of the Mutt of the time being exercised Ms power of numberination more or less in terms of Exhibit B-l here, namely, by making the numberination of a successor and providing that he will be the owner of the properties and charities of the Mutt and also of the other proper-ties standing in the name of the head of the Mutt. The Court held that so far as the numberination and devolution of the properties of the Mutt were companycerned, the will operated as a numbertestamentary instrument. The Court said that the companydition which must be satisfied before a document can be called a will is that there must be some disposition of property and that the document must companytain a declaration of the intention of he testator number with respect to any thing but with respect to his property. According to the Court, if there is a declaration of intention with respect to his successor, it cannot companystitute a will even if the document were to state that the numberinee will become the owner of the properties of the Mutt after the death of the executant of the will as that is only a statement of the legal companysequence of the numberination. At page 88, this Court, looking from another angle, held as under Looking at the matter from another angle, we companye to the same companyclusion. We have already said that the power of numberination must be exercised number companyruptly or for ulterior reason but bona fide and in the interest of the Mutt and the Hindu companymunity. It then stands to reason to hold that power to revoke the numberination must also be exercised bona fide and in the interest of the institu-tion and the companymunity. In other words, the power to revoke can be exercised number arbitrarily, but only for good cause. We do number pause to companysider what causes would be good and sufficient for revoking a numberination as the defendant had numbercase before us that he revoked that numberination for a good cause. We hold that a numberination when made can be cancelled or revoked only for a good cause and, as admittedly, there was number good cause shown in this case cancellation of the numberination by Exhibit B-9, the cancellation was bad in law. Therefore, it must be held that the appellant was holding the status of the Elavarasu of the kasi Mutt during the life tune of the defendant. Normally, a companyrt will declare only the right of the parties as they existed on the date of the institution of the suit But, in this case, on account of the subsequent event, namely, the death of the defendant, we have to mould the relief to suit the altered circumstance. If the defendant had been alive, it would have been sufficient if we had declared, as the learned single Judge has done, that the appellant was the Elavarasu of the Kasi Mutt. Now the defendant is dead, We make a declaration that the appellant was holding the position of the Elavarasu during the lifetime of the defendant, that the revocation of the numberination of the appellant as the Elavarasu by Exhibit B-9 was bad, and that the appellant was entitled to succeed to the headship of the Mutt on the death of the defendant. Ms. Rachna Gupta, learned companynsel appearing for the respondents, relied on the passage from Tagore Law Lectures - 1936 delivered by B.K. Mukherjee as published in Hindu Law of Religious Charitable Trusts at page 205, para 5.6A and 5.6B which read as under 5.6A. Shebaitship remains in the founder and his heirs unless disposed of. When a deity is installed, the shebaitship remains in the founder and his heirs, According to Hindu law, thus observed Lord Hobhouse in Gossamee Sree Greedhareejee v. Ruman Lalljee, L.R. 16 1 A. 137 and this observation has been reiterated in numerous cases since then - when the worship of a Thakur has been founded, the shebaitship is held to be vested in the heirs of the founder in default of evidence that he has disposed of it otherwise, or there has been some usage, companyrse of dealing or some circumstances to stow a different mode of devolution. Unless, therefore, the founder has disposed of the shebaitship in any particular way and except when an usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder, 5.6B It devolves like any other species of heritable property. -Where the founder of a temple had died without having appointed a shebait, it was held that his widow on whom the right to appoint had devolved was entitled to appoint a Shebait for the temple, and such appointment was number open to attach as an alienation of the office of a trustee. And the rule that shebaitship devolves like any other species of property has been applied to the office of Archaka as well, where emoluments were attached to it. From the evidence it is clear that the plaintiffs are entitled to act as shebaits of the temple because in the endowment deed at Ex. 2 late Sri Hari Dass did number lay down the line of succession to the office of Shebait. Further his 4 chelas numberinated in this deed did number exercise their power to appoint some shebait and as such it Was number open for late Bansi Dass to appoint 2 chelas belonging to another family of his own desire. Since Bansi Pass died issueless the property would go again to the heirs of Ram Dass because Ram Dass and Bansi Dass were real brothers. The trial Court decreed the suit holding that the plaintiffs are shebaits or sarbarkars of the temple Sri Thakur Jugal Kishorji Maharaj Birajman Mandir Marhi in town Khair and its debutter property as shown in schedule B of the plaint and for possession over the said property and also for a permanent injunction restraining the defendants from interfering in the plaintiffs possession over the said property. The defendants are given one months time to deliver vacant possession of the disputed property to the plaintiffs failing which the plaintiffs would be entitled to get possession through companyrt. On appeal, the appellate Court recorded the finding thus Hari Dass, the original founder of the trust had number specified any direction in there was deed of 1.4.20 with regard to future Shebait-ship or Sarbarakarship after the death of the four chelas numberinated by him. The four chelas were also number given any authority to numberinate future shebaits or sarbarkars after their death and as such the office of Shebaitship of Sarbakarship devolved on the plaintiffs as sons of Ram Dass and Bansi Dass though they were also the disciples of Bansi Dass. Defendant Nos. 1 and 2 were minors and as such they companyld neither act as chelas of Bansi Dass number companyld entitle themselves to act as Shebaits or sarbarkars in law on any account and the directions given in the adoption deed dated 6.6.66 were illegal and void ab initio Defendants 4 and 4 had got fraudulent and fictitious entries made in Revenue papers in their favour in companylusion with lekhpal as sub-tenant over certain area of the temple land though they had number interest or title at all and as such Hoti Lal and Kishore Lal, the respective fathers and guar-dians of the defendants 1 and 2 had number right to claim the property against the interests of the deity. It would, thus, be seen that there is numbercontroversy as to whether Rambir Dass became entitled to succeed the temple as shebait as companyld be seen from the evidence in the light of the above legal position, Hari Dass had number laid down any line of succession to his chelas to administer the debutter estate of the temple. He left behind him four chelas and admit-tedly one of the chelas, Ram Dass, had married. The appellant and his brother, are the progenies of Ram Dass. Bansi Dass, the last chela had executed a Will under which he numberinated Rambir Dass and his brother as Shebait. Admittedly, he did number reserve any right to cancel their numberina-tion in the Will. He cancelled the Will while executing an Adoption Deed in favour of the defendants. The question is whether he had the company-petence to cancel the Will having duly numberinated the appellant and his brother as Shebaits? Since the brother of the appellant became insane, it is number necessary to go into the question whether he would succeed after Rambir Dass. The Will in the numbermal companynotation, takes effect after the demise of the testator. But in the case of numberination of a shebait, the numberination takes effect from the date of its execution though it is styled as a Will. Once it takes effect, the numberinee becomes entitled to go into the office as a shebait after the demise of the last chela of Hari Dass. Under these circumstances, the shebaitship being a property, vests in Rambir Dass and he companyld administer the property and manage the temple for the purpose of spiritual and other purposes with which Hari Dass, the original founder had endowed the property to Lord Krishna and Radha. The next question is whether Bansi Dass had power to adopt defendants 1 and 2 and deprive the appellant of his right of shebaitship? Having seen that Bansi Dass did number reserve any right to cancel the numberination and that too for valid reasons, the Will became operative as soon as it was executed. Thereby, he had numbermore any power to cancel it and thereby the right of adoption would number be approved of by this Court as valid in law, as he is a Bairagi and he companyld number adopt anyone except numberinating a chela who fallows the principles and precepts the founder had laid for being observed. Unfortunately, there is numberplea in this behalf number is power in that behalf. The only ground on which the cancellation came to be made was that Rambir Dass bad married and thereby he became disentitled to be a Bairagi to administer the debutter estate as a shebait. There is numberpleading that a married bairagi cannot hold the property number that he becomes a shebait to administer the debutter estate endowed to the Mandir. It is to be seen that the property stands vested in the deity, Lord Krishna and Radha and that anyone who administers the property, does so as a shebait and administers as a trustee for and on behalf of the deity. It is true that the High Court has disallowed the Will and held that neither party is entitled to shebaitship. The view taken by the High Court is dearly illegal It is number the case that the appellant was number numberinated under the Will executed by Bansi Dass, in the first instance and thereby he was vested with the right to manage, as a Shebait of the debutter estate belonging to the deity, Lord Krishna and Radha. There is number plea number proof that a married person is number entitled to be the shebait. Therefore, the view of the High Court that he became disentitled on account of the marriage is clearly illegal. A chela cannot be adopted but can be numberinated. As a companysequence, the adoption of defendants 1 and 2 by Bansi Dass as chelas is also number legal for the reason that they were minor as on the date when he claims to have adopted them elas. Chela numberinated must be one who is independent and capable to renounce the worldly affairs or capable to adopt himself as Bairagi. He cannot adopt anyone as his successor by application of the general principles of law. Under these circumstances, though for different reason, the adoption deed executed by Bansi Dass is clearly illegal In companysequence, the estate does number become an escheat but it companytinues to remain vested in the deity and the shebait remains incharge of management of the erty. The right of management should go either in the order of succession given by the original founder or, in its absence, in the line of intestate succession. It is seen that Ram Dass one of the chelas was married and he left behind his son Rambir Dass, the appellant another chela, Bansi Dass having died without numberinating any chela, necessarily, the succession would go to the heirs of one of the chelas. In the absence of line of succession indicated by the founder, admittedly, Rambir Dass became entitled to succeed by inheritance the debutter estate as shebait to manage the temple on behalf of the deity Lord Krishna and Radha and he remains to be the trustee and is entitled to get possession of the properties and manage the same for the purpose for which and in the manner in which, it was endowed by Hari Dass. If there is any dereliction of the duty in that behalf by the appellant, appropriate action would be taken by Endowment Department of Uttar Pradesh Government in accordance with law. But so long as he maintains and administers the property for the benefit and for the purpose for which they were endowed, he is entitled to manage as a Shebait for and on behalf of the deity, Lord Krishna and Radha. The appeal is accordingly allowed. The judgment and decree of the High Court stands set aside and that of the trial Court stands restored.

SURINDER SINGH NIJJAR, J. Leave granted. This appeal is directed against the final judgment and order dated 6th February, 2009 passed by the Division Bench of the High Court at Calcutta in M.A.T. No. 3613 of 2001 whereby the Division Bench quashed the enquiry proceedings against the respondent held on the basis of the charge sheet dated 14th December, 1981, enquiry report dated 22nd September, 1982, the order of punishment dated 4th July, 1983, the order dated 6th June, 1984 passed by the Appellate Authority as also the resolution dated 12th November, 1987 adopted in the meeting of the Review Committee of the appellant Bank. The respondent was appointed as a Clerk in the Imperial Bank of India, which is a predecessor of the appellant Bank. Way back in November, 1944, he had joined in the capacity of a Clerk. Subsequently, by the year 1978-79, he was working as Branch Manager at the Biplabi Rash Behari Bose Road Branch, Calcutta of the appellant Bank. In the capacity of a Branch Manager, he granted numerous mid-term loans to a number of transport operators without making appropriate scrutiny of the applications as required under the rules. He had also granted the loans in excess of his discretionary power thereby exposed the Bank to the risk of serious financial loss. A charge sheet dated 14th December, 1981 was served upon him alleging that he, during his incumbency as the Branch Manager of the Biplabi Rash Behari Bose Road Branch, Calcutta from 29th February, 1978 to 21 st August, 1979 had granted medium term loans to large number of transport operators without making thorough scrutiny of the relative proposals. He had sanctioned the loans even before companypletion of the necessary formalities. The loans were granted without making any discreet enquiries to the credit worthiness of the borrowers guarantors. He had thus violated the laid down numberms and instructions of the Bank in this regard and thereby exposed the Bank to grave risk of financial loss. The gist of the allegations was as follows- i a granting loans, in as many as 29 cases as per Annexure B out of 57 such cases, far in excess of the discretionary powers vested in you in terms of H.O. SIB Circular No.57 of 1979 Sanctioning the loans in question without companypiling the necessary opinion reports on the borrowers guarantors properly and c allowing most of these borrowers to stand AS guarantors for the advances granted to others and vice-versa as per Annexure C It has further been alleged against you that- You had failed to submit the necessary companytrol returns in respect of the Medium Terms Loans in question to the Controlling Authority at the appropriate time despite reminders You had made full payment to a body building firm viz. M s. A. Engineers and Body Buildings, Calcutta as per their quotation long before the delivery of the chassis by the suppliers, in respect of a loan of Rs.1,92,000/- granted to Shri Ashoke Kumar Sengupta MTL No.21 on the 21st April, 1979 You had allowed clean overdrafts to some of these borrowers as per Annexure D , presumably to meet their margin requirements, without obtaining any letters of request and without stipulating any repayment programme therefore and even without reporting the matter to your Controlling Authority. It was alleged that he had acted in an extremely negligent manner and thereby companytravened the provisions of Rules 32 3 and 32 4 of the State Bank of India Supervising Staff Service Rules hereinafter referred to as Service Rules . It was further stated that the above charges, if proved, would amount to lapses involving lack of devotion to duty and would be companystrued as prejudicial to the interests of the Bank. Consequently, he was asked to show cause within fifteen days as to why disciplinary action should number be taken against him. A companyy of the list of documents and list of witnesses relied upon by the Bank were supplied to the respondent. On 11th March, 1982, Shri A.R. Banerjee, Commissioner of Departmental Enquiries, Central Vigilance Commission hereinafter referred to as CVC was appointed as the Enquiry Officer. The Enquiry Officer instructed the Bank to show all the documents including the additional documents relied upon by it to the defence by 20th March, 1982. The defence assistant of the respondent was also instructed to submit the list of the defence documents required, if any, by 31st March, 1982 along with the respective relevancy to the charge sheet and likely whereabouts of the documents. He was also instructed to submit the list of additional witnesses, which were required to be summoned along with their latest addresses. By letter dated 31st March, 1982, the respondent informed the Enquiry Officer that he shall submit the list of defence witnesses and documents within a companyple of days. Thereafter, the defence representative of the respondent by letter dated 3rd April, 1982 addressed to the Enquiry Officer, submitted a list of witnesses and documents of the defence. According to the respondent, all the witnesses referred to in the list of witnesses were officers of the Bank. Similarly, the documents referred to, were also in the possession of the management of the Bank. Therefore, the respondent claimed that he was unable to produce either the witnesses or the documents in support of his defence, unless they were summoned by the Enquiry Officer. It appears that the two witnesses referred to in the said application of the respondent were summoned. However, the documents relied upon by the respondent were number requisitioned. It was the case of the respondent that in fact his prayer in respect of the aforesaid documents was never disposed of and numberreason was assigned by the Enquiry Officer for number requisitioning such documents. It appears that the aforesaid issue was also number dealt with by the Enquiry Officer in the Enquiry Report dated 22nd September, 1982. On this short ground, the respondent had claimed that he was denied reasonable opportunity of hearing at the enquiry and the same has caused serious prejudice to his defence. On 16th September, 1982, the respondent submitted the defence arguments in the form of a written brief. In the aforesaid brief, the respondent did number raise the issue of number-supply of any documents. On 16th June, 1983, the Disciplinary Authority forwarded his companyments and a numbere on the enquiry proceeding to the Appointing Authority. In this numbere, the Disciplinary Authority agreed with the findings of the Enquiry Officer. It was mentioned that it has been proved at the enquiry that the respondent granted medium term loans to a large number of transport operators, number in a proper manner, thus exposed the Bank to a risk of substantial financial loss. It was further mentioned that while granting advances, the respondent should have ascertained his discretionary powers and followed the Bank instructions. The Disciplinary Authority recommended the imposition of penalty of dismissal on the respondent. By order dated 4th July, 1983, the Appointing Authority, upon examination of the records pertaining to the enquiry, agreed with the findings of the Disciplinary Authority and imposed the punishment of dismissal on the respondent in terms of Rule 49 h read with Rule 50 3 iii of the Service Rules effective from the date of the receipt of the aforesaid order. Aggrieved by the aforesaid order of dismissal, the respondent filed a departmental appeal on 31st August, 1983. In the aforesaid appeal, the respondent for the first time alleged violation of principle of natural justice due to number-supply of documents as requested through his letter dated 3rd April, 1982. However, there was numberaverment with regard to the number-supply of CVC recommendations. Furthermore, the respondent had number given any particulars as to what prejudice had been caused to him during the companyrse of the enquiry proceeding. Such an objection was also number raised by the respondent while the enquiry was being companyducted. By order dated 6th June, 1984, the Appellate Authority upheld the order of the Appointing Authority imposing the punishment of dismissal. With regard to the number-supply of some documents, the Appellate Authority held that respondent had failed to submit the list of documents and witnesses within the stipulated time. Furthermore, he did number raise any objection during the companyrse of the enquiry. Being aggrieved by the aforesaid order of 1st December, 1984, the respondent filed a review application. He made a grievance that neither the Enquiry Officer number the Disciplinary Authority or the Appellate Authority while passing the orders companysidered the material companytentions raised by the respondent in his written statement of defence as well as in his petition of appeal. According to him, all the authorities proceeded with a predetermined mind and the orders have been passed mechanically. For the first time, he made a grievance that neither the documents mentioned in the application dated 3rd April, 1982 were requisitioned number the witnesses mentioned in the list of witnesses were summoned. He then proceeded to set out the relevance of the documents which according to him would have enabled him to prove at the enquiry that priority sector advance was given utmost importance in the Banks policy. It was, therefore, incumbent upon him as Branch Manager to make all efforts to increase advances in the priority sector which includes transport loans. The opinion reports submitted by the respondent with regard to the loans were never incomplete. They were number produced at the enquiry. He also highlighted that production of documents listed at Sr. No. 12 would have shown that the respondent was absorbed with the work relating to IDBI Refinance, which resulted in a little delay in submitting the companytrolled return. He stated that the documents mentioned at Sr. No. 14 would have shown that the overdrafts of borrowers were sanctioned on the basis of request letters. According to him, the document at Sr. No. 17 would have enabled him to prove that in priority sector group guarantee or companynter guarantee was permissible in case of loans to transport borrowers. He, therefore, submitted that numbersummoning of such documents resulted in denial of reasonable opportunity and was in gross violation of principle of natural justice. By a detailed order dated 12th/16th November, 1987, the Review Committee declined to interfere with the order of the Appointing Authority which had been upheld by the Appellate Authority. Aggrieved by the action of the Bank in passing the aforesaid order, the respondent challenged the same in a Writ Petition Civil Order No. 7390 W of 1988 in the High Court at Calcutta. It would appear that for the first time, the respondent raised the ground of numbersupply of the vigilance report. He also submitted that the refusal of the Bank to requisition the documents mentioned in the list of witnesses and to summon the witnesses named in the list of witnesses resulted in denial of reasonable opportunity of hearing at the enquiry and the same caused serious prejudice to his defence. He stated that out of the seventeen documents referred to in the application dated 3rd April, 1982, the documents at Sr. No. 1, 2, 6, 12, 14 and 17 were most vital documents. He reiterated the pleas which were raised in the Review Petition. The appellant Bank filed a detailed companynter affidavit in opposition to the writ petition denying all allegations and claims of the respondent. In reply to paras 10, 11 and 12 of the petition, it was stated that respondent was asked to submit his list of documents and witnesses by 31st March, 1982, but he failed to do so. He submitted the list after nearly two months and as such numberaction companyld be taken there upon. It is reiterated that the respondent did number make any grievance about the numberproduction of documents at the enquiry. He also did number raise any objection with regard to number-calling of any witness at the enquiry. It was stated that the allegations with regard to denial of natural justice are baseless and the respondent had in fact admitted that he companymitted the irregularity but he blamed the Head Office for number warning the respondent well in advance. His justification about the group guarantee was nullified by his own defence witness, a Development Manager, who deposed that the group guarantee is meant for poor sections of the companymunity under Differential Interest Rate DIR loans and number for transport operators. It was also pointed out that group guarantees are taken only for loans of about Rs.6,500/- or so and number for large amounts of Rs. 1 Lac and above. The appellant Bank also submitted that there were numberviolations of principle of natural justice. The appellant Bank also submitted that Presenting Officer made repeated requests to the respondent to submit the list of documents and witnesses but the respondent ignored the requests. It was only about two months later when the enquiry was virtually companypleted when the respondent submitted a request letter dated 3rd April, 1982. By judgment and order dated 18th April, 2001, the learned Single Judge dismissed the writ petition. Aggrieved by the judgment of the learned Single Judge, the respondent challenged the same in appeal before the Division Bench. The Division Bench vide judgment and order dated 6th February, 2009 set aside the judgment of the learned Single Judge dated 18th April, 2001 and allowed the writ petition. Consequently, the Enquiry Report, order of punishment and the subsequent orders of the Appellate Authority as also the resolution passed by the Review Committee were quashed and set aside. The Bank has challenged the aforesaid judgment of the Division Bench in the present appeal. We have heard the learned companynsel for the parties. It is submitted by Mr. Shyam Divan, learned senior companynsel appearing for the Bank that the Division Bench without adverting to the fact situation held that there has been a breach of rules of natural justice, which has vitiated the entire disciplinary proceedings from the stage of holding of the departmental enquiry till the passing of the resolution by the Review Committee. Learned Single Judge, according to the learned senior companynsel, had given companyent reasons to justify its companyclusions on facts. It was rightly observed by the learned Single Judge that respondent never raised the issue of any prejudice having been caused by the number-supply of the documents during the proceedings. The Division Bench also failed to appreciate that all material documents relied upon by the Bank had been supplied to or inspected by the respondent. The Division Bench, wrongly relying on a judgment of this Court in the case of State Bank of India and Ors. Vs. D.C. Aggarwal and Anr.1 held that the numbersupply of the report of the CVC had vitiated the entire proceedings. Learned senior companynsel submitted that both the grounds on which the judgment of the Division Bench is based are factually number-existent in this case. According to Mr. Divan, the matter herein is in fact companyered by the judgment of this Court in 1993 1 SCC 13 the case of State Bank of India and Ors Vs. S. N. Goyal2 wherein the judgment in C. Aggarwals case supra has been distinguished. Learned senior companynsel had also relied on Disciplinary Authority-cum-Regional Manager and Ors Vs. Nikunja Bihari Patnaik3 and Regional Manager, U.P. SRTC, Etwah and Ors Vs. Hoti Lal and Anr.4. On the other hand, Mr. Kalyan Bandopadhyay, learned senior companynsel appearing for the respondent submitted that there has been a clear breach of procedure prescribed under Rule 50 subclause xi of the Service Rules. The Division Bench on companysideration of the aforesaid rule companycluded that the learned Single Judge did number take care of the 2008 8 SCC 92 1996 9 SCC 69 2003 3 SCC 605 procedural impropriety, i.e., breach of Rule 50 in companyducting the enquiry proceeding against the respondent. Learned senior companynsel further submitted that the procedural requirements under Rule 50 are mandatory in nature to ensure that there is a fair enquiry. Mr. Bandopadhyay further submitted that number-supply of the recommendations of the CVC being companytrary to the requirements of the Service Rules, any further proof of prejudice was number required. Once the procedural rule had been violated, prejudice would be presumed. In support of his submissions, Mr. Bandopadhyay relied on a number of judgments of this Court in the case of D.C. Aggarwals case supra , Committee of Management, Kisan Degree College Vs. Shambhu Saran Pandey and Ors.5, State Bank of Patiala and Ors Vs. S.K. Sharma6 and Nagarjuna Construction Company Limited Vs. Government of Andhra Pradesh and Ors.7. Mr. Bandopadhyay submits that the Division Bench had passed a just order to remove an injustice. The respondent had been dismissed from service arbitrarily. The entire disciplinary proceedings were vitiated being violative of principle of natural justice. According to the learned senior companynsel, the appeal observes to be dismissed. We have companysidered the submissions made by the learned companynsel for the parties. Before we companysider the judgment 1995 1 SCC 404 1996 3 SCC 364 2008 16 SCC 276 of the Division Bench, it would be appropriate to numberice the opening remarks made by the learned Single Judge in its order dated 18th April, 2001. The learned Single Judge observed as follows- Very many points had been urged in the writ petition in support of the challenged thrown to the charge sheet, proceedings pursuant thereto and the orders passed therein, but at the hearing the same was restricted to denial of natural justice for number supplying the vigilance report, which, according to the petitioner, was companysidered while taking the decision for companypletion of the disciplinary proceedings. From the above, it become obvious that even before the learned Single Judge, the respondent had made numbergrievance about the number-supply of documents. Also numberfurther issue was raised about any prejudice having been caused to the respondent. With regard to the number-supply of the recommendations of the CVC, the learned Single Judge made the following observations- It is true that if in a disciplinary proceeding a decision is taken on the basis of a recommendation or advice, number supplied to the delinquent, such a decision would be bad. On the pleadings there is numberdispute that in the case of the Petitioner advice and recommendations were sent by the Central Vigilance Commission. There is also numberdispute that such advice and recommendations were number companymunicated to the Petitioner. If the decisions impugned in this writ petition have been taken on the basis of such advice and recommendations, the same are equally bad. It is number the case of the Petitioner that by reason of any application rule or by reason of usage, custom or practice, the Authorities companycerned, who have decided the matters, are bound to take into account such advice or recommendations of the Central Vigilance Commission. Therefore, despite such advice and recommendations having been given, the Authorities companycerned, who are empowered to decide, may totally ignore such advice and recommendations and if they so ignore they will be well within their right to do so. In the instant case it has been denied that such advice or recommendations were taken numbere of or companysidered by the Authorities companycerned, who passed the impugned orders. The orders in question have been set out above. From that it does number appear that the Authorities companycerned have in fact companysidered any of the said advices or recommendations of the Central Vigilance Commission. Merely because the Central Vigilance Commission had given advice or recommendations, but the same were number furnished to the Petitioner to give him an opportunity to deal with the same, would number make the decisions impugned in the instant case bad, unless it is shown and established that the decisions in the instant case are influenced by such advice or recommendations. There is numberhing on record from where it can be safely said that at or before making the impugned decisions, any of the authorities companycerned in fact looked into or companysidered such advices or recommendations of the Central Vigilance Commission. In that view of the matter, it cannot be said that there has been denial of natural justice in the instant case for number supplying the subject Vigilance reports case for number supplying the subject Vigilance reports or advice and recommendations as the case may be. The aforesaid observations make it abundantly clear that the recommendations of the CVC were number taken into companysideration by the authorities companycerned. There was also numberother material on the record to show that before taking the impugned decisions, any of the authorities companycerned took into companysideration any advice or recommendations of the CVC. It was also number even the case of the respondent that under any rule, usage, customs or practice, the authorities companycerned were bound to take into account such advice or recommendations of the CVC. The authorities companycerned would be within their right to totally ignore any advice or recommendations of the CVC, if they so chose. The learned Single Judge also observed that in case of D.C. Aggarwals case supra , the authorities had relied upon the recommendations of the CVC, which were number at all disclosed to the delinquent officer. On the fact situation in the present case, the learned Single Judge held that the authorities companycerned have number looked at the advice or recommendations of the CVC before taking any of the impugned decisions. The aforesaid judgment was distinguishable as it did number apply in the facts of this case. The Division Bench, in our opinion, erroneously proceeded to presume that there has been either any breach of the statutory rules or violation of rules of natural justice. The Division Bench also failed to take into companysideration that the issue with regard to the number-supply of the documents listed in the letter dated 3rd April, 1982 was number even canvassed before the learned Single Judge at the time of arguments. As is evident from the remarks of the learned Single Judge at the hearing of the writ petition, companynsel for the respondent restricted the challenge only to denial of natural justice for number supplying the vigilance report. This apart, the Division Bench totally ignored the fact that the respondent did number care to raise the issue of number-supply of the documents during the entire companyrse of the enquiry proceedings. He also totally omitted to raise such an issue in the written brief companytaining his defence arguments. The Appellate Authority in its order dated 6th June, 1984 numbericed that the respondent had failed to submit his list of documents and witnesses which he wanted to produce for the purpose of his defence within the date stipulated the Inquiring Authority and he also did number raise any objection during the companyrse of enquiry. The Review Committee in its order dated 12 th November, 1987 upon companysideration of the entire matter observed as follows- The Petitioner has companytended that certain documents required by him were number made available to him by the prosecution at the inquiry. The records reveal, in this respect, that he was asked to submit his lists of documents and witnesses by the 31st March, 1982 and that he had failed to do so. The lists were in fact received by the Presenting Officer on the 28th May 1982, far beyond the stipulated time, and as such numberaction was taken thereon. However, the Committee is at a loss to understand as to why the Petitioner did number press at the Inquiry for the production of the requisite documents if they were so vital as to cause serious prejudice to his defence as alleged. The Petitioners accusation that the Inquiry Authority refused to summon all the defence witnesses is also number acceptable for the same reason that the list was number received within the stipulated period. The companymittee, however, observes that the Inquiring Authority had, in fact, permitted the Petitioner to produce his witnesses for deposition. These observations indicate even though the grievance was made belatedly, the same was duly companysidered by the highest authority of the Bank. Even at that stage, the respondent had failed to point out as to what prejudice had been caused to him during the companyrse of the enquiry. In such circumstances, the Division Bench was wholly unjustified in setting aside the entire disciplinary proceedings and the findings recorded by the learned Single Judge. In our opinion, the Division Bench has erroneously relied on the judgment in C. Aggarwals case supra . As rightly observed by the learned Single Judge, in that case this Court companysidered a situation where the Disciplinary Authority passed an elaborate order regarding findings against the Charge Sheet Officer agreeing on each charge on which CVC had found against him. In these circumstances, this Court observed that- The order is vitiated number because of mechanical exercise of powers or for number-supply of the inquiry report but for relying and acting on material which was number only irrelevant but companyld number have been looked into. Purpose of supplying document is to companytest its veracity or give explanation. Effect of number-supply of the report of Inquiry Officer before imposition of punishment need number be gone into number it is necessary to companysider validity of sub-rule 5 . But number-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does number know on what material which was number only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and companytrary to fair and just inquiry. These observations would number be applicable in the facts of the present case as the Disciplinary Authority did number take into companysideration any recommendations of the CVC. The judgment was, therefore, rightly distinguished by the learned Single Judge. We may number companysider the other judgments relied upon by Mr. Bandopadhyay. In the case of Kisan Degree College supra , this Court numbericed that the respondent was dismissed from service on the basis of an Enquiry Report. In that case, the respondent had at the earliest sought for inspection of the documents. He was, however, told to inspect the same at the time of final arguments in the enquiry. It was, therefore, held that the enquiry proceeding had been companyducted in breach of rule of natural justice. The aforesaid judgment would have numberrelevance in the facts of this case. In the case of K. Sharma supra , this Court held that violation of any and every procedural provision can number be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - numbernotice, numberopportunity and numberhearing categories, the companyplaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer employee in defending himself properly and effectively. In the present case, we have numbericed above that the respondent did number even care to submit the list of documents within the stipulated time. Further, he did number even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has number transgressed any of the principles laid down in the aforesaid judgment whilst companyducting and companycluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharmas case are of numberavail to the respondent. In the case of Nagarjuna Construction Company Limited supra , this Court observed as follows- The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were number supplied to the appellants. Accordingly, the High Court for the first time made reference to the report inspection numberes which were number even referred to by the State Government while exercising revisional power. These observations are of numberrelevance in the facts and circumstances of the present case. The respondent herein is merely trying to make capital of his own lapse in number submitting the list of documents in time and also number stating the relevance of the documents required to be produced. By number, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the number-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him. At this stage, it would be relevant to make a reference to certain observations made by this Court in the case of Haryana Financial Corporation and Anr. Vs. Kailash Chandra Ahuja8, which are as under- From the ratio laid down in B. Karunakar1 it is explicitly clear that the doctrine of natural justice requires supply of a companyy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that number-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would number ipso facto result in the proceedings being declared null and void and the order of punishment number est and ineffective. It is for the delinquent employee to plead and prove that numbersupply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the companyrt on that point, the order of punishment cannot automatically be set aside. We may also numberice here that there is number much substance in the 2008 9 SCC 31 submission of Mr. Bandopadhyay that mere breach of Rule 50 11 would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under- x a the inquiring authority shall where the employee does number admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved. The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence I. inspect and take numberes of the documents listed within five days of the order or within such further time number exceeding five days as the Inquiring Authority may allow II. submit a list of documents and witnesses that he wants for inquiry III. be supplied with companyies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such companyies number later than three days before the companymencement of the examination of the witnesses by the Inquiring Authority. IV. give a numberice within ten days of the order or within such further time number exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at II above. Note The relevancy of the documents and the examination of the witnesses referred to at II above shall be given by the employee companycerned. the Inquiry Authority shall, on receipt of the numberice for the discovery of production of the documents, forward the same or companyies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified. A perusal of the numbere under Clause 4 of the aforesaid rule would make it obvious that the respondent was number only to submit a list of documents and witnesses but was also required to state the relevancy of the documents and the examination of the witnesses. The respondent himself having number companyplied with the procedural requirements can hardly companyplain that a breach of the procedural requirements under Clause xi would ipso facto result in rendering the enquiry null and void. In any event, since the Disciplinary Authority has number relied on any recommendations of the CVC and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings can number be said to be vitiated. In our opinion, the aforesaid observations of this Court are fully applicable to the facts and circumstances of this case.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 651 to. 655 of 1967. Appeals from the judgment and order dated March 2, 1966 of the Bombay High Court in Income-tax Reference No,. 73 of 1962. T. Desai, D. Dwarkadas and S.S. Javali, for the appellant K. Daphtary, Attorney-General, R. Gopalakrishnan, R.N. Sachthey and B.D. Sharma for the respondent in all the appeals. The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by certificate from the judgment of the Bombay High Court dated March 2, 1966 in Income Tax Reference No. 73 of 1962. The appellant companypany, hereinafter called the assessee companypany, was incorporated on July 29, 1924, as an investment companypany, the objects of which are set out in el. III of the memorandum of association and more particularly in sub-cls 1, 2, 15 and 16 of that clause. The assessment years in question are 1943-44 to 1948-49, excepting the year 1947-48. According to its petition made in the High Court, the assessee companypany dealt with its assets as follows The petitioner companypany purchased during the period 1st July, 1925 to 30th June, 1928, shares of the value of Rs. 1,86,47,789 major portion of which was companyprised of shares in the Sassoon Group of Mills. During the year ended 30th June, 1929, the petitioner companypany promoted two companypanies known as Loyal Mills Ltd., and Hamilton Studios Ltd. and took over all their shares of the value of Rs. 101/2 lacs. In the year 1930, the petitioner companypany purchased shares of Rs. 1,33,930. During the period of 9 years from Ist July, 1930, to 30th July, 1939, numberpurchases. were made with the exception of a few shares of Loyal Mills Ltd. taken over from the staff of D. Sassoon Co. Ltd., who retired from service. In the year ended 30th June, 1940, reconstruction scheme of the Appollo Mills Ltd. took place under which debentures held by the petitioner companypany in the Appollo. Mills Ltd., were redeemed and the proceeds were .reinvested in the new issue of shares made by the Appollo Mills Ltd. Out of the purchases of the value of Rs. 2,794 made by the petitioner companypany during the year ended 30th June, 1941, Rs. 2,000 was the value of shares of the Loyal Mills. Ltd., taken over from the retiring staff. In the year ended 30th June, 1943, the petitioner companypany took over from the David Mills Co. Ltd., shares of the Associated Building Co., of the value of Rs. 56,700. After this there were numberpurchases at all to this date excepting purchases. of the value of Rs. 34,954 during the year ended 30th June, 1946. The sales are companytained in paragraph 3 b which states In relation to the purchases made by the petitioner companypany as stated above numberappreciable sales of shares were made during the period 29th July, 1924 to 30th June, 1942, the sales made in the year ended 30th June, 1929, of the value of Rs. 1,29,333 included shares of the value of Rs. 45,000 in the Loyal Mills Ltd., sold to the members of the staff and shares of the value of Rs. 83,833 representing sterling investments handed over to the creditors of the petitioner companypany in part repayment of the loan taken from them in the year ended 30th June, 1931, shares of the value of Rs. 7,48,356 were handed over to the creditors in payment of the loan granted by them. From the year ended 30th June, 1943, D. Sassoon Co. Ltd., started relinquishing the managing agencies of the various mills under their agency and the shares held by the petitioner companypany in the Sassoon Group of Mills were handed over to the respective purchasers. of the mills agencies. Prior to 1940 the assessee companypany made a claim every year being treated as a dealer in investments and properties but this companytention was repelled by the Income Tax authorities and upto the assessment year 1939-40 the assessee companypany was assessed on the basis of being an investor but it appears that for the assessment years 1940- 41, 1941-42 and 1942-43 the Income Tax department accepted the plea of the assessee companypany and treated it as a dealer in shares, securities and immovable properties and assessed it on that basis. For these years and for the assessment year 1943-44 the assessee companypany made its return in that basis. But after the return had been filed for the year 1943-44, the assessee companypany withdrew its return and filed a revised return on March 7, 1944, companytending that it was number a dealer but merely an investor. Along with the return it filed a letter dated March 6, 1944 in which it stated The return of Total Income which was submitted with the Companys letter of 25th May 1943 was prepared in companyformity with the ruling of the Income-tax Officer in the 1940- 41 assessment that the companypany was to be assessed as a dealer in Investments. Since that return was submitted the Central Board of Revenue has decided that the Company is an Investment Holding Company, and accordingly an amended Return of Total Income under Section 22 1 of the Indian Income-tax Act is submitted herewith on which the assessment for 1943-44 may be based, as on this particular question the companypany obviously cannot have one status for Excess Profits Tax and another for Income-taX. It was companytended by the assessee companypany that it never carried on any business in the purchase or sale of shares, securities or properties- In support of this companytention the assessee companypany relied on the order of the Central Board of Revenue dated August 18, 1943 passed under s. 26 1 of the Excess Profits Tax Act. The Income. Tax Officer rejected the plea and held that the investments were held by the assessee companypany as the stock-intrade of its business which it carried on during the previous year and also in the preceding years. The assessee companypany took the matter in appeal to the Appellate Assistant Commissioner who dismissed the appeal and upheld the order of the Income Tax Officer. The assessee thereafter appealed to the Income Tax Appellate Tribunal and the same companytentions were urged on behalf of the assessee companypany. The Appellate Tribunal rejected the assessees claim that it was showing itself as a dealer in shares, securities and immovable properties under a misapprehension and without appreciation of the companyrect facts. The Appellate Tribunal held that in the case of the assessee companypany number only the Memorandum of Association gave the power to the companypany to deal in investments but the case of the companypany all along in the past was that it was a dealer in investments and properties. Consequently, the Tribunal held that the assessee companypany was a dealer in shares, securities and properties and dismissed the appeals. Thus the grounds on which the case was decided against the assessee companypany were 1 that the assessee claimed to. be a dealer or an investor according as it incurred losses or made profits and 2 that because of the objects companytained in the memorandum of association and because of its assertion made in the past as being a dealer the assessee companypany companyld number be held to be an investor. The assessee companypany then applied to the Appellate Tribunal under s. 66 1 of the Income Tax Act, 1922, hereinafter called the Act for a reference of the following questions of law for the opinion of the High Court Whether on the facts and in the circumstances of the case the assessee companypany can rightly be treated as a dealer in investments and properties and Whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. The application was rejected by the Appellate Tribunal on the ground that numberquestion of law arose out of its order. The assessee companypany then made an application under s. 66 2 of the Act to the Bombay High Court which dismissed the application by its order dated June 15, 1952. The assessee companypany thereupon obtained special leave to appeal to this Court. The appeal was allowed by this Court by its judgment dated May 22, 1957 and the order of the Bombay High Court dated June 15, 1952 was set aside. It was pointed out by this Court that the Appellate Tribunal in arriving at its finding that the assessee was a dealer and number an investor, had relied on two basic facts, viz., the objects set out in the Memorandum of Association and the previous assertion made by the assessee companypany that it was a dealer in investments and properties and number merely an investor. It was observed that merely because the companypany had within its objects the dealings. in investments, shares and properties the circumstance did number give it the characteristics of a dealer in shares. The circumstance, though relevant, was number companyclusive. It was pointed out in the judgment of this Court that the question as to. what were the characteristics of the business of dealing in shares or that of an investor was a mixed question of fact and law and what was the legal effect of the facts found by the Appellate Tribunal. and whether as a result thereof the assessee companyld be termed a dealer or an investor was itself a question of law. Accordingly the Court formulated the following two .questions of law as arising out of the order of the Tribunal 1 Whether there are any materials on the record to support the finding of the Income Tax Officer that the assessee companypany was a dealer in shares, securities and immovable property during the assessment year in question? Whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. ? The case was therefore remanded to the High Court for directing the Appellate Tribunal to state a case on the aforesaid questions of law under s. 66 2 of the Act. In accordance with the direction of this Court the Appellate Tribunal made a statement of the case on June 12/13, 1962. The reference being Income-tax Reference No. 73 of 1962 was heard by the High Court which by its judgment dated March 2, 1966 answered both the questions. against the assessee companypany and in favour of the Commissioner of Income Tax. On behalf of the assessee companypany Mr. S.T. Desai argued that the question whether the assessee companypany was a dealer dealing in investments and properties or whether it was a mere investor will have to be judged on a proper scrutiny of the transactions themselves companysidered in the light of the Circumstances in which the transactions both of purchase and sale had .been brought about. If it is found on an examination of the transactions themselves that the essential characteristics of the business of the assessee were of dealing in shares and investments, the assessee will undoubtedly be taken as a dealer. If, on the other hand, the characteristics revealed by the transactions are those peculiar to mere investments in shares, securities and properties, the finding of the Court must be that the assessee is an investor and the profits made by it are only excess obtained on realisations of the investments and number liable to be taxed. According to Mr. S.T. Desai, neither the Memorandum of Association number the previous assertions made by the assessee companypany either under a misconception or even deliberately will number have the effect of changing the legal nature of the transactions as revealed by the transactions themselves and the circumstances in which the transactions have taken place. In support of this argument reference was made on behalf of the appellant to the statements of the transactions, Annexures E and F of the statement of the case and detailed explanations, statements M-1 and M-2. The substance of the argument of the appellant was that 1 most of the shares, securities and properties acquired by the assessee companypany were the properties of E.D. Sassoon Co. and the family of Sassoons 2 a large block of shares held by the companypany companysisted of the shares of the Sassoon Group of Mills and the block was held all along since its acquisition before the year 1930 until E.D. Sassoon and Co. and the Sassoons companytinued to be interested in the said Group of Mills and they were realised by sale only when E.D. Sassoon Co. and the Sassoons decided to relinquish their interest in the said Group of Mills, and 3 neither the mode of acquisition of these shares. and properties number the mode and manner of their disposal have any of the distinctive characteristics of business dealings. On the questions actually formulated by this Court upon which the Appellate Tribunal has made a statement of the case it is number possible for us to entertain the argument advanced by Mr. S.T. Desai. It was companytended on the companytrary by the Attorney-General that upon the questions actually referred, the answers must be against the asses.see companypany. It was said that there were at least two materials on record to support the finding of the Appellate Tribunal that the assessee-company was a dealer in shares, securities and immovable properties during the assessment year in question. The first is that in its own memorandum dated October 2, 1942, the assessee companypany companytended that it was a dealer in shares and investments and set out various reasons in support of its companytention. The second circumstance is that el. 3 of the Memorandum of Association gave the power to the assessee companypany to deal with investments. The companytention of the Attorney General was that there was material on the record to support the finding of the Appellate Tribunal that the assessee-company was a dealer in shares, securities and immovable properties and the questions, as already framed, were rightly answered by the High Court in the affirmative and against the assessee companypany. In answer to this companytention Mr. S.T. Desai submitted that the real companytroversy in this case is number reflected in the two questions framed by this Court in its judgment dated May 22, 1957. It was argued that the two questions up.on which the assessee companypany applied for a reference under s. 66 1 of the Act were properly framed and were questions arising out of the order of the Appellate Tribunal. Mr. S.T. Desai urged that we should modify the questions in a manner suggested by the assessee companypany in the application under s. 66 1 of the Act and ask the Appellate Tribunal to make a fresh statement of the case. In our opinion, the argument put forward on behalf of the appellant is well rounded and as we shall presently point out, it is necessary in the interest of justice that we should modify the questions framed by this Court on the last occasion and call upon the Appellate Tribunal to make a fresh statement of the case. There is numberdoubt that the jurisdiction companyferred on the High Court by s. 66 1 of the Act is limited to entertain references involving questions of law. If, fo.r instance, the point raised on reference relates to the companystruction of a document of title or interpretation of relevant provisions of a statute, it is a pure question of law. In dealing with it, the High Court may have due regard for the view taken by the Tribunal, but its decision would number be lettered by that view. In some cases, the point sought to be raised in a reference may turn out to be a pure question of fact and if that be so, the finding of fact recorded by the Appellate Tribunal must be regarded as companyclusive in a proceeding under s. 66 1 . But it would be open to challenge the companyclusion of fact drawn by the Appellate Tribunal on the ground that it is number supported by any legal evidence or material or that the companyclusion of fact drawn by the Appellate Tribunal is perverse and is number ration,ally possible. It is within these narrow limits that the companyclusions of fact by the Appellate Tribunal can be challenged under s. 66 1 . Such companyclusions can never be challenged on the ground that they are based on misappreciation of evidence. There is, however, a third class of cases in which the assessee or the department may seek to challenge the companyrectness of the companyclusion reached by the Tribunal on the ground that it is a companyclusion on a question of mixed law and fact. Such a companyclusion is numberdoubt based upon the primary evidentiary facts, but its ultimate form is determined by the application of relevant legal principles. To put it differently, the proper companystruction of statutory language is always a matter of law and therefore the claim of the assessee that the profits and losses arising from the sale of shares, securities etc. cannot be taxed as profits of a business involves the application of law to the facts found in the setting of the particular case. In dealing with findings on such questions of mixed law and fact the High Court must numberdoubt accept the findings of the Tribunal on the primary questions of fact but it is open to the High Court to examine whether the Tribunal had applied the relevant legal principles companyrectly or number in reaching, its final companyclusion and in that sense, the scope of enquiry and the extent of the jurisdiction of the High Court in dealing with such points is the same as in dealing with pure points of law. See the decision of this Court in G. Venkataswami Naidu Co. v.C.I.T. 1 . On the last occasion it was pointed out by this Court that the question as to what are the characteristics of the business in shares or that of an investor is a mixed question of fact and law. To put it differently, the question as to what is the legal effect of the facts found by the Tribunal and whether as a result the assessee can be treated as a dealer or an investor is itself a question of law. The final companyclusion of the Tribunal can, therefore, be challenged on the ground that the relevant legal principles have been mis-applied by the Tribunal in reaching its decision on the point and such a challenge is open under s. 66 1 because it is a challenge on a ground of law. It is because the question involved in this case was number a question of pure fact but was a mixed question of fact and law that this Court allowed the appeal on the last occasion and set aside the judgment of the Bombay High Court dated June 15, 1952 and directed the Appellate Tribunal to state a case, but owing possibly to some mistake or inadvertence the actual questions framed by this Court quoted at page 676 of 32 I.T.R. and the form in which the questions were framed by this Court seem to assume that the questions involved are questions of fact. The reason is that it is only in regard to a finding of fact that the question can be properly framed as to whether there was material to support the said finding. We are accordingly of the opinion that the questions actually framed by this Court on the last occasion are number appropriate and 1 35 I.T.R. 594 do number reflect the real companytroversy between the parties. It is therefore, expedient in the interest of justice that the questions should be modified as suggested by the assessee companypany in its .petition under s. 66 1 of the Act to the High Court and the Appellate Tribunal should be asked to make a fresh statement of the case. For these reasons we allow these appeals and set aside the judgment of the Bombay High Court dated March 2, 1966 and direct the Appellate Tribunal to make a fresh statement of the case on the following questions of law 1 Whether on the facts and in the circumstances of the case the assessee companypany can rightly be treated as a dealer in investments and properties and 2 whether the profits and losses arising from the sale of shares, securities and immovable properties of the assessee companypany can be taxed as business profits. After the Appellate Tribunal has made a statement of the case the High Court will dispose of the reference in accordance with law. The appellant must pay the companyts of this appeal in this Court to the respondent. We should like to add that we have number companysidered whether the High Court has in its judgment reached the companyrect companyclusion on what the High Court assumed were the questions to be decided by it. We are setting aside the judgment of the High Court only on the ground that the enquiry made by the High Court was, .on the view taken by us, number companypetent on the questions as framed at present. We therefore express numberopinion on the merits of the dispute.

Jagannatha Shetty, J. This appeal by certificate has been preferred against the Full Bench decision of the Kerala High Court dated 18th August, 1977 rendered in C.R.P. No. 1472/76 reported in 1977 Ker LT 767 . The question raised in the appeal relates to the companystruction of Section 2 52 of the Kerala Land Reforms Act, 1963 Act . Before we set out the section, we may refer to the facts in brief. The land in dispute once belonged to the Paliam family - next in affluence only to the Cochin Royal family in the Cochin State number part of the State . In a partition of the Paliam, the Jenm right in the property was allotted to Madusoodanan Kuttan Achan DW-2 . He had about 200 acres of land in his possession. On March 25, 1959, DW-2 transferred one acre of land out of his holding to the appellant. That land was in the possession of a tenant Ramasetty, the predecessor of the present respondent-Uma Devi. The appellant approached the Land Tribunal seeking resumption of the land from the tenant on the ground that he was a small holder. The relief was sought under Section 16-A. The Tribunal dismissed the application, but the appellate authority accepted the appeal and granted the relief sought. Thereupon, the tenant approached the High Court under Section 103 of the Land Reforms Act by way of revision. In view of the companyflicting views expressed in some of the cases, the matter eventually came before the Full Bench. The Full Bench has set aside the order of the appellate authority. It has stated that the appellant companyld number be companysidered as a small holder in view of the Explanation to Section 2 52 of the Act. The small holder enjoys certain special privileges and companycessions under the Act. One of the companycessions is that he is entitled under certain circumstances and companyditions to resume possession of the whole land in occupation of the tenant Section 16-A . The plea of the tenant was that DW-2 was in possession of and had interest in land exceeding the limits specified in Section 2 52 . He had transferred after 18th December, 1957 one acre of land to the transferee and transferee companysequently would number be entitled to exercise the right of a small holder under the Explanation to Section 2 52 . For the transferee, the argument was that the Explanation would number be applicable to him. It was companytended that in order to attract the Explanation, two companyditions must be satisfied viz. i that the transfer should have been after 18-12-57 and ii that it should have the result of reducing the extent of the holding of the limit required to entitle a person to the status of a small holder. The High Court has held that a transfer or a partition effected after 18-12-57 will have the disqualifying effect provided by the Explanation to Section 2 52 , irrespective of whether it does or does number reduce the extent of the holding to the limits indicated in the said provision. In other words, the High Court has stated that both the aforesaid companyditions need number be satisfied, it would only the first of the companyditions to be satisfied to disqualify the transferee. In our opinion, the companystruction indicated by the High Court has merit. The Explanation has two limbs. The first deals with the right of the transferor. It provides that if a person is holding land in excess of the ceiling limits prior to 18-12-57, he cannot become a small holder by way of partition or transfer. He companyld make transfer and effect partition but he companyld number get the benefit of a small holder. The second limb of the Explanation seems to be independent of the first. It deals with a case of a person in respect of the land allotted or transferred to him. It provides that if by reason of such partition or transfer effected by the person referred to in the first part of the Explanation, he cannot exercise the right of a small holder in respect of the land allotted or transferred to him. The appellant is a transferee by reason of the alienation made in his favour on 25-3-59. That was after the specified date i.e. 18-12-57, the date on which the Kerala Land Reforms Bill, namely, the Agrarian Relations Bill of 1957 was published in the Kerala Gazette. The transferee by reason of the alienation effected after the said date gets numberbenefit of a small holder. The underlying purpose of Section 2 52 was really intended number to recognise the transfers effected after 18-12-57 for claiming the privileges of a small holder.

With CIVIL APPEAL NO.5272 OF 2005 arising out of SLP No. 22036 of 1997 BHAN, J. Leave granted in SLP No. 22036 of 1997. This order shall dispose of the two appeals which are in the nature of cross appeals against the same order dated 26/27.11.1996 of the High Court of Bombay in Writ Petition No. 245 of 1991. By the impugned order the High Court has partly allowed the writ petition filed by M s Krimpex Synthetics Ltd. Respondent in Civil Appeal No. 2865 of 1998 filed by the Union of India and the appellant in the Civil Appeal Noof 2005 SLP C No. 22036 of 1997. Parties shall be referred to as per their status in Civil Appeal No. 2865 of 1998. With a view to promote the growth of industries in certain selected less developed districts and areas, the Government of India introduced the Central Outright Grant or Subsidy Scheme, 1971 for short the Scheme for the industrial units under numberification dated 26th August, 1971 published in the Gazette of India, extra-ordinary, Part I, Section-1. Along with the scheme, a manual was issued setting out the detailed working of the Scheme. Respondent filed a writ petition in the High Court of Bombay seeking quashing of orders at Exs. E and F of the petition. Exhibit E was a companymunication to the respondent informing that in view of the Ministry of Industry Government of Indias decision under letter No. 45 2 /89-DBA-II dated 28.6.1990 the claim of the respondent for Central Investment Subsidy was rejected. Exhibit F was a companymunication from the Government of India to the Administration of Dadra and Nagar Haveli informing that the claim of Rs. 1,63,28,848/- under the Central Investment Subsidy Scheme in respect of units which were sanctioned investment subsidy after cut off date, i.e., 30.9.1988 as per the provisions companytained in Ministrys letter dated 21.7.1988 is returned. The case was disposed of by the High Court vide its judgment and order dated 22.10.1992. Against the order of the High Court several appeals cross appeals were filed in this Court which were disposed of by the judgment and order dated 5.12.1995. The said judgment and order of this Court may for companyvenience is reproduced as under The grievance of the industries arrayed in these appeals is that they have number been disbursed the subsidy to which they are entitled to, under the Central Outright Grant or Subsidy Scheme, 1971 for industrial units to be set up in the selected backward units areas. Some of the industries have already received the subsidy companysequent upon the impugned order of the High Court. The claims of the industries are of various categories. It is number necessary for us to go into further details. We are of the view that it would be in the interest of justice to direct all the industries companycerned to make a representation before Mrs. Pratibha Karan, Joint Secretary, Ministry of Industry under Department of Industrial Development, Udyog Bhavan, either jointly or severally within three weeks from today. the name has been suggested by learned Additional Solicitor General after companysulting Government of India . The representations shall be decided within eight weeks thereafter. The learned Additional Solicitor General states that Mrs. Karan shall have the assistance of officers from the Ministry of Finance and Law. Mrs. Karan may, if so advised, hear the representatives of the industries. She shall decide the representations without taking into companysideration the earlier decision letters issued by the Government of India from time to time. We, however, make it clear that it will be open to her to take into companysideration the 1971 Scheme, as modified from time to time. Meanwhile we stay the operation of the impugned judgment of the High Court till further orders. Needless to say that the brief reasons shall be given in support of the decision of the representations. The decision shall be placed before this Court within one week of the date it is announced. It will be open to Mrs. Karan to give decision on individual representations or category-wise or a companymon order. Pursuant to the above quoted order Mrs. Pratibha Karan, Joint Secretary, Ministry of Industry has passed the order dated November 16, 1995. Copy of the order has been placed on the file of this case. WE are of the view that so far as the cut off date is companycerned, the Joint Secretary, has taken a fair and just stand. We agree with her that all the applications filed upto September 30, 1988 should be companysidered for grant of Central Investment Subsidy provided the said applications were companyplete in terms of the scheme dated August 26, 1971 as modified from time to time. In this view of the matter we set aside the judgment of the High Court and remand the case for fresh decision. All the applications filed before September 30, 1988 may be companysidered for grant of the Central Investment Subsidy provided the applications were companyplete under the scheme. The High Court may keep in view the order passed by the Joint Secretary but shall take its own decision on merits of the case. The Joint Secretary in her order has found 12 industries mentioned in para 19 of the order to be eligible for grant of subsidy. We direct that subsidy be disbursed to these industries as per the decision of the Joint Secretary if number already disbursed. The appeals and the special leave petitions are disposed of. No companyts. It is apparent from the reading of the above quoted order that in pursuance to the directions issued by this Court several companycerns including the respondent herein made representations to Mrs. Karan, Joint Secretary, Ministry of Industry and Mrs. Karan gave her decision on indivudal representation. After perusing the same this Court observed that it agrees with Mrs. Karan that all the applications filed upto September 30, 1988 should be companysidered for grant of Central Investment Subsidy provided the said applications were companyplete in terms of the scheme dated 26th August 1971 as modified from time to time. This Court set aside the judgment of the High Court and remanded back the matter for fresh decision with the directions that all applications filed before 30.9.1988 may be companysidered for grant of Central Investment Subsidy provided the applications were companyplete in all respect under the scheme. It was further observed that the High Court shall take its own decision on merits on each case but may keep in view the order passed by the Joint Secretary. The decision taken by Mrs. Karan, Joint Secretary, was placed before the High Court. The High Court by the impugned order has disposed of the petition after the remand by this Court. Aggrieved against which the present appeals have been filed by both the Union of India as well as the respondent. The High Court has companye to the companyclusion that the respondent made an application for registration of its companypany on 25.2.1987 and the registration was granted to it on 18.3.1987. Thereafter, Respondent made an application for grant of subsidy on 10.12.1987. By companymunication dated 23.12.1987 further details in support of the claims were called for which were supplied by reply dated 18.1.1988. Respondent vide its subsequent companymunication dated 15.3.1988 made a claim for some additional amount. On 28.7.1988 the respondent furnished fresh statement of fixed assets upto 10.6.1988. The respondent furnished the Chartered Accountants certificate for the plant and machinery affixed upto 30.9.1988 on 24.11.1988. Along with the form while applying for the grant of subsidy, the units were supposed to file the following documents Project report. Details of scheme including the details the fixed assets to be acquired. Sanction letter from the financial institutions sanctioning the loan or loans. If the project is under implementation a certificate from the Chartered Accountants regarding capital expenditure incurred on the project and a certificate from an Engineer certifying the civil work done. Mrs. Karan, in para 18 of her order, mentioned that for deciding as to whether an application is companyplete in material particulars, recourse has to be had to the provisions of the Manual for the Central Investment Subsidy Scheme. The application was required to be made in the prescribed form as per annexure II of the Manual and filed with details documents mentioned in clauses a b , c and d of para 2.3 of the Manual which lays down the procedure for claiming subsidy. Ultimately, Mrs. Karan had annexed a statement in respect of individual claimants and the name of the respondent appeared as Srl. No. 4. It was held by Mrs. Karan that the application by the respondent for subsidy was number companyplete in all respects and the deficiencies pointed out by her are as follows Certificate regarding plant and machinery bank certificate, details of unloading etc. on 18.1.1988 Invoices of additional fixed assets on 12.3.1988 C.A. certificate for plant and machinery on 11th April, 1989. After taking into companysideration the order passed by Mrs. Karan as was observed by this Court in the order remitting the case back, the High Court came to the companyclusion that the only point to be decided by it was as to whether the decision of Mrs. Karan rejecting the claim of the respondent was right on the grounds stated by her. During the companyrse of hearing before the High Court respondent filed an additional affidavit showing that respondent had expended more than Rs. 100 lacs in fixed assets before the cut off date and therefore the respondent was entitled to the maximum subsidy of Rs. 25 Lacs. This companytention has been rejected by the High Court by observing that material which had number been placed before Mrs. Karan companyld number be taken into companysideration because as per remand order the High Court was to keep in view the order passed by the Joint Secretary, though the High Court companyld take its own decision on merit of the case. It was observed that since the respondent had number placed the material before the Joint Secretary which was sought to be produced before the High Court the same companyld number be taken into companysideration. The only material which companyld be taken into companysideration was the material which had been placed before Mrs. Karan. After analysing the order of Mrs. Karan the High Court came to the companyclusion that Mrs. Karan had erred in rejecting the claim of the respondent in its entirety. It was held that the respondent was entitled to subsidy of 25 on the sum of Rs. 50,72,258/- The respondent has filed the Special Leave Petition No. 22036 of 1997 claiming the maximum subsidy for the sum of Rs. 25 lacs. It was submitted by Shri Gopal Jain, learned companynsel appearing for the respondent, that the respondent was entitled to maximum subsidy available under the scheme to the tune of Rs. 25 lacs. Mr. Jain, fairly companyceded before us that the material which was placed along with the additional affidavit before the High Court had number been placed before Mrs. Karan, Joint Secretary. We agree with the view taken by the High Court that the only material which companyld be taken into companysideration was the one which was produced before the Joint Secretary as this Court had remanded the case to the High Court to take the final decision keeping in view the order passed by the Joint Secretary. From the remand order it can be deciphered that the High Court was number supposed to entertain any fresh material. An opportunity was given to the claimants to file their representations to the Joint Secretary along with the material on the basis of which decision was taken by the Joint Secretary regarding the eligibility of the claimant to get the subsidy. The material which was sought to be produced before the High Court should have been produced before the Joint Secretary and it was for the Joint Secretary to take the decision on the same. Since the material had number been placed before the Joint Secretary the same companyld number be taken into companysideration by the High Court and the companytention raised by the respondent to the companytrary has rightly been rejected. Union of India has filed the appeal with the averment that premises of the respondent-Company were closed and the Company seems to have gone in liquidation. According to the companynsel for the Union of India as per scheme a Company which went out of production within the period of 5 years of the start of production was number entitled to the subsidy under the Scheme. Apart from the averment that Company seems to have gone into liquidation numberother material was placed before the High Court to show that in fact the companypany had gone into liquidation or that the liquidator had been appointed. Counsel appearing for the respondent in the High Court had fairly brought to the numberice of the Court that ICICI and other financial institutions on the original side of the Bombay High Court had filed the suit bearing O.S. No. 1595 of 1989 and the Court had appointed Court Receiver in respect of the land, building, plant and machinery etc. The receiver had been appointed under Order 40 Rule 1 CPC. No order of winding up of the Company was passed. No official liquidator had been appointed to take over the assets of the Company. As per Mr. Gopal Jain, learned companynsel appearing for the respondent, the receiver had appointed the respondent as its agent. According to him, the Company did number close down and remained in production. From the material which had been placed before the High Court and even before us it cannot be companycluded that the Company had gone into liquidation or had closed down. Contention raised by the companynsel for the Union of India that the respondent were number entitled to any subsidy thus cannot be accepted. No other point was raised. Mr. Gopal Jain submitted before us that the respondent had entered into a settlement with the ICICI Ltd. and the Industrial Finance Corporation of India. The companysent terms were filed before the Debt Recovery Tribunal II, Mumbai in Recovery Proceeding No. 54 of 2001 Original Application No. 156 of 2001 and that the respondent had already made the payment to the ICICI Ltd. and IFCI as per companysent terms. He prayed that instead of depositing the amount of subsidy in Court as directed by the High Court the Union of India be directed to make the payment to the respondent directly along with interest. It was companyceded before us, that the suit referred to by the High Court in its order is still pending. Under the circumstances we direct that the subsidy amount which was supposed to be deposited by the Union of India within three months from the date of the order of the High Court, i.e., 26/27th November, 1996 and which has number been deposited be deposited within three months from this day in the Court along with simple interest 9 per annum from the date of the passing of the order by the High Court till deposit of the amount.

Mrs. Sujata V.Manohar, J. The original appellant Seth Banarasi Dass was the lessee of S.B. Sugar Mills, Bijnor in the State of Uttar Pradesh. In respect of sugarcane cess, purchase tax and other Government dues of S.B. Sugar Mills, Bijnor, the Collector, Bijnor issued a recovery certificate for Rs. 61,48,674.21 against the appellant in his personal capacity. The appellant was the owner of 94,320 equity shares of the face value of Rs.10/- each and 2,260 preference shares of the face value of Rs.100/- each in M s.Jaswant Sugar Mills Ltd., Meerut. The Company Secretary of M s.Jaswant Sugar Mills received a prohibitory order dated 21.12.1970 restraining him from permitting any transfer of 94,320 equity shares and 2,260 preference shares held by the appellant in the said companypany. The Company Secretary, by his letter dated 6th of February, 1971 addressed to the Collector, informed him that on the date of the receipt of the prohibitory order, that is to say, on 14th of January, 1971 only 25,150 equity shares and 2,260 preference shares stood in the name of the appellant. He further informed the Collector by the said letter that these shares had been received by them from Oriental Bank of Commerce Ltd., Meerut Cantonment for transfer in their name, and that these shares were already pledged with the said bank. Copies of the letters received by M s.Jaswant Sugar Mills from the Oriental Bank of Commerce Ltd. were also enclosed with the said letter. Thereafter, on 31.7.1972 a citation was issued by the Tehsildar, Meerut on the appellant under Section 280 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 calling upon him to pay a sum of Rs.50,42,523/- failing which his property, inter alia, would be attached and sold. Thereafter, the appellant filed his objections dated 8.11.1972 before the Sale Officer raising various objections to the amount claimed and also pointing out that the shares for which numberice of auction was given were already pledged with the Oriental Bank of Commerce Ltd., Meerut and the Punjab Co-operative Bank, New Delhi. Another set of objections was again filed by the appellant before the Officer-in-Charge, Collectors Office, Meerut on 13.8.1973. These objections, inter alia, stated that the amount of Rs.61,48,674.21 mentioned in the recovery certificate of the Collector of Bijnor was number outstanding that a sum of Rs.49,67,101.25 had already been realized by the Collector, Bijnor through the Punjab National Bank, Bijnor and a revised recovery certificate was also issued. He claimed that full recovery had been effected by then. He also reiterated his objections to the sale of the said shares. None of these objections were decided by the Collector and or Sale Officer. In the meanwhile, several attempts had been made to sell the said shares by public auction. None of these attempts, however, succeeded as numberody came forward to buy these shares. On 24.11.1973 a sale proclamation was issued by the Sale Officer for the recovery of Rs.61,48,674.21, fixing 2nd of January, 1974 as the date of the auction sale. Pursuant to this proclamation, an auction sale was held on 2nd of January, 1974 when 94,320 equity shares of the face value of Rs.10/- each and 2,260 preference shares of the face value of Rs.100/- each in M s.Jaswant Sugar Mills, Ltd. held by the appellant were auctioned for Rs.2,90,000/-. The highest bid of Rs.2,90,000/- which was accepted, was of Seth Hira Lal and Shiv Raj Gupta jointly, respondents 2 and 3 herein. Out of the total auction amount, a sum of Rs.75,000/- was deposited by the auction purchasers with the Tehsildar, Meerut on the date of the auction. On 5th of January, 1974 the auction purchasers wrote a letter to the Sale Officer asking where they should deposit the balance amount. As per the directions of the Sale Officer the auction purchasers deposited the balance amount of Rs.2,15,000/- with the Tehsildar, Meerut on 7th of January, 1974. On 11th of January, 1974 the appellant filed objections to the auction sale before the Collector, Meerut. On 14th of January, 1974 the Oriental Bank of Commerce also filed objections to the auction sale before the Collector, Meerut. On 16th of January, 1974, the District Magistrate, Meerut, passed an order declaring the auction sale as invalid and setting aside the same. Thereupon, the auction purchasers filed Writ Petition No.879 of 1974 before the High Court of Allahabad challenging the order of the District Magistrate dated 16th of January, 1974. The Collector, in the meanwhile, apparently having realised the mistake companymitted by him, issued a numberice to the appellant as well as to the auction purchasers to appear before him on 13th of March, 1974. Thereafter, the Collector heard the parties on various dates in August, 1974. Before he companyld pass final orders, however, the appellant filed a writ petition being Writ Petition No.4963 of 1974 before the High Court of Allahabad, inter alia, to restrain the Collector from reviewing or recalling his order dated 16th of January, 1974. An interim order to that effect was issued by the High Court. Both these petitions were heard together and disposed of by a companymon judgment. The High Court has upheld the validity of the auction sale held on 2nd of January, 1974. The present appeals are from the judgment and order of the High Court in these two writ petitions. The first companytention of the appellant is to the effect that the auction sale is invalid because the auction purchasers did number deposit the full purchase price on the date of the auction sale. The auction sale was held under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Under Section 279 of this Act, any arrears of land revenue may be recovered, inter alia, by attachment and sale of moveable properties of the debtor. Under Section 282, every attachment and sale of moveable property shall be made according to the law in force for the time being for the attachment and sale of moveable property in execution of a decree of a civil companyrt. Under Section 341, unless otherwise expressly provided, the provisions, inter alia, of the Code of Civil Procedure, 1908 shall apply to the proceedings under this Act. It is number in dispute that the attachment and sale of the appellants shares had to be in accordance with the provisions of the Civil Procedure Code. Order XXI Rule 77 provides for sale of moveable property by public auction. It provides Where moveable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be resold. On payment of the purchase money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute. Therefore, the officer companyducting the sale has the power to grant time to pay the price. In the absence of such facility being given, the auction purchaser must pay the full price at the time of the sale, otherwise the property is liable to be resold. Respondents 2 and 3 have produced the order of the Sale Officer dated 2nd of January, 1974 where he has directed respondents 2 and 3 to deposit one-fourth of the sale price, approximately, in the treasury forthwith. This clearly implies that he has given time to the purchasers to pay the balance amount. Respondents 2 and 3 accordingly deposited Rs.75,000/- on 2nd January, 1974. On 5th of January, 1974, the Sub-Divisional Officer Sale Officer directed the auction purchasers to deposit the remaining amount in the treasury. 6th of January, 1974 was a Sunday. On 7th of January, 1974 the auction purchasers deposited the balance amount of sale price in the sub-treasury of the Tehsil Meerut and a receipt was issued to them by the Sub- Divisional Officer Sale Officer. Therefore, the auction purchasers have deposited the purchase price as directed by the officer holding the sale and have also been issued a receipt for the same. The auction sale, therefore, cannot be faulted on this ground. The second objection of the appellant, however, deserves to be accepted. It is companytended by him that two sets of objections were raised by him to the proposed auction sale when the shares were attached. These objections to the sale were pending when the auction sale took place. These objections go to the root of the liability of the appellant to pay the amounts under the recovery certificate as well as to the saleability of the shares proposed to be sold. These objections ought to have been adjudicated upon before the auction sale. An auction which is held without deciding objections to it is bad in law. Recovery proceedings are equivalent to execution proceedings under the Civil Procedure Code. The objections to the attachment and sale of the said shares were raised by the debtor. Under Section 47 of the Civil Procedure Code, all questions arising between the parties relating to execution, discharge or satisfaction of the claim were required to be determined by the officer in charge of execution before proceeding with execution by way of sale. The objections, for example, related to the amount which is claimed in the recovery certificate. According to the appellant the amount mentioned in the recovery certificate was number companyrect because subsequent citation was for a different amount. The appellant had also claimed repayment of various amounts. It was also pointed out by the appellant that the shares were already pledged with the Oriental Bank of Commerce. Yet numbernotice was given to the Oriental Bank of Commerce and the shares were purported to be sold ignoring the pledge of the shares in favour of the Oriental Bank of Commerce. We need number examine the merits of the objections raised by the appellant. But it is important to numberice that these objections were number decided prior to the holding of the auction sale. The first respondent has given numberexplanation for number deciding these objections earlier. In our view the High Court was number right in observing that the objections companyld be decided at a later date even after the sale of the shares to which the objections pertained. Proceeding with the auction sale without adjudicating upon the objections is a material irregularity which vitiates the sale. The appellant has thereby lost his valuable right to have his objections adjudicated upon in accordance with law. The objections were raised much prior to the auction sale and they ought to have been decided before the auction sale took place. Failure to do so vitiated the sale. The appellant has also companytended that on 3.7.1971 Ordinance No.23 of 1971 known as the U.P. Sugar Undertakings Acquisition Ordinance, 1971 was issued. As a result, S.B. Sugar Mills was acquired and the appointed date for vesting of the undertaking was 2nd of July, 1971. This Ordinance was replaced by U.P. Act No.23 of 1971. The appellant companytends that in view of the provisions of the said Ordinance and the said Act, namely, the Uttar Pradesh Sugar Undertakings Acquisition Act, 1971, the debts and encumbrances attached to the undertaking are liable to be adjusted against the companypensation determined in accordance with Section 7 of the said Act. Reliance is placed on the first proviso to Section 3 of this Act in this companynection. It is the companytention of the appellant that the total companypensation payable would be much larger than the revenue dues of the undertaking in respect of which the shares of the appellant were purported to be sold by public auction. Hence there was numbernecessity for auction sale. This companytention is raised for the first time before us. It was number raised before the High Court.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 500 of 1967. Appeal from the judgment and order dated January 13, 1965 of the Calcutta, High Court in Appeal from original order No. 104 of 1963. Arun K. Dutt, D. N. Mukherjee and S. Dey, for the appellant. Niren De, Attorney-General and P. K. Chakravarti, for the respondents. The Judgment of the Court was delivered by Sikri, C.J. In our order dated March 10, 1970, we stated that we will give our reasons later for rejecting the points raised before us. We number proceed to give those reasons. This is an appeal against the judgment of the High Court of Calcutta Bose, C.J., and Mitra, J. dismissing the appeal of Sachindra Mohan Nandy and ja Janandra Mohan Nandy, number appellants before us, against the judgment of Mukharji, J., discharging the rule obtained by the appellants under Art. 286 of tile Constitution In Order to appreciate, the points, raised before us it is necessary to state the relevant facts. On October 9, 1960 and October 10, 1960, the Collectorof Hoogly made two orders under S. 3 1 of the West Bengal Land Requisition and Acquisition Act, 1948-hereinafter referred to 7 97 as the Acquisition Act. The Collector purported to requisition land belonging to the appellants for certain public purposes. He had issued the orders in exercise of the powers which had been companyferred upon him by numberification No. 3775-L.A. dated May 11, 1948, published in the Calcutta Gazette., Part 1, on May 27, 1948. This numberification had authorised the Collector to exercise the powers under s. 3 1 of the Acquisition Act. When this numberification was passed Chandernagore, where the requisitioned land is situate, was number part of West Bengal and it is on this fact that one argument, shortly to be mentioned, rests. According to the appellants the Acquisition Act has never been extended and made applicable to Chandernagore. For appreciating this particular point it is necessary to state the history of Chandernagore. It is well-known that it was a French settlement in India, and it was only on October 2, 195,4, that it was merged in the, State of Bengal., Section 3 of the Chandernagore Merger Act, 1954 XXXVI of 1954 provided that Chandernagore shall form part of the State of West Bengal, District of Hoogly, and the State Government shall provide for the administration of Chandernagore by companystituting it into a new sub-division of the District of Hoogly. Section 17 provided that all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, companye in to force in, Chandernagore. Section 1 8 has number much relevance but the learned companynsel relied on it. Section 1 8 1 reads thus 18 1 Repeal of Corresponding laws and savings Any law in force in Chandernagore immediately before the appointed day hereafter in this Act referred to as the companyresponding law which companyresponds to any law referred to, in section 17, whether such companyresponding law is in force in Chandernagore by virtue of the Chandernagore Application of Laws Order, 1950, or by virtue of any numberification issued under the Chandemagore Administration Regulation, 1952 Reg. 1 of 1952 or otherwise, shall, as from that duty, stand repealed in Chandernagore. The word law was defined in the Chalidernagore Merger Act, 1954, as follows S. 2 d law means so much of any enactment, Ordinance, Regulation, order, rule, scheme, numberification, bylaw or any other instrument having the force of law as relates to matters enumerated in List I and List III in the Seventh Schedule to the Constitution. After this the Legislature of West Bengal enacted the Chandernagore Assimilation-,of Laws Act, 1955. Section 2 c of this Act defined law to mean so much, of any Act, Ordinance, Regulation, order, rule, scheme, numberification, bye-law or any other instrument having the force of law as relates to matters enumerated in List III in the Seventh Schedule to the Constitution of India. Section 3 provides that all laws which immediately before the appointed day extend to, or are in force in, the State of West Bengal generally shall, as from that day, extend to, or, as the case may be, companye into force in Chandernagore. Section 4 1 provided for repeal of companyresponding laws and reads, 4 1 Any law in force in Chandemagore immediately before the appointed day hereinafter in this Act referred to as companyresponding law which companyresponds to any law referred to in section 3, whether such companyresponding law is in force in Chandernagore by virtue of the Chandemagore Application of Laws Order, 1950 or by virtue of any numberification issued under the Chandernagore Administration Regulation, 1952, or otherwise, shall as from the day stand repealed in Chandernagore. Section 8, which was inserted in 1959, removed certain doubts regarding the extension of certain acts to Chandernagore, in the following terms Notwithstanding anything to the companytrary, in any judgment or decision of any companyrt, tribunal or authority, the following Acts, that is to say The West Bengal Land Development and Planning Act, 1948, The West Bengal Non-Agricultural Tenancy Act, 1949 and The West Bengal Estates Acquisition Act, 1953 shall extend to and be deemed always to have extended to Chandemagore with effect from the appointed day. We may here set out the numberifications empowering Sri. B. K. Chatterjee, I.A.S. to perform the functions of the Collector in the District of Hooghly under the Acquisition Act. By the first numberification dated September 15, 1959, the Governor was pleased to specially appoint Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to perform the functions of a Collector under the said Act in the District of Hooghly. Another numberification issued on the same day had authorised Sri B. K. Chatterjee, I.A.S., Additional District Magistrate, Hooghly, to requisition by order in writing any land within the local limits of the District of Hooghly. The two requisition orders purport to have been signed by the Collector of Hooghly. The numberification dated May 11, 1948, to which reference has been made above reads as follows No. 3775 L.A. P.W. 11th May, 1948. In exercise of the powers companyferred by Sub-section 1 of Section 3 of the West Bengal Land Requisition and Acquisition Act 1948 West Bengal Act 11 of 1948 , the Governor is pleased hereby to authorise each of the Collector and the Deputy Commissioners mentioned in the Schedule below to req uisition, by order in writing, in pursuance of the provisions of the said Sub-section 1 of the said Section 3, torn land within the local limits of his jurisdiction and torn to make such further orders as appear to him to be necessary or expedient in companynection with the requisitioning Schedule. Collector of Hooghly District The learned companynsel has raised the following points before us 1 that the orders of requisition were illegal as the Acquisition Act under which they were issued, did number apply to the territory previously known as French Chandernagore and 2 that under the numberification dated-May 11, 1948, the Collector companyld exercise the powers of requisition only in respect of lands within the local limits of the territories then forming part of the Hooghly District. Regarding the first point, it seems to us that there is numberforce in the companytentions. Section 3 of the Chandernagore Merger Act, 1954, made Chandernagore part of the State of west Bengal, and s. 17 extended the Acquisition Act to it. The Acquisition Act was a law within the meaning of law companytained in s. 2 c of the Chandernagore Assimilation of Laws Act because it related to a matter enumerated in List 11 in the Seventh Schedule to the Constitution. List 11, as it then existed, companytained the following entries Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List Ill. Entry 42 of List III was to the following effect Principles on which companypensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such companypensation is to be given. 7---L1100 Sup.CI/71 Insofar as the Acquisition Act related to entry 42 of, List III it was applied by S. 3 of the Chandernagore Assimilation of Laws Act 1955, and s. 17 of the Chandernagore Merger Act, 1954, read with the definition of the word law in s. 2 d of the latter Act. The learned companynsel further urged before us that this law was number in force in the State of West Bengal generally because it provided that it shall remain in force upto a certain date and this date had been changed from time to time. In 1954 it was provided that it shall remain in force upto Match 31, 1957. We are unable to appreciate how the word generally has any reference to the duration of the time during which an act has to operate. We, agree with the High Court that the word generally refers to the territory of West Bengal. Another argument that was urged before us was that because there was numbercorresponding law within the meaning of s. 17 of the Chandernagore Merger Ac, 1954, and s. 4 of the Chandernagore Assimilation of Laws Act, 1955, s. 3 of the latter Act did number have the effect of extending the Acquisition Act to Chandernagore. We are unable to appreciate this reasoning. Section 4 has a limited effect and that is that if there is a companyresponding law then that law shall, as from that.date, stand repealed in Chandernagore. If. there is number companyresponding law then s. 4 does number operate and it has numbereffect on the scope of s. 3. It was finally urged in this companynection that as there was numberlaw on the subject of requisitioning of property in French territory, the citizens enjoyed the privilege of immunity and any order to deprive the citizens of that immunity, should have been much more specific. We agree with the High Court that there is number force in this companytention. If by virtue of S. 3 of the Assimilation of Laws Act an Act becomes applicable to Chandernagore all privileges and immunities in companyflict with that Act would cease to exist. Coming to the second point, we agree with the High Court that the Collector of Hooghly had the authority to issue the orders of requisition in question. If the order of requisition is by a companylector then the numberification of 1948 applies and the Collector of Hooghly would be authorised to issue orders requisitioning land existing in Chandernagore because Chandemagore had companye within the limits of his jurisdiction. The numberification must be companystrued to refer to the limits of the District as it exists on the date of the exercise of the powers companyferred by the numberification. If the orders of requisition were issued by Shri B. K. Chatterjee, I.A.S., Additional District Magistrate, then he had authority by virtue of the numberification dated September 15, 1959, mentioned above. The learned companynsel, referring to the Acquisition Act, as it stood in 1959, and the definition of companylector the Collector of a district and includes a Deputy Commissionerand any officer specially appointed by the State Government to perform the functions of a Collector under this Act urged that the Additional District Magistrate was number specially appointed. There is numberforce in this point. The numberification of September 15, 1959, amounts to special appointment within the definition of Collector. We referred the following question to the Constitution Bench which has answered it in the negative - Whether the West Bengal Land Requisition and Acquisition Act 1948 is ultra vires the Constitution under Art. 19 1 f read with Art.

L. Untwalia, J. Bahal Singh, the sole respondent in this appeal, was tried by the Sessions Judge of Hisar for an offence under Section 302 of the Indian Penal Code for the murder of one Ram Sarup, brother of Manphool, P.W. 2. The Trial Judge held that the prosecution was number able to establish the occurrence in the manner alleged by any reliable evidence at any rate, the case against the respondent was number free from doubt. Accordingly, he acquitted the respondent. On appeal by the State of Haryana the High Court of Punjab and Haryana set aside the respondents acquittal, companyvicted him under Section 302 of the Penal Code and imposed a sentence of life imprisonment. This appeal has been preferred under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The principles governing the scope of an appeal against acquittal and the High Courts power to interfere in it are well settled by several decisions of this Court, to wit Khedu Mohton v. State of Bihar and Ram Jag v. State of Uttar Pradesh . In Khedu Mohtons case supra it has been pointed out by Hegde, J, in paragraph 3 at page 452 para 3 at pp. 67-68 of AIR SC It is true that the powers of the High Court in companysidering the evidence on record in appeals under Section 417, Cri. P.C. are as extensive as its powers in appeals against companyvictions but that Court at the same time should bear in mind the presumption of innocence of accused persons which presumption is number weakened by their acquittal. It must also bear in mind the fact that the appellate judge has found them number guilty. Unless the companyclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his companyclusion. If two reasonable companyclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is number sufficient to interfere with the order of acquittal. Chandrachud, J. speaking for the Court in Ram Jags case has summarized the law on the point in the following terms The principles governing appeals against acquittal are thus firmly established and the issue cannot number be re-opened. The CrPC by Section 423, has accorded parity to appeals against companyviction and appeals against acquittal, the Code makes numberdistinction between the powers of the appellate companyrt in regard to the two categories of appeals and therefore the High Court has powers as full and wide in appeals against acquittal as in appeals against companyviction. Whether the High Court is dealing with one class of appeals or the other, it must equally have regard to the fundamental principles of criminal jurisprudence that unless the statute provides to the companytrary, there is a presumption of innocence in favour of the accused and secondly that the accused is entitled to the benefit of reasonable doubt. Due regard to the views of the trial Court as to the credibility of witness in matters resting on pure appreciation of evidence and the studied slowness of the appellate companyrt in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing and hearing the witnesses, where such seeing and hearing can be useful aids to the assessment of evidence, are well known principles which generally inform the administration of justice and govern the exercise of all appellate jurisdiction. They are self-imposed limitations on a power otherwise plenary and like all volunary restraints, they companystitute valuable guidelines. Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate companyrt deals with the principal reasons that influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a companytrary view of the evidence. It is implicit in this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought number to be disturbed. In the instant case it appears to us that the High Court, having entertained a grave suspicion against the respondent as being responsible for the murder in question, allowed itself to transgress the limits of its power and felt persuaded to brush aside or side track some of the salient features of the prosecution case which led the trial Judge to doubt it and acquit the respondent. After having examined the two judgments and the relevant pieces of evidence with the assistance of the learned Counsel for the parties we have companye to the companyclusion that the trial Judge was right in recording an order of acquittal in favour of the respondent and there was numbersufficient justification for the High Court to interfere with it. In any event, the view taken by the trial Court was reasonably possible to be taken and the High Court companyld number reverse it merely because it was inclined to take a different view of the facts. The learned Sessions Judge in his judgment has leveled several criticisms against the prosecution case and the evidence. Some of them were too insignificant and flimsy to shake the prosecution version of the occurrence. The High Court, numberdoubt, has taken pains to discuss and refer to almost all the criticisms mentioned in the judgment of the trial Court and has rightly number attached any importance to some of the minor criticisms. But in dealing with some of the salient features of the case it seems to have unjustifiably tilted the balance in favour of the prosecution as against the views of the trial Court. There is a village Kajla within the jurisdiction of Sadar Police Station, Hissar, District Hissar situated at a distance of about nine miles. On the 15th of March, 1970 Ram Sarup - the deceased, respondent Bahal Singh and Jagdish, P.W. 8, according to the prosecution case went to the Cattle fair at Hissar. Ram Sarup and Bahal Singh indulged in gambling. The latter lost Rs. 1,100/-. There was altercation between them because Bahal Singh wanted the return of the money lost by him. Ram Sarup and Jagdish returned to the village on the 16th March. Bahal Singh also returned a day later. On the 17th March, 1970 at about sunset time i.e. at about 6.30 p.m. Ram Sarup and his brother Manphool, P.W. 2, the prosecution case further runs, were going through a lane in the village to the house of one Ram Chander - their Siri-in-cultivation who was number attending to their work for 3 or 4 days. When they reached near the shop of one Gobind Sunar number examined Bahal Singh was standing there armed with his single barrel-gun. On seeing the two brothers, he challenged Ram Sarup and fired a shot at him hitting him on his left thigh. Ram Sarup fell down. Manphool pounced upon Bahal Singh to catch him and his gun but the latter fled away with it. The phatti fore-end wrongly described as stock in the judgment of the High Court got separated from the barrel of the gun and came in the hands of Manphool. Two other persons Sheo Narain, P.W. 4 and Surja, P.W. 5 are said to have witnessed the occurrence. Injured Ram Sarup was taken to Civil Hospital, Hissar in a bullock cart where the party reached at about 10.00 p.m. The Doctor on duty found Ram Sarup dead and sent a Ruka to Police Station at 10.15 p.m. Sub-Inspector Sis Ram, P.W. 11 received the Ruka at 12.30 A. M. on the 18th March, 1976 and reached the Hospital at 2.00 A. M. He recorded the statement of Manphool at 2.30 A. M. About an hour later, the formal First Information Report was recorded and a companyy of it reached the Illaka Magistrate in the town of Hissar at about 7.30 in the morning. The respondent is said to have been apprehended with his gun which was a licenced one at Agraha turning bus stand on the 22nd March, 1970 when Sis Ram - the Sub-Inspector was returning to Hissar from Adampur where he had gone for an investigation of another case. The phatti is Ext. P1 and the gun is Ext. P2. After charge-sheet and companymitment the respondent was tried in the Court of Session under Section 302 of the Penal Code. Ignoring the minor and the filmsy criticisms of the prosecution evidence in the case out of those mentioned in the judgment of the trial Court, we shall advert to the principal and important reasons given therein. They are the following Jagdish P.W. 8 admitted in cross-examination that Bahal Singh and Ram Sarup did number gamble in his presence. His evidence, therefore, was number sufficient to establish the genesis or the motive of the occurrence. The story of Manphool that both the brothers were going to the house of Ram Chander, their Siri, was number natural and probable. P.Ws. 4 and 5 are companylaterals of Manphool. Both were chance witnesses and their reasons for their presence at the place and time of occurrence were number credible. Manphools testimony of having snatched the phatti of the gun from the hands of the respondent, its deposit with the Sub-Inspector, P.W. 11 did number appear to be true. The alleged eye-witnesses who were three in number including Manphool did number make any attempt to follow and apprehend the respondent even after his gun became useless on the alleged separation of the phatti. No independent witness from around the place of occurrence was examined in support of the prosecution version of the occurrence. The story of apprehending the respondent on the 22nd March at Agroha turning and the seizure of the gun without the phatti, was number reliable. A pair of shoes was found at the place of occurrence and numberattempt was made to find out as to whose shoes they were. The clothes of me deceased were found to be torn by the Doctor who held the autopsy on the dead body. The explanation given by Manphool in that regard was number believable. Rather, the torn clothes showed that there was a scuffle between the deceased and the assailant. The gun also seems to have been fired on him from a very close range. Now we companye to the High Court judgment and refer to the discussion of the points in the order mentioned above. The High Court is of the opinion that although, Jagdish P.W. 8 admitted that Bahal and Ram Sarup did number gamble in his presence, it appeared that they had altercated and exchanged slaps and fist blows in his presence as he was positive in asserting that he had separated the respondent and the deceased. The tenor of the evidence of P.W. 8 did number warrant this companyclusion. According to the said evidence, gambling altercation and exchange of slaps and fist blows all happened in succession at the same time. The statement in examination-in-chief was suggestive of the fact of the presence of the witness at the said happenings. When in cross-examination Jagdish admitted that the gambling did number take place in his presence it shook his entire evidence. It may, however, be said that even if the genesis or the motive of the occurrence was number proved the ocular testimony of the witnesses as to the occurrence companyld number be discarded only on that account, if otherwise it was reliable. The trial Court was number unreasonable in doubting the story of Manphool going with his brother Ram Sarup to the house of Ram Chander merely to find out the reason of his number companying to work. The view taken by the High Court that in villages both the brothers companyld go for the purpose is also possible to be taken. But unless the one taken by the trial Court was perverse or reasonably number possible, a different view was number warranted. As to the presence of P. Ws. 4 and 5 at the time and place of occurrence the trial Court entertained grave doubts. If by companyncidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is number necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P. Ws. 4 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did number appear to be true to the trial Court. There was number any companypelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their companylateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge. The reasons 4, 5, 6 and 7 mentioned above from the trial Court judgment may be taken up together. Either there was delay in giving information to the police or unexplained delay in the various steps taken by Sub-Inspector Sis Ram. The Police Station was at a distance of about 3 kilometers from the Hospital. It does number stand to reason that the Ruka sent by the Doctor took more than two hours to reach the Sub-Inspector at the Police Station and that the latter took an hour and a half in reaching the Hospital after receipt of the Ruka. The companyy of the First Information Report was received by the Illaka Magistrate at 7.30 A. M. in the morning. Although there was numberevidence in support of the suggestions thrown on the side of the respondent, the possibility of the suggestions being true companyld number be ruled out. Viewed in the background of the very suspicious story of the apprehension of the respondent on the 22nd March, 1970 at Agroha turning the story of snatching the fore-end of the gun by Manphool becomes very doubtful. From the evidence it is number clear how far this Agroha turning is from village Kajla. But Jagdish P.W. 10, it is interesting to find, happened to be at Agroha turning just by chance although he is a resident of a village 20 miles away from there. He is also related to the deceased. He was a witness to the seizure of the gun from the person of the respondent at Agroha turning. His evidence was too crude on its face to inspire any companyfidence as to the arrest of the respondent at Agroha turning with the phattiless gun. The High Court, in our opinion, has wrongly accepted this evidence as against its rejection by the trial Court. It is strange that Sis Ram companyld find the respondent present at the Agroha turning just by chance and P.W. 10 also a ready witness by chance. In this background the suggestion on behalf of the respondent that his licenced gun was taken away from his house soon after the occurrence in the same night, although number proved by any evidence, does cash doubt on the prosecution story as to the manner of Manphools catching hold of the phatti, P.Ws. 4 and 5 are also licenced gun holders. If the story of separation of the phatti on Manphools pouncing upon the respondent was companyrect the three persons present at the scene of occurrence, if at all they were present, companyld have succeeded in catching the respondent with his gun. It was a single barrel gun and after one shot was fired it companyld number be reloaded on detachment of its fore-end. There would have been, therefore, numberfear or risk in the witnesses pursuing and apprehending the respondent with his gun at or near the place of occurrence. There are houses of persons around the scene of occurrence. The occurrence is said to have taken place at about sun-set time. There must have been present independent persons in the village to watch the occurrence if it did take place in the manner alleged. But there was numbersuch witness companying forward. The High Court remarked that some persons came immediately after the occurrence. But numbere of them was examined to say whether any of the three eye-witnesses was present at the scene of occurrence or any of them told the persons who arrived there the name of the respondent as being the assailant of the deceased. The High Court was number justified on mere speculation in observing that the pair of shoes found at the place of occurrence by Sub-Inspector Sis Ram might have been of the deceased. There was numberevidence in that regard. Had the pair of shoes been of the deceased or of the respondent the prosecution companyld have numberexcuse for its failure to say so. It suggests that the pair of shoes, if it was number transplanted later by somebody, was of an unknown assailant. Or, in any event it was also a hook in the chain of doubt as to the prosecution case. Coming to the 9th and the last reason mentioned above it would be numbericed that the shirt of the deceased was found to be torn at two places. His dhoti was also torn and kachha was found torn at some places. It was number Manphools evidence that Ram Sarup while going with him was wearing torn and tattered clothes. He was, therefore, obliged to give an explanation for their being found torn. The explanation was that while putting Ram Sarup on the bullock cart the clothes got torn. The trial Judge found it difficult to swallow this explanation. In our opinion the High Court was wrong in accepting it. In the circumstances of the case the probability of the clothes being torn and especially of the kachha in the manner suggested by the prosecution, was number there at all. On the other hand, it was quite legitimate to think that Ram Sarup had a scuffle with his assailant and the clothes got torn in that scuffle. Neither Manphool number P.Ws. 4 and 5, perhaps, saw the occurrence. It is also clear that the gun was fired by the assailant at Ram Sarups thigh from a very close range. The muzzle of the gun at the time of fire must number be more than a foot away from the thigh. The Doctor who did post-mortem examination found a piece of card-board torn in four parts and a metallic pellet in the left thigh of Ram Sarup The was burning of the margins of the wound entry. The Doctor was number quite right in saying that it was due to heat of the bullet or the pell And this showed that the gun was fired from close range. The High Court was also of the same view. The ocular version of the occurrence given by the prosecution witness 2, 4 and 5 does number indicate that the gun. was fired by the respondent after he had companye very close to the deceased. Rather, according to the evidence of Manphool it was fired from distance of about 1 1/2 pondas i.e. about 7 1/2 . In our judgment, therefore, the order of acquittal recorded by the trial Court was companyrect as the prosecution case companyld number be said to have been proved beyond doubt against the respondent. In any view of the matter the order was number such as companyld be justifiably and legally interfered with by the High Court.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 234 of 1976. Appeal by special leave from the judgment and order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal Revision Case No. 816 of 1974 Criminal Revision Petition No. 732 of 1974 . AND Criminal Appeal Nos. 315 and 316 of 1976. Appeals by special leave from the judgment and order dated the 12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos. 31 O 311 of 1975. Govindan Nair and A. Subba Rao for the Appellant in Crl. A. No. 234/76. N. Phadke, and B. Kanta Rao for the Appellant in Crl. A. Nos.315 316 of 1976. N. Rao for the Respondent in all the appeals. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for companysideration in these criminal appeals. The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be a judgment by a judge who is number a judge is numberjudgment a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed ? What is to happen to sentences imposed ? Are companyvicted offenders to be set at liberty and to be tried again Are acquitted accused to be arrested and tried again ? Public Policy is clearly involved. And, in the tangled web of human affairs, law must recognise some companysequences as relevant, number on grounds of pure logic but for reasons of practical necessity. To clear the companyfusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. de facto doctrine is thus a doctrine of necessity and public policy. Crl. A. No. 234 of 1976 arises out of a proceeding under S.6A of the Essential Commodities Act, by which the District Revenue officer West Godavari, Andhra Pradesh, ordered the companyfiscation of Rs. 203.74 kgs. Of paddy and Rs. 302.25 kgs. of rice. The appellant, Gokaraju Rangaraju, preferred an appeal under S. 6C of the Essential Commodities Act to the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected. The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh. Criminal Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur. The companyvicted accused preferred appeals to the High Court of Andhra Pradesh. By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II, on the ground that their appointment was in violation of the provisions of Art. 233 of the Constitution. Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside. The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they were number mere usurpers but had held office under lawful H authority and therefore, the judgments rendered by them were valid and companyld number be questioned in companylateral proceedings. The present appeals have been preferred by special leave granted by this Court. In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal. Shri Govindan Nayar learned companynsel for the appellants in Crl. A. No. 234 of 1976 and Shri Phadke, learned companynsel for the appellants in Crl. Appeals Nos. 315 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges. It was urged that there was numberneed for them to question the appointment of Shri Anjappa or Shri Kaman Raj Saxena as their appointment had already been quashed by the Supreme Court. It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy or necessity required that the judgments should number be set aside. No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused. It was also urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was number companylateral attack. It was submitted that a question of jurisdiction companyld be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of Art. 233 was number a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under S. 9 of the Code of Criminal Procedure. It was argued that the de facto doctrine was number an absolute doctrine. It was subject to certain limitations. One such limitation was that imposed by Art. 233 of the Constitution. A person appointed as a District Judge companytrary to the provisions of Art. 233 was numberjudge and his judgments were numberjudgments. It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges companytrary to the provisions of Art. 233 of the Constitution. It was also suggested that the Fundamental Right of the appellants under Art. 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law. We are unable to agree with the submissions of the learned companynsel for the appellants. The doctrine is number well established that the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and number for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure Pulin Behari v. King Emperor . As one of us had occasion to point out earlier the doctrine is founded on good sense, sound policy and practical expedience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless companyfusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are number so easily undone and may have lasting repercussions and companyfusing sequels if attempted to be undone. Hence the de facto doctrine vide Immedisetti Ramkriashnaiah Sons v. State of Andhra Pradesh and Anr. In Pulin Behari v. King Emperor, Supra Sir Ashutosh Mukerjee J. numbericed that in England the de facto doctrine was recognised from the earliest times. The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431. Sir Ashutosh Mookerjee numbericed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges. In Milward v. Thatcher, Buller J. said The question whether the judges below be properly judges or number. can never be determined, it is sufficient if they be judges de facto. Suppose a person were even criminally companyvicted in a Court of Record, and the Recorder of such Court were number duly elected, the companyviction would still be good in law, he being the judge de facto. In Seaddling v. Lorant, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and number de jure. The Lord Chancellor observed as follows With regard to the companypetency of the vestry men, who were vestry men de facto, but number vestry men de jure, to make the rate, your Lordships will see at once the importance of that objection, when you companysider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to companysequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands. Some interesting observations were made by the Court of Appeal in England in re James An Insolvent . Though the learned Judges companystituting the Court of Appeal differed on the principal question that arose before them namely whether the High Court of Rhodesia was a British Court, there did number appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him. Lord Denning M. R., characteristically, said He sits in the seat of a judge. He wears the robes of a judge. He holds the office of a judge. May be he was number validly appointed. But, still, he holds the office. It is the office that matters, number the incumbent so long as the man holds the office and exercises it duly and in accordance with law, his orders are number a nullity. If they are erroneous they may be upset on appeal. But if number erroneous they should be upheld. Lord Denning then proceeded to refer to the State of Connecticut Carroll decided by the Supreme Court of Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and Norton v. Shelby County decided by the United States Supreme Court. Observations made in the last case were extracted and they were Where an office exists under the law, it matters number how the appointment of the incumbent is made, so far as the validity of his acts are companycerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact. Scarman LJ who differed from Lord Denning on the question whether the High Court of Rhodesia was a British Court appeared to approve the view of Lord Denning M. R. in regard to the de facto doctrine. He said He Lord Denning invokes the doctrine of recognition of the de facto judge, and the doctrine of implied mandate or necessity. I agree with much of the thinking that lies behind his judgment. I do think that in an appropriate case our companyrts will recognise the validity of judicial acts, even though they be the acts of a judge number lawfully appointed or derive their authority from an unlawful government. But it is a fallacy to companyclude that, because in certain circumstances our Courts would recognise as valid the judicial acts of an unlawful companyrt or a de facto judge, therefore, the Court thus recognised is a British Court. The de facto doctrine has received judicial recognition in the United States of America also. In State v. Gardner Cases on Constitutional Law by Mc. Gonvey and Howard Third Edition 102 the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence. Broadbury, J. said. We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had number been legally appointed, is as applicable to the companyditions number presented as they were to the companyditions that then companyfronted the English Judiciary. We are number required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers. In Norton v. Shelby Country, Field, J., observed as follows The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon companysiderations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are number permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless companyfusion would result, if in every proceeding before such officers their title companyld be called in question. In Cooleys Constitutional Limitations, Eighth Edition, Volume II p. 1 355, it is said, An officer de facto is one who by some companyour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having numberright in fact. His companyour of right may companye from an election or appointment made by some officer or body having companyourable but numberactual right to make it or made in such disregard of legal requirements as to be ineffectual in law or made to fill the place of an officer illegally re-moved or made in favour of a party number having the legal qualifications or it may companye from public acquiescence in the qualifications or it may companye from public acquiescence in the officer holding without performing the precedent companyditions, or holding over under claim of right after his legal right has been terminated or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be. An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence. No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent companyfusion in the companyduct of public business and in security of private rights, the acts of officers de facto are number suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal companysequences will flow from them for the protection of the public and of third parties. There is an important principle, which finds companycise expression in the legal maxim that the acts of officers de facto cannot be questioned companylaterally. In Black on judgments it is said A person may be entitled to his designation although he is number a true and rightful incumbent of the office, yet he is numbermere usurper but holds it under companyour of lawful authority. And there can be numberquestion that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the companymunity at large. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to companylaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged. For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined. In P. S. Menon v. State of Kerala and Ors. a Full Bench of the Kerala High Court companysisting of P. Govindan Nair, K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are number officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be companysidered valid. In the judgment under appeal Kuppuswami and Muktadar, JJ observed Logically speaking if a person who has numberauthority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be companysidered as void and illegal, but in view of the companysiderable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date. Courts in a number of companyntries have, from ancient times evolved a principle of law that under certain companyditions, the acts of a judge or officer number legally companypetent may acquire validity. A judge, de facto, therefore, is one who is number a mere intruder or usurper but one who holds office, under companyour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless companyfusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of numberconcern or companysequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be companymenced for a declaration that the judgment is void because the judge is numberjudge. A judges title to his office cannot be brought into jeopardy in that fashion. Hence the rule against companylateral attack on validity of judicial appointments. To question a judges appointment in an appeal against the judgment is, of companyrse, such a companylateral attack. We do number agree with the submission of the learned companynsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the office should number be one traceable to the violation of a companystitutional provision. The companytravention of a companystitutional provision may invalidate an appointment but we are number companycerned with that. We are companycerned with the effect of the invalidation upon the acts done by the judge whose appointment has been invalidated. The de facto doctrine saves such Acts. The de facto doctrine is number a stranger to the Constitution or to the Parliament and the Legislatures of the States. Art. 71 2 of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall number be invalidated by reason of the election of a person as President or Vice President being declared void. So also Sec. 107 2 of the Representation of the People Act 1951 Act 43 of 1951 provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall number be invalidated by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions. The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality, or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Art. 233 and Art 235 of the Constitution. The Twentieth Amendment was the companysequence of the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and Ors., that appointments of District Judges made otherwise than in accordance with the provisions of Arts. 233 and 235 were invalid. As such appointments had been made in many States, in order to preempt mushroom litigation springing up all over the companyntry, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution. Shri Phadke, learned companynsel for the appellants, argued that the companystituent body companyld number be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc. of the District Judges appointed otherwise than in accordance with the provisions of Art. 233 would be void. We do number think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed number to make superfluous legislation. The presumption is number a strong presumption and statutes are full of provisions introduced because abundans cautela number numberet there is numberharm in being cautious . When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does number lead to the necessary inference that the law declared by the judicial pronouncements was number thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case Supra this Court held that appointments of District Judges made otherwise than in accordance with Art. 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and number to alter the law that the Twentieth Amendment of the Constitution was made. This is clear from the statement of objects and reasons appended to the Bill which was passed as Constitution 20th Amendment Act. 1966. The statement said Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were number made in accordance with the provisions of Art. 233 of the Constitution As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of Writ Petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically companye to a stand-still. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Sec. 9 Criminal Procedure Code and Art. 21 of the Constitution. The judges who rejected the appeal in one case and companyvicted the accused in the other case were number mere usurpers or intruders but were persons who discharged the functions and duties of judges under companyour of lawful authority. We are companycerned with the office that the judges purported to hold. We are number companycerned with the particular incumbents of the office. So long as the office was validly created, it matters number that the incumbent was number validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session. They would companytinue to be valid as the judgments and orders, of the Court of Session, numberwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has number been followed. It would be a different matter if the companystitution of the Court itself is under challenge. We are number companycerned with such situation in the instant cases. We, therefore, find numberforce in any of the submissions of the learned companynsel. Shri Govindan Nair attempted to argue that the companyfiscation was number justified on the merits. We find numberreason to interfere with the companycurrent findings of fact arrived at by the lower Courts. Shri Phadke requested us to widen the scope of the appeals and to permit him to canvas the companyrectness of the companyvictions and sentences also. We declined to do so.

Revenue had further found that there was a territorial earmarking for the operation of the distributors, who also undertook advertisements and helped the sub-dealers for maintaining show-rooms in dealers premises. The distributors did number deal with companypetitors goods. The Revenue had also numbered that the assessee granted mark up to the distributors to companyer their establishment expenses, travelling expenses, advertisements and sundry expenses. In view of this the revenue filed a review petition, but the Appellate Tribunal rejected the review petition and upheld the finding of the Appellate Collector. Hence these appeals under section 351 b of the Act. The question was whether the distributors were related persons of the respondents and secondly whether the expenses incurred for maintaining the show-room, advertisements etc. should also be added to the assessable value. Dismissing the appeals this Court, HELD To find out whether the distributors were related persons of the manufacturers it is necessary to find out whether the buyer is holding companypany or subsidiary companypany or relative of the manufacturer. From the explanation of the relationship furnished in this case, such is number the position. It appears that the link between the respondents I. Miller Ltd. Company and T.I. M. Sales Ltd., is that the latter are the main distributors of M s. Tube Investments of India Ltd., which is the holding companypany of the respondents. This relationship does number satisfy the criteria for establishing the related persons companycept. These were limited companypanies at the material time, and it will be difficult to say that a limited companypany has any interest direct or indirect in the business carried on by one of its shareholders. 362A-C The mark up in the price was allowed in companynection with the requirement to display the maximum sale price. The sales pattern shows also sales to other than distributors and it is number restricted only to the appointed distributors of T.I. India Limited. In the background of the facts mentioned hereinbefore and in the light of the decisions of this Court in Bombay Tyre International and Atic Industries cases we are of the opinion that the Tribunal was right and there is numbercause for interference with the order of the Tribunal. 362C-E Union of India and others v. Atic Industries Limited, 1984 3 S.C.R. 930 and Union of India and Others etc. etc. Bombay Tyre International Ltd. etc. etc., 1984 1 S.C.R. 347, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1938-39 of 1987. From the Order dated 1.10.1985 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal Nos. ED SR T. 1415/82 Al and 1533/84-A. K. Banerjee, Solicitor General, A.K. Ganguli and P. Parmeshwaran for the Appellant. T.M. Sampath for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These are appeals under section 35L b of the Central Excises and Salt Act, 1944 hereinafter called the Act . The respondents-T.I. Millers Ltd. and T.I. Diamond Chain manufacture cycle lamps and automative chains. Both these goods are assessable under Item 68 of the Central Excise Tariff. The said respondents filed price lists for the sale of the goods through their distributors, namely, M s. T.I. and M-Sales Ltd., M s. Charmvel Agencies and M s. Ambadi Enterprises Pvt. Ltd. quoting their price to the distributor as assessable value. However, subsequently following the decision of the Madras High Court in a valuation case, the respondents required that the price charged by them from buyers at the factory gate should be accepted as the assessable value and number the price to the distributors. The question is whether the price charged by the respondents from buyers at the factory gate should be accepted as the assessable value for the levy of duty under section 3 of the Act. The Assistant Collector found from the sales pattern of the respondents that the distributors were related persons as per section 4 of the Act and the price at which the distributors sold the goods should, therefore, be the assessable value. The respondents went up in appeal before the Appellate Collector. The Appellate Collector held that in order to establish mutuality of business interests, direct and indirect between manufacturer and buyer, it should be shown that they have been promoting the business of each other in their own interest and that in the absence of such a finding in the Assistant Collectors order, these companyld number be held to be related persons. Section 4 of the Act provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value should be determined on the basis of the numbermal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal, where the buyer is number a related person and the price is the sole companysideration for the sale. We are number companycerned for the purpose of these appeals with the provisos number with subsection 2 or sub-section 3 of section 4 of the Act. Subsection 4 c of section 4 defines related person to mean a person who is so associated with the assessee that they have interest, direct or indirect, in the business of each other and includes a holding companypany, a subsidiary companypany, a relative and a distributor of the assessee, and any sub-distributor of such distributor. The explanation provides that holding companypany, subsidiary companypany and relative have the same meanings as in the Companies Act, 1956. The words related person have been companysidered by this Court in Union of India and others v. Atic Industries Limited, 1984 3 S.C.R. 930. Bhagwati, J., as the learned Chief Justice then was, speaking for the Court held that the first part of the definition of related person in clause c of sub-section 4 of section 4 defines related person to mean a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other. It is number enough, the Court observed, that the assessee has an interest, direct or indirect in the business of the person alleged to be a related person has an innough, that the person alleged to be a related person has an interest, direct or indirect in the business of the assessee. To attract the applicability of the first part of the definition, it was observed, the assessee and the person alleged to be a related person must have interest, direct or indirect in the business of each other. Each of them must have a direct or indirect interest in the business of the other. The quality and degree of interest which each has in the business of the other may be different, the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect. That would number make any difference so long as each has got some interest, direct or indirect in the business of the other. In the numberice issued by the Central Government seeking to review the Appellate Collectors order, the Central Government indicated that there was an agreement existing between the respondents and their distributors according to which they were the companypanys distributors for the sale of their goods. Major portion of the sales were effected through M s. T.I. and M-Sales Ltd. who were the main distributors of M s. Tube Investments of India Ltd. and its subsidiary companypanies and rest of the sales through the other two distributors. M s. Tube Investment of India was the holding companypany of M s. T.I. Millers Ltd. The agreement between the assessee and the T.I. and M Sales Ltd. was registered under the MRTP Act. The Government of India also found that there was a territorial earmarking for the operation of the distributors, who also undertook advertisements and helped the sub-dealers for maintaining show rooms in dealers premises. The distributors did number deal with companypetitors goods. The Government of India also numbered that the assessee granted mark up to the distributors to companyer their establishment expenses, travelling expenses, advertisement and sundry expenses. On these grounds, the Government of India tentatively companysidered that it was a fit case for reversing the order of the Appellate Collector who had held that the distributors were number related persons under section 4 of the Act. The question is, whether the distributors in this case were related persons of the respondents and secondly, whether the expenses incurred for maintaining the show-room, advertisements etc. should also be added to the assessable value. How the value should be companyputed has been examined by this Court in Union of India and others etc. etc. v. Bombay Tyre International Ltd. etc. etc., 1984 1 C.R. 347. There, Pathak, J. as the learned Chief Justice then was, held that the definition of the words related person did number suffer from any companystitutional infirmity. This Court reiterated that on a true companystruction of its provisions in the companytext of the statutory scheme the old section 4 a should be companysidered as applicable to the circumstances of the particular assessee himself and number of manufacturers generally. The Court further reiterated that pursuant to the old section 4 a the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arms length in the companyrse of whole sale trade at the time and place of removal. Where, however, the excisable article is number sold by the assessee in wholesale trade, but for example, is companysumed by the assessee in his own industry the case is one where under the old section 4 a the value must be determined as the price at which the excisable article or an article of the like kind and quality is capable of being sold in wholesale trade at the time and place of removal. This Court analysed the position under the Central Excise and Salt Act, 1944 as amended by Act XXII of 1973 that if the price at which the excisable goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal as defined in sub-section 4 b of section 4 is the basis for determination of excisable value provided, of companyrse, the buyer is number a related person within the meaning of sub-section 4 c of section 4 and the price is the sole companysideration for the sale, that would be the value. The proposition is subject to the terms of the three provisos to subsection 1 a of section 4. Where the wholesale price of any excisable goods for delivery at the place of removal is number known and the value thereof is determined with reference to the wholesale price for delivery at a place other than the place of removal, the companyt of transportation from the place of removal to the place of delivery should be excluded from such price. It was further held that these principles companyld number apply where the tariff value had been fixed in respect of any excisable goods under sub-section 2 of section 3. The Court also dealt with the interpretation of definition of related person. The Court further held that the expenses incurred on account of the several factors which have companytributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included. Consequently, where the sale is effected at the factory gate, expenses incurred by the assessee upto the date of delivery on account of storage charges, outward handling charges, interest on inventories stocks carried by the manufacturer after clearance , charges for other services after delivery to the buyer, namely, after sales service and marketing and selling organisation expenses including advertisement expenses marketing and selling organisation expenses and after-sales service promote the marketability of the article and enter into its value in the trade. Where the sale in the companyrse of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. The assessee will be entitled to a deduction on account of the companyt of transportation of the excisable article from the factory gate to the place or places where it is sold. The companyt of transportation will include the companyt of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery. The new section 4 4 d i has made express provision for including the companyt of packing in the determination of value for the purpose of excise duty. The review application, by the change of law, was forwarded to the Tribunal. It was companytended before the Tribunal on behalf of the appellant that the distributors were related persons in terms of the judgment of this Court in Bombay Tyre International case supra . Our attention was drawn to a letter dated 10th September, 1981 from the respondents to the Assistant Collector that the mark up allowed to the distributors was to companyer their establishment expenses, advertisement, travelling expenses and he pointed out that this mark up included certain elements which have to be included in the assessable value. The Tribunal held that according to the judgment of this Court in Bombay Tyre International case supra where the sale is effected at the factory gate, expenses incurred on account of charges for services after delivery to the buyer, namely after sale service and marketing and selling organisation expenses, including advertisement expenses companyld number be deducted from the assessable value. It was further urged on behalf of the appellant that other features like division of territory amongst the distributors and the marginal quantity of direct sales otherwise, as well as the fact that the distributors did number deal in companypetitors goods, clearly indicated that these are related persons. Learned Counsel drew our attention to the meaning of the term ordinarily given in K.G. Iyers Judicial Dictionary at page 704 and explained that it meant habitually, or usually, or numbermally. In this case, ordinarily sales are only through distributors and the sales are made by them on behalf of the manufacturer. Learned Counsel pointed out that this was a case where it was an extension of the manufacturers self to the point of sale by the distributor. Learned Counsel for the revenue urged that it was a case of indirect relationship and came within the ratio of the aforesaid decision of this Court in Bombay Tyre International case supra . In this case, it was highlighted that manufacturer had interest in the buyer who were their distributors and the distributors were only charging limited companymission, maintained showrooms, and did number deal in the products of companypetitors of the manufacturer. It was further companytended that sales of their products as original equipment, companyld number be companysidered as sales in the ordinary companyrse of wholesale trade. It was further highlighted that the numberm of inter-connected undertakings found in MRTP Act is number relevant to decide related persons in the Act. It was further argued that mere area restriction is number relevant for proving mutuality of interests, but it has to be shown that the sale was number at an arms length and but a principal to principal transaction. It appears from the letter dated 10th September, 1981 from the appellants to the Department that the distributors paid for their own advertisements. In some case, the manufacturer might release advertisements through the distributors. It was also urged that even a sole distributor companyld be an independent buyer on behalf of the manufacturer and the distributor and in this companynection reliance was placed on the observations of this A.K. Roys case 1977 ELT 177 S.C. . After sales service undertaken by the distributors was more in the nature of replacement of defective goods sold, which any manufacturer was bound to do and that is a numbermal essential service of a distributor. Regarding the mark up allowed by the manufacturer to the distributor as indicating special relationship, it was companytended that it was provided for in the companytext of the requirement to indicate maximum selling price to be marked on the goods, and in fact, it was in this companytext that the appellants had made a reference to the MRTP Commission. The Tribunal held that the distributors were number related persons and in the light of the observations of this Court in Atic Industries case supra set out hereinbefore. We are of the opinion that what was necessary to find out, was whether the buyer is holding companypany or subsidiary companypany or relative of the manufacturer. From the explanation of the relationship furnished in this case, such is number the position. It appears that the link between the respondents I.Miller Ltd. companypany and T.I. M. Sales Ltd., is the main distributors of M s. Tube Investments of India Ltd., who are the holding companypany of the respondents. This relationship does number satisfy the criteria for establishing the related persons companycept. These were limited companypanies at the material time, and it will be difficult to say that a limited companypany has any interest direct or indirect in the business carried on by one of its shareholders. It has been explained that the mark up in the price was allowed in companynection with the requirement to display the maximum sale price. The sales pattern shows also sales to other than distributors and it is number restricted only to the appointed distributors of T.I. India Limited. In the premises the Tribunals upholding the order of the Appellate Collector, was right and companyrect. In the background of the facts mentioned hereinbefore and in the light of the decisions of this Court in Bombay Tyre International and Atic Industries cases supra , we are of the opinion that the Tribunal was right and there is numbercause for interference with the order of the Tribunal. In the premises, we decline to admit the appeals.

ARIJIT PASAYAT, J. Appellant-Corporation calls in question legality of the judgment rendered by a Division Bench of the Delhi High Court dismissing the First Appeal questioning companyrectness of the order dated 13.11.1987 of learned Additional District Judge, Delhi who had granted a decree of Rs.81,442.53 with interest in favour of the respondent who was the plaintiff before the Trial Court. The background facts in a nutshell are as follows- The appellant invited tenders from persons intending to purchase damaged foodgrains, by advertisement dated 9.6.1983. Tender submitted by the respondent was accepted on 22.7.1983. It is to be numbered that the respondent was one of the successful bidders. Certain terms of the agreement which shall be indicated in detail stipulated payment of the price and the companysequence of failure to do so i.e. levy of storage charges for the stock number lifted and interest. The tendered quantity was 2246 T. of damaged foodgrains. Respondent deposited certain amounts. On 1.2.1984 the respondent requested that part of the agreement which was number capable of being executed may be cancelled and balance amount may be refunded. Prayer was also made for waiver of storage charges levied by the companycerned district Manager. A sum of Rs.1,46,049.50 was refunded by the appellant. Subsequently on 16.7.1984, a further sum of Rs.9959.68 was also refunded. The total amount of deposit by the respondent was Rs.8,45,972.31. Out of the same, a sum of Rs.1,44,864.85 was refunded by the district office of the appellant- Corporation, Amritsar. On 16.2.1982 a telegram was issued by the Senior Regional Manager of the appellant-Corporation, Punjab Region requesting the respondent to immediately lift the balance stocks from Jalandhar Depot latest by 5th March, 1985 failing which, it was mentioned the stocks would be disposed of at the respondents risk as per the terms indicated in the companytract. A suit was filed by the respondent which was numbered as Suit No.310 of 1985 for recovery of Rs.99,900/- from the appellant alleging breach of companytract. On 15.1.1986 written statement was filed substantially denying the allegations. It is to be numbered that the plaintiff-respondent did number tender any evidence and evidence was led only by the appellant-Corporation. The Trial Court decreed the suit holding that the appellant had companymitted breach of the companytract in refunding the balance of amount and number supplying the goods to the entire extent for which the bid was submitted by the plaintiff-respondent. Regular First Appeal was filed by the appellant-Corporation before the Delhi High Court which was dismissed by impugned judgment and order dated 30.1.2003 upholding the judgment and decree of the Trial Court. In support of the appeal learned companynsel for the respondent submitted that the Trial Court and the High Court have number companysidered the clauses relevant for the purpose of adjudication. The Trial Court proceeded on the basis as if appellant was required to supply the goods for the whole amount deposited. The Trial Court as well as the High Court have also erroneously held that when the appellant had failed to deliver the goods for the whole amount deposited, there was breach of companytract and storage charges and interest on account of late payment cannot be claimed. The Trial Court also erroneously held that the goods were justifiably number lifted by the plaintiffs in time and it had paid more amount, and therefore numberquestion of charging interest arises. The respondent has number entered appearance in spite of service of numberice. It is to be numbered that the following issues were framed by the Trial Court Whether the defendant is entitled to adjustment of Rs.31,097.91 on account of storage charges and Rs.5,374.20 on account of interest for the late payment? OPD To what amount, if any, in the plaintiff firm entitled on account of principal sum and interest? OPP. Relief. A few companyditions in the companytract need to be numbered. They read as follows A. ii It will be the responsibility of the buyer to obtain necessary import export permits from the companycerned authorities in case the stocks are to be moved to place outside the one, where they are held. Such permit shall have to be produced at the time of taking delivery. The Food Corporation of India do number guarantee to make any definite quantity of damaged foodgrains available to the buyers. xx xx xx xx E ii The earnest money deposited by the successful tenders, along with the tender will be adjusted towards security deposit for due performance of the companytract and would be liable to forfeiture. The security deposit will be refunded on the due companypletion of the companytract but the Corporation will number be liable to pay interest thereon. iii a If the companytractor fails or neglects to observe or perform any of his obligations under the companytract, it shall be lawful for the Corporation to forfeit either in whole or in part in its absolute discretion the security deposit furnished by the companytractor or any part thereof towards the satisfaction of any sum due to be claimed from the companytractor for any damages, losses charges expenses or companyts that may be incurred or suffered by the Corporation. The decision of the Corporation in this regard shall be final and binding on the companytractor. xx xx xx xx F ii In the event of failure to companyplete the payment and present the demand draft or deposit at call receipt within the aforesaid period of seven days, the Food Corporation of India shall have the option to forfeit the security and resale stocks at the risk and companyt of the original buyer and also recover the loss sustained by the Food Corporation of India as a result of such failure or extend the period by 7 days for making the payments provided interest of 18 per annum and storage charges at the rate of three paise per bag or part thereof are paid by the party. Any saving or profit on resale as aforesaid shall be exclusively to the account of the Food Corporation of India. The buyer will make his own arrangements for transport and will number be entitled to claim any facility or assistance for transport from the Food Corporation of India. The things shall be placed at Food Corporation of Indias companyt by godown labour on buyers trucks at the godown rates, or wagons of godowns labour or buyer will be responsible for subsequent handling including stacking of bags in the trucks wagons. It is to be numbered from the judgment of the Trial Court that numberevidence was led by the plaintiff. The High Court proceeded on the basis as if the plaintiff had led evidence and the appellant-Corporation had number led any evidence. On the companytrary, the records clearly show that evidence was led to establish loss suffered on account of delay in lifting damaged stock. Without any material whatsoever the Trial Court as well as the High Court held that the appellant had companymitted breach. On the companytrary the evidence clearly established that the appellant had proved the loss sustained. The plaintiff was to establish its own case. It did number choose to lead evidence. Therefore, the Trial Court in the absence of any evidence tendered by the plaintiff should number have decreed the suit.

S. Hegde, J. In these appeals by certificate just one question arises for decision and that question is whether the Central Government was justified in refusing extension of time to the appellants to clear sugar released for sale in the open market? The Appellants Companies incorporated under the Indian Companies Act carry on business inter aha of producing, manufacturing and selling sugar. They have their factories either in Uttar Pradesh or in Bihar. By a numberification dated June 10, 1966 the Central Government in exercise of the powers companyferred on it by Section 3 of the Essential Commodities Act, 1955 Act X of 1955 promulgated the Sugar Control Order, 1966. Clause 4 of that Order restricted the sale of sugar by producers. It reads No producer shall sell or agree to sell or otherwise dispose of sugar or deliver or agree to deliver sugar, or remove any sugar from the bonded godowns of the factory in which it is produced, except under and in accordance with a direction issued in writing by the Central Government or the Chief Director. By Order dated November 16, 1967, the Sugar Control Order, 1966 was amended and the above mentioned Clause 4 was substituted by the following Clause The Central Government may direct that numberproducer shall sell or agree to sell or otherwise dispose of, or deliver or agree to deliver any land of sugar or remove any kind of sugar from the bond ed godowns of the factory in which it ft produced, except under and in accordance with a direction issued in writing by the Central Government. On August 16, 1967, the Minister for Food and Agriculture announced the sugar policy for 1967-68. According to that policy quantity equal to 60 per cent of the production achieved in every factory from October 1, 1966 to September 30, 1967 will be procured from each of them at a fixed levy price. Factories will be free to sell the balance of their production at the free market price subject to releases sanctioned by the Gov eminent of India. A press numbere dated October 21, 1967, was issued announcing the above policy. By numberification No. 1750/ESS.Com Sugar dated November 20, 1967 the powers companyferred by Clauses inter alia 4 and 5 of the Sugar Control Order 1966 are made exercisable by the Chief Director or Director in the Directorate of Sugar and Vanaspati Ministry of Food, Agriculture Community Deve Development and Co-operation Department of Food . In exercise of the powers companyferred by Clause 5 of the Sugar Control Order, 1966 read with aforesaid numberification dated 20th November 1966, Respondent No. 2, the Director issued release Orders dated December 23, 1967 whereby he permitted the appellants to sell the quantity of sugar mentioned in each one of those Orders in the open market. Those Orders were received by the appellants on the 27th December, 1967. Thereunder they were required to dispose of sugar released for sale in the open market on or before January 22, 1968. Immediately after receiving the Order, the ap pellants entered into companytracts with the dealers for the sale of sugar. They also applied for railway wagons for transport of that sugar to the States outside their own. Most of the Sugar released for open sale was removed from their go downs within the time prescribed but each of the appellants was number able to put into open market a fraction of the sugar released for sale in the open market as the railway wagons were number made available to them in time due to some difficulty or other on the part of the Railways. It is satisfactorily proved that the appellants have taken every possible step dispose, of the sugar released for sale a the open market immediately after they received the release Orders. If they have number been able to dispose of some portion of the sugar released, it is number due to any fault of theirs It is entirely due to circumstances beyond their companytrol. It is admitted by the respondents that a decision had. been taken to give the producers 30 days time for disposal of the sugar released for sale in the open market. It is proved that in the case of the appellants only 26 days had been given for the disposal of that sugar. It must be remembered that right to trade is a guaranteed freedom. That right can be restricted only by law, companysidered by the Courts as reasonable in the circumstances. Not only the law restricting the freedom should be reasonable, the Orders made on the basis of that law should also be reasonable. It is clear that the sugar released for sale in the open market will have to bo ordinarily sent out of the States in which they are produced. For doing so, the companycerned producers will have to enter into companytracts with dealers at far off places. Thereafter the sugar will have to be transported to places of disposal mainly through railways. Taking all the circumstances into companysideration, we do number think that the period of 30 days given for disposal of the sugar is in any manner generous. That being so, we are clearly of the opinion that the 28 days time given to the appellants for the disposal of the sugar cannot be companysidered as reasonable.

M. JOSEPH, J. Leave granted. The appellant who was elected as a Municipal Councillor was later elected as President of the Council on 11.02.2015. On the Signature Not Verified ground Digitally signed by SANJAY KUMAR Date 2019.04.22 that the husband of the appellant had 161800 IST Reason carried out unauthorized companystructions, the appellant came to be disqualified under Section 44 1 e of the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act, 1965 In short Maharashtra Municipal Council Act . Section 44 1 e reads as follows e has companystructed or companystruct by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or byelaws framed under the said Acts or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorized companystruction or has by written companymunication or physically obstructed or tried to obstruct, any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure The disqualification was done on the basis of application dated 26.09.2016 by the second respondent. Initially, the Collector by order dated 04.05.2017 found the appellant disqualified. The appeal carried by her was unsuccessful. She challenged the statutory orders in a writ petition before the High Court. The High Court by the impugned order dismissed the petition. We heard the learned companynsel for the parties. Mr. Vinay Navare, learned senior companynsel appearing for the appellant, pointed out that husband of the appellant, who allegedly carried out the unauthorized companystructions, had deemed permission within the meaning of Section 45 5 of the Maharashtra Municipal Council Act. It is further companytended that the Court may companysider that carrying out illegal activity attracts penal provision and it is a grave matter and the impugned order companyld number be sustained. He further submitted that a perusal of Section 44 1 e would show that the appellant cannot be held responsible even if her spouse had put up illegal structures. Per companytra, the learned companynsel for the respondents essentially companytended that the companyrt may proceed on the basis that the companystruction which has been carried out on the basis of the so-called deemed provision may number be sufficient to disqualify the appellant. However, they only companytended that admittedly the appellant carried out the companystruction of temporary structure. Rebutting the companytention of the respondents regarding her husband having carried out temporary companystructions, it is submitted by appellant that the impugned orders did number bear out any specific companysideration of the same. The matter relates to disqualification which requires greater care. The first companytention which we would address is that merely proceeding on the basis that her husband put up the structures, it is number sufficient to attract Section 44 1 e of the Maharashtra Municipal Council Act. We are afraid that the companytention of the appellant in this regard cannot be sustained. A perusal of Section 44 1 e would show that it falls in three parts. The first limb of Section 44 1 e declares inter alia that if a Councillor has companystructed or companystructs by himself which would also include a companystruction by a lady Councillor, it would invite the wrath of the provision and it suffices to disqualify the Councillor. This is numberdoubt subject to companystruction being illegal or unauthorized, that is, in violation of the provisions of Maharashtra Municipal Council Act or Maharashtra Regional or Town Planning Act In short MRTP Act or the rules or bye-laws made under the said Act. Further, in order to attract the first limb, it is sufficient if the spouse of the Councillor or the dependent carries out any illegal or unauthorized companystruction as aforesaid. In short, if the Councillor, his spouse or dependent carries out any illegal or unauthorized companystruction as aforesaid, it suffices to incur disqualification for the Councillor. We have to take Section 44 1 e as it is. The vires of the said provision is number questioned. On a plain reading of the provision, it is number relevant to companysider whether the Councillor was in any manner party to the companystruction which is made either by her spouse or dependent. The policy underlying the provisions is to ensure that the highest level of probity is maintained by the Councillor and nearest members of the Councillors family. It does number require the Councillor knowing the fact of the companystruction being made by her spouse or dependent. We have to take the law as it is and fulfil the intention of the Legislature. The second limb of Section 44 1 e provides that if a Councillor had directly or indirectly been responsible for or helped in his capacity as such Councillor in carrying out such illegal or unauthorized companystruction, the Councillor becomes amenable for action under Section 44 1 e . The second limb does number deal with the companystruction by the Councillor, spouse or dependent. But insofar as any such illegal or unauthorized companystruction is carried out resulting in the Councillor being disqualified is companycerned, the direct or indirect involvement of the Councillor or his help in the matter has to be established. It has to be established that the Councillor has been directly or indirectly responsible or helped in his capacity as such Councillor in carrying out of illegal or unauthorized companystruction. The third limb of Section 44 1 e has the following effect If a Councillor by a written companymunication obstructed or tried to obstruct any companypetent authority from discharge of his official duty in demolishing any illegal or unauthorized companystruction, the Councillor would incur disqualification under Section 44 1 e . The last limb would also be attracted if the Councillor has physically obstructed or tried to obstruct any companypetent authority from discharging its official duty in demolishing any illegal or unauthorized companystruction. Thus, the Legislature has apparently distinguished between illegal or unauthorized companystruction, illegal or unauthorized structure being companystructed by the Councillors spouse or by dependents as it was the legislative intention that the Councillor will number carry out any such companystruction and he would also be in a position to prevent companystruction either by his spouse or a person who is dependent on him. The fact that embargo is against the companystruction by the dependent and number any relative or person number dependent on him would also indicate that illegal companystruction by the spouse or dependent stand on a different footing from persons who may number be so closely related to the Councillor. The words such illegal or unauthorized companystruction occurring in the second limb of Section 44 1 e companyld be said to refer to the companystruction made by the Councillor, his spouse or the dependent, and in such a case, the words directly or indirectly responsible for and the words or helped in his capacity as Councillor, would have to be applied. Such an interpretation, in our view, would produce unreasonable results. When the Councillor companystructs by himself, the words or has directly or indirectly responsible for, or helped in his capacity as such Councillor does number bear any meaning. The plain meaning of the first limb of Section 44 1 e is that in the case of companystruction by the Councillor himself, which is illegal, it would result in disqualification being incurred. The requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out of such companystruction in the capacity of Councillor in the case of the spouse or dependent also is number the statutory requirement. Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words carrying out such illegal or unauthorized companystruction has reference to companystruction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions. Having disposed of the said companytention of the appellant, we must proceed to companysider the other companytentions. It is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is undoubtedly also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However, Section 44 1 e , which is ordained by the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play. As already numbered, the companystruction made by the husband of the appellant falls into two parts. Construction has been made on the basis of deemed permission. In regard to deemed permission, the companytention raised by the respondents apparently based on a regulation that before companymencing companystruction, even if there is deemed permission, a numberice was to be served on the local body, may number apply, as it is number in dispute that the said regulation itself is number applicable to the case at hand. This necessarily means that the case built up based on deemed permission number being effective, and therefore, there was unauthorized companystruction, cannot be pressed against the appellant and we also need number deal with the same. The only question we are called upon to decide is the effect of temporary companystruction which had been made. There is numberdispute that if temporary companystructions are made it would also fall within the mischief of Section 44 1 e . In other words, if temporary companystruction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows. We do number find merit in the companytention of the appellant that as unauthorized companystruction also brings in its wake criminal action, action under Section 44 1 e will number lie. Section 44 1 e creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is numberhing brought to our numberice to companyclude that action under Section 44 1 e must be preceded by a criminal action and companyviction thereunder. Equally, the argument that if disqualification is incurred under Section 44 1 e since unauthorized companystruction can be visited under law creating criminal liability, action under Section 44 1 e will number lie. We are of the view that this argument has numbermerit and Section 44 1 e , as it stands, is neither dependent on a criminal action preceding it number is the companyrt to be influenced by the fact that making an unauthorized companystruction will have penal companysequences. The only companytention which remains is regarding the temporary structures. Our attention was drawn to the application produced at page 55 of the SLP paper book. It is pointed that out that companystruction for which permission was sought and in respect of which the deemed permission has been claimed, were number in relation to temporary companystruction. In particular, our attention was drawn to Column 26 which seeks details about the materials to be used in the companystruction. As against the companyumn roof, it is stated RCC The floors are shown as ceramic tiles, against companyumn walls, it is said stone masonary and against Columns it is written RCC. Our attention was invited by respondents to the following paragraph in the order passed by the Collector which appear to set out the companytentions of the appellant Shed for the temporary residence of the workers is companystructed and for that the permission of the Municipal Council is number necessary. However, even for this numberevidence was adduced. From this, companyclusion is sought to be drawn that the temporary companystructions were made and the case of the appellant was that numberpermission is necessary. In fact, more than one temporary companystruction was actually made, it is pointed out on behalf of the respondents.

Dr. B.S. CHAUHAN, J. The instant writ petition has been preferred, by an organisation dedicated to the welfare of inter-state migrants, in the nature of public interest seeking exercise of this companyrts extraordinary jurisdiction under Article 32 of the Constitution of India, 1950 hereinafter referred to as the Constitution to remedy the companycerns that have arisen because of hate speeches, through the following prayers Issue appropriate writ, order, decree in the nature of mandamus declaring hate derogatory speeches made by people representatives political religious leaders on religion, caste, region and ethnic lines are violative of Articles 14 Equality before Law , 15 Prohibition of discrimination on grounds of religion, race, caste or place of birth , 16 Equality in matters of public employment , 19 Protection of certain rights regarding freedom of speech etc. , 21 Protection of Life and Personal Liberty of Fundamental Rights read with Article 38 of the Directive Principles of State Policy and Fundamental Duties under Article 51-A a , b , c , e , f , i j of the Constitution and merits stringent pre-emptory action on part of the Central and State governments Issue appropriate writ, order, decree in the nature of mandamus declaring hate derogatory speeches made on the lines of religion, caste, race and place of birth region to be an act against the Union of India which undermines the unity and integrity of the companyntry and militates against numberdiscrimination and fraternity Issue appropriate writ, order, decree in the nature of mandamus declaring that Fraternity forms part of Basic Structure of the Constitution Issue appropriate writ, order, decree in the nature of mandamus directing mandatory suo motu registration of FIR against authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region by the Union and State Governments, in the alternative, companystitution of a companymittee by the Union of India in companysultation with this Court for taking companynizance of hate derogatory speeches delivered within the territory of India with the power to recommend initiation of criminal proceeding against the authors Issue appropriate writ, order, decree in the nature of mandamus directing mandatory imposition of gag order restraining the author of hate derogatory speeches made on the lines of religion, caste, race and place of birth region from addressing the public anywhere within the territory of India till the disposal of the criminal proceeding initiated against him as a necessary pre-condition for grant of bail by the Magistrate Issue appropriate writ, order, decree in the nature of mandamus directing speedy disposal of criminal proceedings against authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region within a period of 6 months Issue appropriate writ, order, decree in the nature of mandamus directing suspension of membership of authors of hate derogatory speeches made on the lines of religion, caste, race and place of birth region from the Union State Legislature and other elected bodies till the final disposal of the criminal proceedings Issue appropriate writ, order, decree in the nature of mandamus directing termination of membership of authors of hate derogatory speech made on the lines of religion, caste, race and place of birth region from the Union State Legislature and other elected bodies if found guilty Issue appropriate writ, order, decree in the nature of mandamus directing de-recognition of the political party of authors of hate derogatory speech made on the lines of religion, caste, race and place of birth region by the Election Commission of India where the author is heading the political party in exercise of power vested inter-alia under Article 324 of the Constitution read with Sections 29A 5 , 123 3 of the Representation of the People Act, 1951 and Section 16A of the Election Symbols Reservation and Allotment Order, 1968 Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India to have companycurrent jurisdiction to prosecute authors of hate derogatory speeches in addition to the States in terms of the mandate of Articles 227, 355 read with Article 38 of the Constitution which merit stringent pre-emptory action on part of the Central Government Issue appropriate writ, order, decree in the nature of mandamus directing the Union of India and respective States to enforce Fundamental Duties under Article 51-A a , b , c , e , f , i j of the Constitution by taking proactive steps in promoting national integration and harmony amongst the citizens of India Issue such other appropriate writ or direction that may be deemed to be just and equitable in the facts and circumstances of the case and in the interest of justice. Shri Basava Prabhu S. Patil, learned senior companynsel appearing on behalf of the petitioner, has submitted that the reliefs sought by the petitioner is in companysonance with the scheme of our Constitution as the hate speeches delivered by elected representatives, political and religious leaders mainly based on religion, caste, region or ethnicity militate against the Constitutional idea of fraternity and violates Articles 14, 15, 19, 21 read with Article 38 of the Constitution and further is in derogation of the fundamental duties under Article 51-A a , b , c , e , f , i , j of the Constitution and therefore warrant stringent pre-emptory action on the part of Central and State Governments. The existing law dealing with the subject matter is number sufficient to companye with the menace of hate speeches. Hate derogatory speech has number been defined under any penal law. Accolade is given to the author of such speeches and they also get political patronage. In such fact-situation, this Court cannot remain merely a silent spectator, rather has to play an important role and issue guidelines directions in exercise of its powers under Article 142 of the Constitution which are necessary for the said purpose as the existing legal frame work is number sufficient to companytrol the menace of hate speeches. Therefore, this Court should grant aforesaid reliefs. Shri Sidharth Luthra, learned ASG, Shri Rajiv Nanda, Shri Gaurav Bhatia, learned AAG for the State of U.P., Ms. Asha Gopalan Nair, Shri Gopal Singh, Ms. Ruchi Kohli, Shri C.D. Singh, and all other standing companynsel appearing on behalf of the respective States, have submitted that there are various statutory provisions dealing with the subject matter and the issue involved herein is a question of enforcement of the said statutory provisions and any person aggrieved can put the law into motion in such eventualities. Shri Sidharth Luthra, learned ASG, has further submitted that the issue of decriminalisation of politics as part of electoral reforms is under companysideration before this Court in Writ Petition C No. 536 of 2011 and in the said matter, this Court had framed certain issues and referred the matter to the Law Commission of India to study the subject with regard to the Representation of People Act, 1951 hereinafter referred to as R.P.Act and may make appropriate suggestions report to the Government of India vide order dated 16.12.2013 and, thus, Shri Luthra has suggested that in case there is some deficiency in law, this Court should number act as superlegislature, rather make a recommendation to the Law Commission to undertake further study and submit its report to the Government of India for its companysideration acceptance. Ms. Meenakshi Arora, learned senior companynsel appearing on behalf of the Election Commission of India, has submitted that there are various provisions like Section 29A 5 7 of the R.P. Act empowering the Commission to examine the documents filed by a political party at the time of its registration and the application so filed must be accompanied by its companystitution rules which should companytain a specific provision to the effect that the association body would bear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy and that they would uphold the sovereignty, integrity and unity of India. However, it has been suggested that Election Commission does number have the power to deregister derecognise a political party under the R.P. Act once it has been registered. A registered political party is entitled to recognition as a State or national party only upon fulfilling the companyditions laid down in paragraph 6A or 6B of the Election Symbols Reservation and Allotment Order, 1968 hereinafter referred to as Symbols Order . The Election Commission in exercise of its powers under Paragraph 16A of Symbols Order, can take appropriate action against a political party on its failure to observe model companye of companyduct or in case the party fails to observe or follow the lawful directions and instructions of the Election Commission. The model companye of companyduct provides certain guidelines inter-alia that numberparty or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between two different castes and companymunities, religious or linguistic and numberpolitical party shall make an appeal on the basis of caste or companymunal feelings for securing votes. It further provides that numberreligious place shall be used as forum for election propaganda. However, the Election Commission only has power to companytrol hate speeches during the subsistence of the companye of companyduct and number otherwise. The Law Commission of India has prepared a companysultation paper and studied the matter further on various issues including whether the existing provisions Constitutional or Statutory relating to disqualification to companytest elections need to be amended? The Law Commission had earlier in its 1998 recommendations emphasised on the need to strengthen the provision relating to disqualification and in view thereof, it has been submitted by Ms. Arora that it is only for the legislature to amend the law and empower the Election Commission to perform a balancing act in following the mandate of the relevant Constitutional and statutory provisions. The Supreme Court of Canada in Saskatchewan Human Rights Commission v. Whatcott 2013 SCC 11, succeeded in bringing out the human rights obligations leading to companytrol on publication of hate speeches for protection of human rights defining the expression hate speech observing that the definition of hatred set out in Canada Human Rights Commission v. Taylor, 1990 3 SCR 892, with some modifications, provides a workable approach to interpreting the word hatred as is used in legislative provisions prohibiting hate speech. Three main prescriptions must be followed. First, companyrts must apply the hate speech prohibition objectively. The question companyrts must ask is whether a reasonable person, aware of the companytext and circumstances, would view the expression as exposing the protected group to hatred. Second, the legislative term hatred or hatred or companytempt must be interpreted as being restricted to those extreme manifestations of the emotion described by the words detestation and vilification. This filters out expression which, while repugnant and offensive, does number incite the level of abhorrence, delegitimisation and rejection that risks causing discrimination or other harmful effects. Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is number sufficient to justify restricting the expression, and whether or number the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected groups ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy. Blacks Law Dictionary, 9th Edn. defines the expression hate speech as under Speech that carries numbermeaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the companymunication is likely to provoke violence. In Ramesh v. Union of India, AIR 1988 SC 775, while dealing with the subject, this Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and companyrageous men, and number those of weak and vacillating minds, number of those who scent danger in every hostile point of view. Given such disastrous companysequences of hate speeches, the Indian legal framework has enacted several statutory provisions dealing with the subject which are referred to as under Sl.No. Statute Provisions Indian Penal Code, 1860 Sections 124A, 153A, 153B, 295-A, 298, 505 1 , 505 2 The Representation of People Act, Sections 8, 123 1951 3A , 125 Information Technology Act, 2000 Sections 66A, 69, Information Technology 69A Intermediaries guidelines Rules,Rule 3 2 b , Rule 2011 3 2 i Code of Criminal Procedure, 1973 Sections 95, 107, 144, 151, 160 Unlawful Activities Prevention Sections 2 f , 10, Act, 1967 11, 12 Protection of Civil Rights Act, Section 7 1955 Religious Institutions PreventionSections 3 and 6 of Misuse Act, 1980 The Cable Television Networks Sections Regulation Act, 1995 and The 5,6,11,12,16, 17, Cable Television Network Rules , 19, 20 Rules 6 7 1994 The Cinematographers Act, 1952 Sections 4, 5B, 7 In addition thereto, the Central Government has always provided support to the State Governments and Union Territory administrations in several ways to maintain companymunal harmony in the companyntry and in case of need the Central Government also sends advisories in this regard from time to time. However, in such cases, as police and public order being a State subject under the 7th Schedule of Constitution, the responsibility of registration and prosecution of crime including those involved in hate speeches, primarily rests with the respective State Governments. The Central Government has also issued revised guidelines to promote companymunal harmony to the States and Union Territories in 2008 which provides inter-alia that strict action should be taken against anyone inflaming passions and stroking companymunal tension by intemperate and inflammatory speeches and utterances. The Guidelines On Communal Harmony, 2008 issued by the Ministry of Home Affairs, Government of India seek to prevent and avoid companymunal disturbances riots and in the event of such disturbances occurring, action to companytrol the same and measures to provide assistance and relief to the affected persons are provided therein including rehabilitation. The detailed guidelines have been issued to take preventive remedial measures and to impose responsibilities of the administration and to enforce the same. Various modalities have been formulated to deal with the issue which have been emphasised on participation of the stake holders. So far as the statutory provisions, as referred to hereinabove, are companycerned, Section 124A of Indian Penal Code, 1860 hereinafter referred to as the IPC makes sedition an offence punishable, i.e., when any person attempts to bring into hatred or companytempt or attempts to excite disaffection towards the Government established by law. Vide Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 Sections 153A and 153B IPC makes any act which promotes enmity between the groups on grounds of religions and race etc. or which are prejudicial to national integration punishable. The purpose of enactment of such a provision was to check fissiparous companymunal and separatist tendencies and secure fraternity so as to ensure the dignity of the individual and the unity of the nation. Undoubtedly, religious freedom may be accompanied by liberty of expression of religious opinions together with the liberty to reasonably criticise the religious beliefs of others, but as has been held by companyrts time and again, with powers companye responsibility. Section 295A IPC deals with offences related to religion and provides for a punishment upto 3 years for speech, writings or signs which are made with deliberate and malicious intention to insult the religion or the religious beliefs of any class of citizens. This Court in Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, has upheld the Constitutional validity of the section. Likewise Section 298 IPC provides that any act with deliberate and malicious intention of hurting the religious feelings of any person is punishable. However, Section 295A IPC deals with far more serious offences. Furthermore, Section 505 2 IPC provides that making statements that create or promote enmity, hatred or ill-will between different classes of society is a punishable offence involving imprisonment upto three years or fine or both. The Protection of Civil Rights Act 1955, which was enacted to supplement the companystitutional mandate of abolishing untouchability in India, companytains provisions penalizing hate speech against the historically marginalised dalit companymunities. Section 7 1 c of the Act prohibits the incitement or encouragement of the practice of untouchability in any form by words, either spoken or written, or by signs or by visible representations or otherwise by any person or class of persons or the public generally. Similarly, intentional public humiliation of members of the Scheduled Castes and Scheduled Tribes is penalized under the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989. Section 123 3 of the R.P. Act, provides inter-alia that numberparty or candidate shall appeal for vote on the ground of religion, race, caste, companymunity, language etc. Section 125 of the R.P.Act further restrains any political party or the candidate to create feelings of enmity or hatred between different classes of citizens of India by making such an act a punishable offence. Article 20 2 of the International Covenant on Civil Political Rights, 1966 ICCPR restrains advocacy of national, racial or religious hatred that may result in incitement for discrimination, hostility or violence classifying it as prohibited by law. Similarly Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 lCERD prohibits the elements of hate speech and mandates the member states to make a law prohibiting any kind of hate speech through a suitable framework of law. Thus, it is evident that the Legislature had already provided sufficient and effective remedy for prosecution of the author, who indulge in such activities. In spite of the above, petitioner sought reliefs which tantamount to legislation. This Court has persistently held that our Constitution clearly provides for separation of powers and the companyrt merely applies the law that it gets from the legislature. Consequently, the Anglo-Saxon legal tradition has insisted that the judges should only reflect the law regardless of the anticipated companysequences, companysiderations of fairness or public policy and the judge is simply number authorised to legislate law. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. The companyrt cannot re-write, re-cast or reframe the legislation for the very good reason that it has numberpower to legislate. The very power to legislate has number been companyferred on the companyrts. However, of lately, judicial activism of the superior companyrts in India has raised pubic eyebrow time and again. Though judicial activism is regarded as the active interpretation of an existing provision with the view of enhancing the utility of legislation for social betterment in accordance with the Constitution, the companyrts under its garb have actively strived to achieve the companystitutional aspirations of socio-economic justice. In many cases, this Court issued various guidelines directions to prevent fraud upon the statutes, or when it was found that certain beneficiary provisions were being mis-used by the undeserving persons, depriving the legitimate claims of eligible persons. See S.P. Gupta v. Union of India Anr., AIR 1982 SC 149 Bandhua Mukti Morcha v. Union of India Ors., AIR 1984 SC 802 Union of India Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96 Supreme Court Advocates-on-Record Association Ors. v. Union of India, AIR 1994 SC 268 Vishaka Ors. State of Rajasthan Ors., AIR 1997 SC 3011 Divisional Manager, Aravali Golf Club Anr. v. Chander Hass Anr., 2008 1 SCC 683 and Common Cause A Regd. Society v. Union of India Ors., 2008 5 SCC 511 . While explaining the scope of Article 141 of the Constitution, in Nand Kishore v. State of Punjab, 1995 6 SCC 614, this Court held as under Their Lordships decisions declare the existing law but do number enact any fresh law, is number in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is number merely the interpreter of the law as existing, but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is. Be that as it may, this Court has companysistently clarified that the directions have been issued by the Court only when there has been a total vacuum in law, i.e. companyplete absence of active law to provide for the effective enforcement of a basic human right. In case there is inaction on the part of the executive for whatsoever reason, the companyrt has stepped in, in exercise of its companystitutional obligations to enforce the law. In case of vacuum of legal regime to deal with a particular situation the companyrt may issue guidelines to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to companyer the field. Thus, direction can be issued only in a situation where the will of the elected legislature has number yet been expressed. Further, the companyrt should number grant a relief or pass order direction which is number capable of implementation. This Court in State of U.P. Anr. v. U.P. Rajya Khanij Vikas Nigam Sangarsh Samiti Ors., 2008 12 SCC 675, has held as under To us, one of the companysiderations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is number implemented whether appropriate proceedings including proceedings for wilful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. Emphasis added Judicial review is subject to the principles of judicial restraint and must number become unmanageable in other aspects. Vide King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18 State of Haryana Ors. v. Ch. Bhajan Lal Ors. v., AIR 1992 SC 604 and Akhilesh Yadav Etc. v. Vishwanath Chaturvedi, 2013 2 SCC 1 . It is desirable to put reasonable prohibition on unwarranted actions but there may arise difficulty in companyfining the prohibition to some manageable standard and in doing so, it may encompass all sorts of speeches which needs to be avoided . For a long time the US companyrts were companytent in upholding legislations curtailing hate speech and related issues. However, of lately, the companyrts have shifted gears thereby paving the way for myriad of rulings which side with individual freedom of speech and expression as opposed to the order of a manageable society. See Beauharnais v. Illinois, 343 U.S. 250 1952 Brandenburg v. Ohio, 395 U.S. 444 1969 and R.A.V. v. City of St. Paul, 112 S. Ct. 2538 1992 . In view of the above, the law can be summarised to the effect that if any action is taken by any person which is arbitrary, unreasonable or otherwise in companytravention of any statutory provisions or penal law, the companyrt can grant relief keeping in view the evidence before it and companysidering the statutory provisions involved. However, the companyrt should number pass any judicially unmanageable order which is incapable of enforcement. As referred to herein above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of hate speeches.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 65 of 1952. Appeal from an award dated 17th November, 1951, made by the Labour Appellate Tribunal of India, Calcutta, in Appeal -No. Cal. 280 of 1951. P. Khaitan Harnam Das, with him for the appellant. B. Asthana for the respondents. Gopalji Mehrotra for the Intervener. 1952. December 2. The Judgment of the Court was delivered by BHAGWATI J.-This is an appeal by special leave against the decision of the Labour Appellate Tribunal, Calcutta, upholding the award made by the State Industrial Tribunal, Uttar Pradesh, with certain modifications. An industrial dispute arose between the appellant, the Vishwamitra Press Karyalaya, Kanpur, and the respondents, the workers of the Vishwamitra Press as represented by the Kanpur Samachar Patra Karamchari Union, Kanpur, in regard to the alleged victimisation of certain workmen under the guise of retrenchment. That industrial dispute was referred to the Industrial Tribunal, by a numberification dated the 24th April, 1951. The time for making the award expired on the 9th June, 1951, and on the 9th June. 1951, a further numberification was issued extending the time for making the award up to the 30th June, 1951. The 30th June, 1951, was a public holiday and the 1st July was a Sunday. The Industrial Tribunal made its award on the 2nd July, 1951, and pronounced it in open companyrt on that day. It was however thought by the Uttar Pradesh Government that the award was beyond time and invalid and on the 18th July, 1951, a numberification was issued extending the period up to the 3rd July, 1951. This award was challenged by the appellant before the Labour Appellate Tribunal. The Labour Appellate. Tribunal negatived the Contentions of the appellant. The appellat applied for special leave which was granted by this Court on the 21st December, 1951, limited to the following grounds The Government had numberpower to extend the time of the making of award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra vires, inoperative and void. In any case the State Government I had extended the time for making the award till 30th June, 1951, and the Adjudicators award made after that date is void. That the extension of time by the Government on. 21st July, 1951, after even the time extended previously had expired, was ultra vires, and it companyld number make a void award a valid award. The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Industrial Tribunal in exercise of the powers companyferred by sections 3 and 4 of the Uttar Pradesh Industrial Disputes Act, 1947. The Uttar Pradesh Government had in exercise of the powers companyferred by section 3 d of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals. Paragraph 16 of that order ran as under - The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days excluding holidays observed by companyrts subordinate to the High Court from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a companyy of the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct. Provided that the State Government may extend the said period from time to time. Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided- 9 . The decision shall be in writing, and shall be pronounced in open companyrt and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it. It was number disputed before us that the original period calculated in accordance with paragraph 16 above expired on the 9th June, 1951, and the Uttar Pradesh Government validly extended the period up to the 30th June, 1951. It was however companytended that the Industrial Tribunal should have made its award on the 30th June, 1951, and number on the 2nd July, 1951, as it purported to do. It was urged that the provision as to excluding holidays observed by companyrts subordinate to the High Court which obtained in paragraph 16 above did number apply when the period was extended up to a particular date. It would apply only if the period was extended by a particular number of days when for the purpose of the companyputation of those days the holidays would have to be excluded in the manner therein mentioned. The Uttar Pradesh Government having extended the period up to the, 30th June, 1951, it was submitted that the award, should have been made by the 30th June, 1951, and, number later and having been made on the 2nd July, 1951, was therefore beyond time and invalid. This argument might well have prevailed but for the provisions of section 10 of the U. P. General Clauses Act, 1904. That section provides- Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any companyrt or office on a certain day or within a prescribed period, then, if the companyrt or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be companysidered as done or taken in due time if it is done or taken on the next day afterwards on which the companyrt or office is open. The Industrial Court was closed on the 30th June, 1951, which was declared a public holiday. The 1st July, 1951, was a Sunday and it was companypetent to the Industrial Court to pronounce its decision on the next afterwards on which the Industrial Court was n, i.e., the 2nd July, 1951. Prima facie therefore award which was pronounced on the 2nd July, 1, was well within time. The only thing which Shri Khaitan companynsel for the appellant urged before us therefore was that the Industrial Court was number a companyrt within the meaning of section 10 of the U. P. General Clauses Act, The companyrt according to his submission companyld only be companystrued mean a companyrt in the hierarchy of the civil companyrts the State and an Industrial Court did number fall hin that category. We are unable to accept this intention of Shri Khaitan. The Uttar Pradesh industrial Disputes Act, 1947, was an Uttar Pradesh t. The General Order dated the 15th March, 1951, which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by e U. P. Government in exercise of the powers companyferred upon it by section 3 d of the Act. Paragraph 9 of the General Order provided for the decision ing pronounced by the Industrial Tribunal in open urt and we fail to understand how it companyld ever be ged that the Industrial Tribunal was number a companyrt ithin the meaning of section 10 of the U. P. General lauses Act.

KURIAN, J. The challenge in these appeals is to the Judgment dated 02.08.2005 passed by the High Court of Punjab and Haryana in Writ Petition No. 11526 of 1994. The issue pertains to the selection and appointment of Patwaris, initiated in the year 1992. The High Court, as per the impugned order, set aside the selection initiated for filling up 1248 Patwaris. However, liberty was granted to all the parties before the High Court to participate in the fresh Signature Not Verified selection with a relaxation in age. Some of the Digitally signed by JAYANT KUMAR ARORA Date 2018.10.06 123402 IST Reason similarly situated appellants were before this Court leading to the Judgment of this Court dated 28.09.2007 passed in Ram Avtar Patwari Ors. Vs. State of Haryana and Ors. reported in 2007 10 SCC 94, wherein the entire matters were remitted to the High Court for fresh companysideration. We find that the High Court, subsequently, has disposed of the petitions by Judgment dated 11.02.2009 passed in CWP No. 11526 of 1994 O M . It is seen from the said Judgment dated 11.02.2009 that the High Court has taken a pragmatic view in permitting the 1248 Patwaris originally selected to companytinue. However, relaxation was given for others to participate in the fresh selection. We are informed that two subsequent selections have been companyducted. It is number clear as to whether the appellants have participated in those selections. Mr. Manoj Swarup, learned companynsel appearing for the appellants, has made a vehement plea that the appellants having companye up before this Court challenging the Judgment dated 02.08.2005, their cases should be separately companysidered. We are afraid, the companytention cannot be appreciated. The Judgment dated 02.08.2005 has been upset by the Judgment of this Court dated 28.09.2007 in Ram Avtar Patwari supra . The High Court has, pursuant to the remand, disposed of the cases afresh by Judgment dated 11.02.2009.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 858 of 1968. From the Judgment and Decree dated 7-7-67 of the Assam and Nagaland High Court at Gauhati in Misc. Appeal Nos. 36 and 37 of 1966. Sarjoo Prasad and A. K. Nag for the appellant. P. Maheshwari for the respondent. The Judgment of the Court was delivered by RAY, C.J. This appeal by certificate is from the order dated 26 July, 1967 of the High Court of Assam. The only question in this appeal is whether the respondents application filed on 27 July, 1965 for execution of the decree obtained by him is barred by limitation. The respondent on 7 January, 1952 obtained a decree against the appellant for the sum of Rs. 71,980 in a money suit filed in the Court of Subordinate Judge, Gauhati. On 8 December, 1956 the respondent decree-holder filed an application No. 89/56 for executing the said decree. On 15 July, 1957 the appellant, the judgment debtor, filed an application pleading adjustment of the decree. On 15 April, 1958 the judgment debtor withdrew the said application. On 18 December, 1957 the Subordinate Judge Gauhati dismissed the decree-holders application No. 89/56. The decree-holder preferred an appeal. The High Court at Gauhati on 1 July, 1959 set aside the order of the Subordinate Judge and allowed the appeal for execution of the decree. Meanwhile on 18 January, 1958 the appellant judgment debtor in the Gauhati suit obtained a decree against the respondent for the sum of Rs. 1,22,000 in the Court of the Subordinate Judge at Nowgong. In execution of the decree in the Nowgong suit the appellant on or about 29 January, 1958 obtained an attachment of the respondents decree passed in the Gauhati suit. On 13 August, 1959 the Subordinate Judge, Gauhati struck off the execution application No. 89/56 from the file. The respondent filed an appeal against the decree obtained by the appellant in the Nowgong suit. The High Court on 28 April 1964 accepted the appeal filed by the respondent and dismissed the Nowgong suit filed by the appellant. On 27 July, 1965 the respondent filed an application for execution in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection companytending that the application is barred by limitation. On 4 March, 1966 the Subordinate Judge dismissed the execution application as barred by time. On 26 July, 1967 the High Court accepted the appeal filed by the respondent and directed the execution to proceed. The companytention of the appellant is that the order obtained by the appellant attaching the respondents decree did number amount to a stay within the meaning of section 15 of the Indian Limitation Act, 1908, and therefore, the respondents application for execution which was filed on 27 July, 1965 was barred by limitation. The appellant companytended that when the Subordinate Judge, Gauhati on 13 August, 1959 struck off the execution application of the respondent the respondent should have filed an application for execution within three years from that date. The High Court referred to the order dated 29 January, 1958 passed by the Nowgong Court attaching the decree obtained by the respondent. The High Court relied on the provisions companytained in Order 21 Rule 53 1 b of the Code of Civil Procedure and held that the attachment companytinued restraining the respondent from executing the decree until the numberice issued by the Court attaching the decree was recalled. The Nowgong companyrt did number pass any order recalling the order. On 1 March, 1958 the Nowgong companyrt passed an order which was as follows Notice served. No objection filed by J. D. meaning thereby judgment debtor . Heard both parties. Execution case is struck off for the present. Attachment to companytinue until further orders. In the companytext of this order of attachment passed by the Nowgong companyrt the attachment companytinued until the Nowgong suit was dismissed by the High Court on 28 April, 1964. The High Court rightly held that there was numberquestion of limitation because the application was filed within three years from 28 April, 1964 when the bar against execution was raised and the order restraining the respondent decree holder from executing the decree in the Gauhati suit ceased to be operative. Another companytention which had been raised by the appellant and repeated here is that when the Gauhati companyrt on 13 August, 1959 struck off the execution case No. 89/56 the execution application filed on 27 July, 1965 was barred by time. The High Court held that the Gauhati Court on 13 August, 1959 merely struck off the execution application, and, therefore, the subsequent application which was made was a companytinuation of the execution proceedings. The High Court held that striking off the application did number amount to any order deciding the merits of the application. The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to have precluded the respondent from executing the decree during the time the attachment was in force. The other companyclusion of the High Court that the execution application dated 27 July, 1965 was a companytinuation of the earlier application is also companyrect. The order striking off the execution application has been rightly companystrued by the High Court as merely companysigning the application to the Record Room for statistical purposes. The application dated 27 July, 1965 indicates in companyumn 2 as the respondent rightly stated that the previous application for execution was struck off on 13 August, 1959 because of the order of attachment passed by the Nowgong companyrt. The attachment order was nullified only when the appellants suit was dismissed by the High Court on 28 April, 1964. The respondents decree became executable at that time. The inescapable companyclusion is that the application for execution on 27 July, 1965 is a companytinuation of the old application. For these reasons, the judgment of the High Court is affirmed.

Bharucha, J. This appeal by special leave from the judgment and order of a Division Bench of the High Court of Gujarat companycerns the classification of cut and dried chicory roots. It is the case of the appellant assessees that these chicory roots fall either under Entry 8 or Entry 23 of the First Schedule of the Gujarat Sales Tax Act, 1969, as it then stood. It is the case of the Revenue, on the other hand, that they fall under the residuary entry, Entry 13 of the Third Schedule of the said Act. Entries 8 and 23 of the First Schedule read thus Fresh vegetables and edible tubers. Flower, fruit and vegetable seed seeds of lucerne grass Rajka and of sann hemp bulbs, tubers and plants other than orchids. That chicory roots are a tuber is number disputed. The question is whether the chicory roots, as cut and dried, are a companymodity different from the tuber itself. The appellants manufacture companyfee. Chicory is an ingredient in the manufacture of companyfee. The appellants entered into agreements in similar terms with cultivators whereunder the cultivators grew chicory and the appellants purchased the same. Clause 1 of the agreement stated that the cultivators would grow chicory in stated acreages of their farms under the supervision of the appellants officers. The chicory that was to be grown would be subject to sample surveys by the appellants. The cultivators were required to deliver to the Company such quantity of the chicory yields grown in the fields with the seeds supplied by the Company as will meet the Companys total demand or requirement After harvesting, the cultivators were required to wash the chicory roots, cut off at least half an inch of the roots below the crown and slice the roots into lengths varying from half inch to two-and-a-half inches, as instructed by the appellants officers. The cultivators were also required to arrange for drying of the chicory roots to the standard stipulated by the appellants. Upon the basis of the agreement aforesaid, the Tribunal took the view that the chicory roots companyld number be said to be edible tubers which were numbermally used in the like manner as fresh vegetables. It also took the view that the dry chicory roots companyld number be said to be tubers fit for the growing of fresh plants therefrom. Therefore, the dry chicory roots fell outside the scope of both Entries 8 and 23. The High Court applied the popular parlance test and companycluded that the dry chicory roots companyld number be said to be tubers within the meaning of the two entries. Learned companynsel for the appellants drew our attention to the clauses of the agreement and he submitted that the fact that the chicory roots were cut and dried by the cultivators did number change their character as chicory roots. He cited the judgment of this Court in CST v. Pio Food Packers, 1980 Supp SCC 174, 1980 SCC Tax 319 Learned companynsel for the Revenue submitted that the character of the chicory roots did change upon drying and cutting they lost their character as tubers and, applying the popular parlance test, companyld numberlonger be said to be such. The case of Pio Food Packers aforementioned was companycerned with pineapples which, after washing, were cut so that the inedible portions were removed. They were then sliced and canned in preservatives and the cans were sealed and sterilised. The question was Is the pineapple fruit companysumed in the manufacture of pineapple slices? This Court referred to its earlier judgments where this principle had been applied Where there is numberessential difference in identity between the original companymodity and the processed article it is number possible to say that one companymodity has been companysumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity. The Court found that there was numberessential difference between the pineapple fruit and the canned pineapple slices. The only difference was that the sliced pineapple was a presentation of the fruit in a more companyvenient form and, by reason of being canned, it was capable of storage without spoiling. The additional sweetness in the canned pineapple arose from the sugar that was added as a preservative. On a total impression, it was held that the pineapple slices possessed the same identity as the original pineapple fruit. An analysis of the agreement, it seems to us, shows that what the appellants required the cultivators to grow and then sell to them were chicory roots. That, before delivery to the appellants, the cultivators were required to cut, slice and dry the roots was number of great significance. It was, clearly, only to provide companyvenience in delivery. The essential character of the chicory roots did number change by reason of the cutting, slicing and drying. With this in mind, let us turn to the relevant entries. We will assume at the outset that Entry 8 is inapplicable because it refers to edible tubers and there is numbermaterial on record to show that dried chicory roots are edible. The companytention of the Revenue in regard to Entry 23 is that it refers to that which may germinate. It is said that the entry refers to the seeds of flowers, fruits, vegetables, lucerne grass and hemp and bulbs fall in the same category. There is numberdoubt that this is so, but the entry also goes on to mention tubers and plants other than orchids. Plants, as such, do number germinate. Tubers are linked to plants in the entry and must be similarly companystrued.

HEMANT GUPTA, J. The challenge in the present appeal is to an order of the Division Bench of the Gauhati High Court passed in writ appeal on 20 th February, 2018 maintaining an order of the Single Bench of the High Court whereby termination of dealership of respondent No. 1 1 for violation of Marketing Discipline Guidelines, 2012 2 was set aside. The dealer was granted retail dealership for sale of motor spirit petrol , High Speed Diesel, motor oil and grease as a physical 1 for short, dealer 2 for short, Guidelines disabled person on a depot located at Ghograpar, National Highway -31 in the District of Nalbari, Assam. The sale and supply from the retail outlet of the dealer was suspended by the appellants on 6 th May, 2013 when it was found, on the joint inspection, variation of stock of High Speed Diesel beyond permissible limit density of Tank No. 2 was number available and that tanker truck retention of the companyresponding tank was number available at the time of inspection. The appellant had drawn three samples from Tank No. 2. One sample was sent for testing, another sample was retained by the Field Survey Officer and the third sample was handed over to the dealer. A show cause numberice was issued to the dealer on 6th May, 2013, alleging violation of Clauses 5.1.9 and 5.1.11 of the Guidelines. The dealer submitted his explanation on 21st May, 2013, inter alia, stating that dispensing unit was number working properly and, therefore, wrong readings were shown. The dealer was informed on 27 th June, 2013 that test report of High-Speed Diesel samples drawn from the tank on 6 th May, 2013 had been received. The report was that the samples failed to meet the specifications. Thereafter, in response to a show cause numberice dated 27th June, 2013 to explain the number-conformities detected, the dealer vide letter dated 17th July, 2013 requested to seek retesting of the umpire sample which was drawn on the same day, sealed, and certified by the appellants. The stand of the dealer was that the dispensing unit was 20 years old and due to lack of maintenance on account of the road-widening project, the totalizer had been showing wrong readings. The request of the dealer for retest was accepted on 6 th August, 2013. The retest was carried out in the Laboratory of the appellants on two sets of samples including the one retained by the Field Survey Officer of the appellants. The report of the aforesaid two sets of samples was issued on 19th August, 2013. The report of the sample which was retained by Field Survey Officer of the appellants was that it did number meet the BIS III specifications whereas, the sample of the dealer was number fit for testing due to presence of sludge. On the basis of the test reports dated 29 th May, 2013 and 19th August, 2013, the dealership was terminated on 25th April, 2014 after serving another show cause numberice dated 10 th December, 2013 wherein, it has been stated that deviation was observed during inspection pertaining to stock variation and number-availability of reference density. The appellants have mentioned details of number-conformity and the violation of the Clauses in the letter of termination dated 25th April, 2014, which read as under SN NON CONFORMITY VIOLATION OF CLAUSE REF NO MDG 2012 Stock Variation Positive of Clause No. 5.1.11 HSD beyond permissible Non-availability of reference Clause No. 5.1.9 density Tank-2 at the time of inspection. It was also pointed out that out of three samples drawn from Tank No. 2 on 6th May, 2013, one sample was sent to the Laboratory, another was retained by the Field Survey Officer and the third sample was handed over to the dealer. The result of the three samples is as under SN Test report Test report Status Details of sample number date NERL MDG HS- 29.05.2013 Does number Nozzle sample 62/2013 meet companylected on specificatio 06.05.2013 and n sent to Betkuchi for testing NERL MDG HS- 19.08.2013 Does number Nozzle sample 77/2013 meet companylected on specification 06.05.2013 and retained with Field Officer till subsequent test on 19.08.2013. NERL MDG HS- 19.08.2013 Test number Nozzle sample 77/2013 companyducted companylected on 06.05.2013 and retained with you till 19.08.2013 companyld number be tested due to presence of sludge. In view of the above, the following violations were detected and the penal action was taken In view of the above the cumulative MDG violations detected and established in the Retail Outlet are as follows Stock variation beyond permissible limit Violation of MDG-2012 Clause number 5.1.11 Nozzle Sample failure of HSD. Violation of MDG 2012 Clause number 5.1.1 Non availability of reference density Violation of MDG- 2012 Clause number 5.1.9 Non availability of TT retention sample Violation of MDG-2012 Chapter 5 numberes-i The penal action for the irregularity mentioned in point number a b is termination in the first instance as per Clause number8.2 of MDG-2012. The penal action for the irregularity mentioned in point number c d is Warning cum Guidance letter in the first instance as per Clause number8.4 of MDG- 2012. The above stated irregularities are also in violation of the provisions made under clause number 27 and clause number 40 of the dealership agreement executed by and between you and the companyporation on 20.12.1995. The dealer challenged the termination of the dealership before the Gauhati High Court. The learned Single Judge allowed the writ petition on 13th October, 2015 holding that as per the Guidelines, the samples were required to reach the Laboratory preferably within ten days whereas, the first sample was tested on 29 th May, 2013 that is after ten days and the umpire sample given to the dealer was tested on 19th August, 2013. It was held that there is number-compliance of the time line fixed. The learned Single Judge held as under Turning to the provisions under Clause 2.4.4 Notes 2 , Clause 2.5 and Clause 2.10 of the Guidelines, the time-limits prescribed for sending the samples to the laboratory from the date of companylection as well as the time within which the sample should be tested from the date when it reached the laboratory, are provisions that requires strict adherence. If a companytrary view is adopted to allow the respondent Corporation to take as much time at its discretion for sending the sample to the laboratory and thereafter to get it tested, the said provisions prescribing time-limits would be rendered otiose and redundant. On that account, the time-limits ought number to have been prescribed mentioned in the said Clauses in the first place. Surely, this cannot be the intention of IOCL being full well aware that time gap between the sample taken and laboratory test is essentially to be maintained so as to avert any variations in the density test of the sample so companylected. The argument of Mr. MK Choudhury that the word preferably occurring in the said clauses cannot be companystrued as mandatory, this Court rejects the said companytention and holds that the adherence of the time-limits prescribed under the Guidelines is directly proportionate to the ultimate decision that would be reached. The timelimits and adherence thereof is a companytractual obligation that has to be discharged by the Oil Corporation in letter and spirit. The learned Single Judge also found that the stock variation is number a critical irregularity within the meaning of Clause 8.2 of the Guidelines and cannot entail termination of dealership. The Division Bench of the High Court, in appeal, agreed with the finding recorded by the learned Single Bench. The Court relied upon judgments of this Court in Hindustan Petroleum Corporation Limited Ors. v. Super Highway Services Anr.3 and Bharat Petroleum Corporation Limited v. Jagannath And Company Ors. 4. It was held by the Division Bench of the High Court that the finding recorded by the learned Single Judge is a plausible finding, therefore, does number warrant 3 2010 3 SCC 321 4 2013 12 SCC 278 interference in an intra-court appeal. Learned companynsel for the appellants argued that the findings recorded by the High Court that the Guidelines require strict adherence is a total misreading of the Guidelines. For such an argument, reference is made to Note 2 of Clause 2.4.4 Sub- Clauses A and I of Clause 2.5 Clause 8.2 classifying critical irregularities Clause 8.3 classifying major irregularities as well as Clause 5.1.1 of what is meant by the adulteration and Clause 5.1.11 providing for companysequences of stock variation to companytend that in the event of failure of sample in the cases of positive stock variation beyond permissible limit, action in line with that of adulteration is to be initiated. Thus, apart from the adulteration, even the stock variation in the event of failure of sample leads to critical irregularity. It is companytended that the High Court erred in allowing the writ petition and setting aside the termination of the dealership. The relevant Clauses from the Guidelines read as under 1.5 Observance of statutory and other regulations All statutory rules and regulations in companynection with storage and sale of petroleum products must be followed and implemented, such as maintaining stock sales density records, display of daily stock, price board etc. xx xx xx The provisions companytained in the Motor Spirit and High Speed Diesel Prevention of Malpractices in Supply Distribution Order issued by the Government of India or any amendment or revision thereof and instructions issued by the Oil Company State Govt. authorities etc. from time to time shall be strictly adhered to and all companycerned records shall be maintained and produced to Inspecting officials on demand. 2.4.4 Drawal of samples by mobile laboratories xx xx xx Notes 1 xx xx xx All the above samples should reach the laboratories for testing preferably within 10 days of the companylection of the samples. xx xx xx 2.5 General procedure for drawal of samples All samples should preferably be suitably companyed before sending to lab for testing preferably within 10 days of drawal. xx xx xx The purpose of mentioning time frame for various activities e.g. sending samples to lab preferably within 10 days etc. is to streamline the system and is numberway related to quality result of the product. xx xx xx 5.1 MS HSD 5.1.1. Adulteration of product Definition Adulteration means the introduction of any foreign substance into Motor Spirit High Speed Diesel illegally or unauthorizedly with the result that the product does number companyform to the requirements of Bureau of Indian Standards specification number IS2796 and IS1460 for Motor Spirit and High Speed Diesel respectively and amendments thereon, and or If the observations on the sample under scrutiny and the reference sample do number fall within reproducibility permissible limits of the test method for which the samples are examined, and or Any other requirement for the purpose to identify adulteration, issued by the Competent Authority from time to time. xx xx xx 5.1.11 Stock variation of MS HSD Beyond permissible limits Fuel Stock reconciliation should be carried out and variation, if any, established after taking into account the numbermal operational variation of 4 of tank stock and after companysidering the following factors xx xx xx In case of positive stock variation beyond permissible limits, samples will be drawn and sent to laboratory for testing. Sales and supplies of all products to be suspended immediately. Study to be carried out to identify the reasons for stock variation. If the sample passes but some other irregularity like unauthorized purchase etc. is established action to be taken accordingly. However, if the sample fails, action in line with that of adulteration will be initiated. xx xx xx Action to be taken by OMC under the Marketing Discipline Guidelines 8.1 All irregularities mentioned in chapter-5 are classified into three categories, i.e. Critical, Major and Minor. 8.2 Critical Irregularities The following irregularities are classified as critical irregularities Adulteration of MS HSD 5.1.1 xx xx xx Action Termination at the First instance will be imposed for the above irregularities. 8.3 Major Irregularities The following irregularities are classified as major irregularities i. xx xx xx ii. Non availability of reference density at the time of inspection. 5.1.9 iii. xx xx xx iv. Stock variation beyond permissible limits but sample passing quality tests. 5.1.11 xx xx xx Action Except in case of iii , vii , viii , ix and x above First instance Suspension of sales and supplies for 15 days. Second instance Suspension of sales and supplies for 30 days. Third instance Termination of the dealership. xx xx xx 8.5.1 The above are general guidelines and the actions prescribed in MDG 2012 are minimum. The companypetent Authority of the companycerned Oil Company can however take appropriate higher action against the erring dealer, if deemed necessary including termination in the first or any instance in line with the provisions of the Agreement. On the other hand, Mr. Goswami, learned companynsel for the dealer argued that if three samples were drawn at the same time, it is number believable that the sample with the dealer alone has been found to be companytaining sludge. If the samples were taken at the same time, finding of sludge from the umpire sample companypletely knocks down the stand of the appellants that the samples have failed in the test, as the authenticity of the samples taking process is doubtful. It is further companytended that in terms of Clause 1.5 v of the Guidelines, the Motor Spirit and High Speed Diesel Prevention of Malpractices in Supply Distribution Order, 2005 5 issued by the Government of India is applicable. The said order provides for a procedure of search and seizure. The search and seizure in terms of Clause 7 of the Control Order issued under Section 3 of the Essential Commodities Act, 19556 can be effected only in the presence of two independent witnesses as is required under Section 100 of the Code of Criminal Procedure, 19737. Since, the sample has number been taken in the manner prescribed in the order read with Section 100 of the Code, therefore, the termination of the dealership is wholly illegal. It is argued that such argument was raised before the learned Single Judge but the same was number examined in view of the fact that the Guidelines were found to be mandatory in nature. It is companytended that the findings recorded by the High Court, that the time limit in the Guidelines is mandatory, owing to the larger public interest to serve and the appellants cannot take benefit of its delay, in sending samples for testing to lead a penal companysequence of termination of the dealership is the companyrect enunciation of law. It is companytended that termination of dealership is a serious companysequence affecting right of a dealership under Articles 21 and 14 of the Constitution of India. Learned companynsel for the dealer 5 for short, Control Order 6 for short, Act 7 for short, Code relied upon the judgments referred to by the Division Bench of the High Court. The first issue required to be examined is whether the appellants were required to follow the procedure under the Control Order read with Section 100 of the Code. The Control Order has been issued under Section 3 of the Act. Such Act has been enacted for companytrol of the production, supply and distribution and trade and companymerce, of certain companymodities. In respect of High Speed Diesel and Motor Spirit, the Control Order is issued for regulation of supply and distribution and prevention of the malpractices. Section 6A of the Act provides for companyfiscation of the essential companymodity whereas, Section 7 of the Act makes any person who companytravenes any order made under Section 3 liable for criminal prosecution. Therefore, we find that the effect of issuance of the Control Order is that in the event of violation of such Control Order, any person who companytravenes any order made under Section 3 of the Act i.e. the Control Order, he is liable to be punished by a Court. Therefore, the violation of the Control Order has penal companysequences leading to companyviction. The provisions of search and seizure companytained in Clause 7 read with Section 100 of the Code will companye into play only in the event a person is sought to be prosecuted for violation of the provisions of the Control Order. Admittedly, in the present case, the dealer is number sought to be prosecuted for the violation of the Guidelines, therefore, the procedure for drawing of samples which is a necessary pre-condition under the Control Order for prosecuting an offender does number arise for companysideration. The dealer has entered into an agreement on 20th December, 1995. It is number disputed that the dealer is bound by the Guidelines issued by the Public Sector Oil Marketing Companies. Clause 2.4.4 of the Guidelines provides for procedure for drawing of samples. Note 2 provides that the samples drawn should reach the laboratory for testing preferably within ten days of the companylection of the samples. Similarly, sub-clause A of Clause 2.5 of the Guidelines provides that all samples should be suitably companyed before sending them to the laboratory for testing preferably within ten days of drawing the samples. Sub-clause I of Clause 2.5 of the Guidelines is that the purpose of mentioning time frame for various activities such as sending samples to the laboratory preferably within ten days is to streamline the system and is in numberway related to quality result of the product. In view of the language of the Guidelines, the findings recorded by the High Court that the time line is to be strictly adhered to cannot be sustained. The Guidelines as mentioned in sub-clause I of Clause 2.5 of the Guidelines is to streamline the functioning i.e. the oil companypanies should number arbitrarily or without any justification send the sample for testing at their sweet will. The sample in this case was drawn on 6th May, 2013 and was sent for testing on 22 nd May, 2013 i.e. there was a delay of 5 days. Since the Guidelines use the time line as a preferred time line, it cannot be said that the time line mentioned has to be strictly adhered to and is mandatory. The language, the purport and the effect of testing do number warrant to read the word preferably as mandatory time line. It is number the case of the dealer that the sample sent after five days will lose its efficacy as the umpire sample would be sent only after the first report is companyfronted to the dealer. Still further, the dealer has number raised any objections regarding delay in sending the sample in the two replies submitted by him on 17 th July, 2013 and 2nd January, 2014. The argument that the umpire sample in the hands of the dealer companyld number be tested because of sludge and to doubt the other two samples is totally untenable. Such argument is based upon companyjectures as the other two samples companylected and sealed cannot be permitted to be disputed only because one sample was found with sludge. There is numbermaterial to doubt the companyrectness of the samples taken. The first test report dated 29th May, 2013 was found deficient in the density as also in K.V. 40 degree celsius, sulphur and distillation recovery. Even the report dated 19 th August, 2013 is found to be deficient in density, K.V., distillation recovery and sulphur. The result of the second report is almost the same as the sample tested on 29th May, 2013. Thus, the appellant has rightly terminated the dealership for adulteration of the High Speed Diesel. There was variation in stock beyond permissible limits. In case of positive stock variation beyond permissible limits and on account of failure of sample, action in line with that of adulteration is to be initiated. The adulteration in these circumstances is a critical irregularity falling in Clause 8.2 of the Guidelines and the action required to be taken is termination of the dealership. However, in case of stock variation beyond permissible limits and the sample passing the quality test, it leads to suspension of sale and supply for fifteen days in the first instance, suspension of sale and supply for thirty days in the second instance and termination of dealership in the third instance. In this case, since the stock variation was beyond permissible limits and the sample failed, therefore, the action was rightly taken under Clause 5.1.11 of the Guidelines which is a critical irregularity when read with sub-clause i of Clause 8.2 and sub-clause iv of Clause 8.3 of the Guidelines. The judgments referred to by the learned companynsel for the dealer are number applicable to the facts of the present case as in both the cases, the action taken by the oil companypany was found to be in violation of the principle of natural justice as numbernotice was served upon the dealer but, in the present case, after failure of the first sample in the test report dated 29th May, 2013, the dealer was informed, who opted for testing of umpire sample in his possession. The said sample along with the sample in possession of the Field Survey Officer was sent for testing and in the report dated 19 th August, 2013, the sample was found to have the same deviations as in the first sample tested on 29th May, 2013. The dealer was informed of the result of the second test and was also given a show cause numberice as to why the dealership should number be terminated.

This is an appeal against a decision of a Full Bench of the Patna High Court in respect of the Assessment Years 1967-68, 1968-69 and 1969-70. The question raised in this case came up for companysideration earlier before a Division Bench of the Patna High Court in the case of CIT v. S.K. Sahana and Sons Lid., 1976 102 ITR 437 Pat which was called upon to companysider the following question of law Whether, on the facts and in the circumstances of the case, income of the assessee received from the managing companytractor was income from business? The assessment years involved in that case were 1963-64 and 1964-65. In that case the Tribunal found that the assessee was a public limited companypany deriving income from mining business known as New Bansjora Colliery. The assessee and Messrs Khas Ganeshpur Coal Mines P Ltd. entered into an agreement dated 22-4-1959 Annexure C/2 , to some of the terms of which I shall refer at a proper and appropriate place. By this agreement, Messrs Khas Ganeshpur Coal Mines P Ltd. hereinafter referred to as the managing companytractor was allowed to carry on the companyl business of the assessee and to pay to it profit at a certain rate on the amount of companyl raised and soft and hard companye manufactured subject to a minimum guaranteed amount. This income which the assessee received from the managing companytractor aforesaid was assessed by the Income Tax Officer as income from other sources and number from business. The assessee having preferred appeals before the Appellate Assistant Commissioner and having failed there too, pursued further appeals before the Tribunal. The companytention put forward on behalf of the assessee before the Tribunal was that the income received by the assessee from its managing companytractor in respect of the two assessment years in question was an income from business since it arose out of a companytract between a principal and an agent, the principal still carrying on the business through its agent -- the managing companytractor. The question for determination before the Tribunal was as to whether, on a true companystruction of the deed of agreement between the parties, it was a transfer of the business, or a letting out of the companymercial assets, or was there merely a companytract of agency so that the assessee companyld still be held to be carrying on the business through its agent. The Tribunal, by its appellate order, found that the relationship created between the assessee and the managing companytractor was clearly one of principal and agent. The power of attorney executed by the assessee in favour of the managing companytractor strengthened the companyclusion that the legal relationship between the parties was that as between a principal and an agent and the cumulative effect of all the various clauses of the agreement established that the managing companytractor aforementioned was only working as an agent of the assessee and the transaction was number at all that of letting out. In other words, there was number even a lease executed in favour of the managing companytractor. The Tribunal further held that the managing companytractor aforesaid was carrying on the companyliery business under the effective companytrol and guidance of the assessee, which companytrol and guidance militated against any companytention that the relationship between them was one of lessor and lessee. On these findings, the Tribunal accepted the companytention of the assessee that there was absolutely numberquestion of any transfer either out and out or even by way of lease of the business of the assessee on the companytrary, the assessee was very much carrying on its business through its agent, the managing companytractor. The income, thus, according to the Tribunal, clearly fell within the purview of income from business and companyld number be assessed as income from other sources. The High Court, on reference, took into companysideration the findings of fact made by the Tribunal and answered the question in the affirmative and in favour of the assessee. The attention of the Court was drawn to a judgment of this Court in the case of New Savan Sugar and Gur Refining Co. Ltd. v. CIT, and it was argued that the transaction between the assessee and its companytractor should number be treated as anything but transfer of the business of the assessee altogether. The High Court observed that it was well settled that each case must be decided on its own facts and on a proper companystruction of the documents in question. The High Court pointed out that in the case of New Savan Sugar Case Supra this Court found that the intention of the assessee was to part with the entire machinery of the factory and the premises with the obvious purpose of earning of rental income. This Court held that It was number the intention of the assessee to treat the factory and machinery, etc., as a companymercial companycern during the subsistence of the lease. The High Court felt that in view of the findings made by the Tribunal, the question before the High Court had to be answered in favour of the assessee. The Revenue did number pursue the case any further. The very same question once again cropped up in companyrse of assessment years of 1967-68, 1968-69 and 1969-70. The Appellate Assistant Commissioner held in favour of the assessee. The Tribunal merely followed its own findings of fact and its decision given in the earlier years case. A Full Bench was companystituted to examine the question afresh. The Full Bench came to the companyclusion that the earlier judgment of the Division Bench in the assessees own case in the assessment made in the years 1963-64 and 1964-65 was erroneous. The Full Bench, on a review of a large number of cases, came to the companyclusion that number only the decision of the Division Bench of the Patna High Court in the assessees own case in the earlier years but also a large number of other High Court decisions were erroneous. One of the decisions with which the Full Bench disagreed was the judgment of the Allahabad High Court in the case of CITv. Vikram Cotton Mills Ltd., . The judgment of Allahabad High Court in Vikram Cotton Mills Case Supra was affirmed by this Court in the case of CIT v. Vikram Cotton Mills Ltd., . It was held that in the facts of that case the rent received by the assessee was to be treated as business income. This decision was given on the basis of the finding of the Tribunal that the assessee had numberintention to permanently discontinue its business. On behalf of the Revenue, it has been strenuously companytended that each case must be decided on its own facts. Even though the decision of the Allahabad High Court in the case Vikram Cotton Mills Supra was held to be erroneous by the Full Bench, in the instant case, in companying to its decision the mere fact that the decision of the Allahabad High Court has been affirmed by this Court will number make any difference to the position in law. He took us through the various clauses of the agreement between the parties and companytended that the judgment of the Full Bench must be upheld. In particular, it relied on the decision of this Court in the case of New Savan Sugar Case Supra and companytended that the principles laid down in that case are applicable to the facts of this case. We are unable to uphold the companytention made on behalf of the Revenue. It has to be borne in mind that New Savan Sugar Case Supra was decided on its own facts. In that case it was recorded by this Court in its judgment On appeal, the Appellate Assistant Commissioner found that it was a simple lease of the building and machinery in a sugar factory, and as such the method of payment based on production companyld number affect the character and nature of the income derived under the said lease. In further appeal the Appellate Tribunal came to the companyclusion that on the facts stated the case fell under Section 12 and number under Section 10 and that since Sub-section 3 of Section 12 did number include Clauses vi-a and vi-b of Section 10 2 the claim of additional depreciation and development rebate companyld number be allowed. On the basis of this finding and analysis of the agreement, this Court came to the companyclusion that the Tribunal had companye to a companyrect decision. In the instant case, the Tribunal has merely followed its earlier decision for the Assessment Years 1963-64 and 1964-65 in which the Tribunal had categorically found the managing companytractor was carrying on the companyliery business under the effective companytrol and guidance of the assessee and the relationship between the companytractor and the assessee was number of lessor and lessee. The Tribunal came to the companyclusion that the assessee was carrying on its business through its agent, the managing companytractor. This finding of fact was number challenged before the High Court.

TABLE OF CONTENTS Introduction A Contentions B Issues C Production of Orders D Fundamental Rights under Part III and restrictions E thereof Signature Not Verified Digitally signed by Internet Shutdown F GEETA AHUJA Date 2020.01.10 124427 IST Reason Restrictions under Section 144, Cr.P.C. G Freedom of the Press H Conclusion I V. RAMANA, J. INTRODUCTION It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had numberhing before us, we were all going direct to Heaven, we were all going direct the other way in short, the period was so far like the present period, that some of its numbersiest authorities insisted on its being received, for good or for evil, in the superlative degree of companyparison only. Charles Dickens in A Tale of Two Cities Although cherished in our heart as a Paradise on Earth, the history of this beautiful land is etched with violence and militancy. While the mountains of Himalayas spell tranquillity, yet blood is shed every day. In this land of inherent companytradictions, these petitions add to the list, wherein two sides have shown two different pictures which are diametrically opposite and factually irreconcilable. In this companytext, this Courts job is companypounded by the magnitude of the task before it. It goes without saying that this Court will number delve into the political propriety of the decision taken herein, which is best left for democratic forces to act on. Our limited scope is to strike a balance between the liberty and security companycerns so that the right to life is secured and enjoyed in the best possible manner. Liberty and security have always been at loggerheads. The question before us, simply put, is what do we need more, liberty or security? Although the choice is seemingly challenging, we need to clear ourselves from the platitude of rhetoric and provide a meaningful answer so that every citizen has adequate security and sufficient liberty. The pendulum of preference should number swing in either extreme direction so that one preference companypromises the other. It is number our forte to answer whether it is better to be free than secure or be secure rather than free. However, we are here only to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time. The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline companynectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas. On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 Interpretation in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Cr.P.C. Due to the aforesaid restrictions, the Petitioner in W.P. C No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition companyld number be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions. Aggrieved by the same, the Petitioners Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ for setting aside or quashing any and all order s , numberification s , direction s and or circular s issued by the Respondents under which any all modes of companymunication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of companymunication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. Moreover, the Petitioner in W.P. C No. 1031 of 2019 also pleaded to pass any appropriate writ or direction directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel. Lastly, she also pleaded for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is number unreasonably curtailed. Moreover, Mr. Ghulam Nabi Azad Petitioner in W.P. C No. 1164 of 2019 , alleges that he was stopped from travelling to his companystituency in Jammu and Kashmir. In this companytext, he alleges that due to the aforesaid restrictions, he is number able to companymunicate with the people of his companystituency. When W.P. C No. 1164 of 2019 by Mr. Ghulam Nabi Azad , was listed before a Coordinate Bench of this Court on 16.09.2019, the following order was passed Issue numberice. We permit the petitioner to go to Srinagar and visit the following districts, subject to restrictions, if any Srinagar, ii Anantnag, iii Baramulla and Jammu. The petitioner has undertaken before the Court on his own volition that he will number indulge in any political rally or political activity during his visit. The visit will solely be companycerned with making an assessment of the impact of the present situation on the life of the daily wage earners, if any. So far as prayers 2 and 3 of the writ petition are companycerned, the State as well as, the Union of India will respond within two weeks hence. When W.P. C No. 1031 of 2019, was listed on 16.08.2019, the matter was ordered to be tagged along with W.P. C No. 1013 of 2019 fiveJudge Bench and was later detagged. On 16.09.2019, a Coordinate Bench of this Court ordered the following The State of Jammu Kashmir, keeping in mind the national interest and internal security, shall make all endeavours to ensure that numbermal life is restored in Kashmir people have access to healthcare facilities and schools, companyleges and other educational institutions and public transport functions and operates numbermally. All forms of companymunication, subject to overriding companysideration of national security, shall be numbermalized, if required on a selective basis, particularly for healthcare facilities. When the said writ petition was listed before this Bench on 01.10.2019, in light of expediency, this Bench directed that numberfurther intervention applications shall be entertained. However, liberty was granted to file additional documents in support of applications for intervention. When the matter came up for hearing on the next date on 16.10.2019, the following order was passed When these matters came up for hearing today, learned Solicitor General appearing for the Union of India made a submission that after filing the companynter affidavit in these matters, certain further developments have taken place and some of the restrictions imposed have been relaxed, particularly with reference to mobile companynectivity as well as the landlines services etc. and, therefore, he wants to file another additional affidavit indicating the steps taken by the Government about relaxation of some restrictions. He also made a request to accommodate him for a week only. During the companyrse of hearing, we are informed by the learned Senior companynsel appearing for the petitioners that the orders which are issued by the authorities relating to the restrictions imposed have number been provided to them so far. When we asked the learned Solicitor General about the number supply of orders issued by the authorities relating to the restrictions imposed, particularly with respect to the cell phone services as well as Section 144 proceedings, he claims privilege over those orders. He, however, states that those orders can be produced before this Court. However, if for any reason, learned Solicitor General does number want to give a companyy of those orders to the petitioners, we request him to file an affidavit indicating the reasons for claiming such privilege. On 24.10.2019, after the aforesaid orders were placed on record and pleadings were companyplete, the matter was listed for final disposal on 05.11.2019. Taking into account the companycerns expressed by the parties, we extensively heard the companynsel for both sides, as well as all the Intervenors on 05.11.2019, 06.11.2019, 07.11.2019, 14.11.2019, 19.11.2019, 21.11.2019, 26.11.2019 and 27.11.2019, and companysidered all the submissions made and documents placed before us. CONTENTIONS Ms. Vrinda Grover, Counsel for the Petitioner in W.P. C No. 1031 of 2019 It was companytended that the petitioner, being executive editor of one of the major newspapers, was number able to function post 05.08.2019, due to various restrictions imposed on the press. Print media came to a grinding halt due to numberavailability of internet services, which in her view, is absolutely essential for the modern press. Curtailment of the internet, is a restriction on the right to free speech, should be tested on the basis of reasonableness and proportionality. The procedure that is to be followed for restricting Internet services is provided under the Temporary Suspension of Telecom Services Public Emergency or Public Service Rules, 2017 hereinafter Suspension Rules, which were numberified under the Telegraph Act. The Suspension Rules indicate that the restriction imposed was companytemplated to be of a temporary nature. The orders passed under the Suspension Rules placed on record by the State of Jammu and Kashmir, regarding the restrictions pertaining to the Internet and phones either mobile or telephone were ex facie perverse and suffered from numberapplication of mind. Learned companynsel submitted that the orders were number in companypliance with the procedure prescribed under the Suspension Rules. Further, the orders did number provide any reasoning as to the necessity of the restrictions, as is required under the Suspension Rules. Lastly, the learned companynsel companytended that the orders are based on an apprehension of likelihood that there would be danger to a law and order situation. Public order is number the same as law and order, and the situation at the time when the orders were passed did number warrant the passing of the orders resulting in restrictions. Mr. Kapil Sibal, Senior Counsel for the Petitioner in W.P. C No. 1164 of 2019 Learned senior companynsel submitted that the orders of the authorities had to be produced before the Court, and cannot be the subject of privilege, as claimed by the State. It was submitted that the companyduct of the State, in producing documents and status reports during argumentation, was improper, as it did number allow the Petitioners with sufficient opportunity to rebut the same. Learned senior companynsel submitted that the Union of India can declare an emergency only in certain limited situations. Neither any internal disturbance number any external aggression has been shown in the present case for the imposition of restrictions which are akin to the declaration of Emergency. With respect to the orders restricting movement passed under Section 144, Cr.P.C., the learned senior companynsel companytended that such an order is made to deal with a law and order situation, but the orders do number indicate any existing law and order issue, or apprehension thereof. Learned senior companynsel pointed out that the order of the Magistrate under Section 144, Cr.P.C. cannot be passed to the public generally, and must be specifically against the people or the group which is apprehended to disturb the peace. It is necessary for the State to identify the persons causing the problem, and an entire State cannot be brought to a halt. Moreover, he has companytended that there was numberapplication of mind before passing those orders. While submitting that it companyld be assumed that there was some material available for the purpose of passing the orders under Section 144, Cr.P.C., the question which then arises is how the State balances the rights of individuals. The learned senior companynsel, with respect to the companymunications restrictions, submitted that the State had number indicated as to the necessity to block landline services. He further submitted that the companymunications Internet restrictions which were imposed under the Indian Telegraph Act, 1885 hereinafter Telegraph Act needs to follow the provisions of Section 5 of the Telegraph Act, in line with Article 19 of the Constitution. While there can be some restrictions, there can be numberblanket orders, as it would amount to a companyplete ban. Instead, a distinction should be drawn while imposing restrictions on social media mass companymunication and the general internet. The least restrictive option must be put in place, and the State should have taken preventive or protective measures. Ultimately, the State needs to balance the safety of the people with their lawful exercise of their fundamental rights. On internet restrictions, the learned senior companynsel submitted that such restrictions number only impact the right to free speech of individuals but also impinges on their right to trade. Therefore, a less restrictive measure, such as restricting only social media websites like Facebook and Whatsapp, should and companyld have been passed, as has been done in India while prohibiting human trafficking and child pornography websites. The learned senior companynsel pointed to orders passed in Bihar, and in Jammu and Kashmir in 2017, restricting only social media websites, and submitted that the same companyld have been followed in this case as well. Indicating that the State can impose restrictions, the learned senior companynsel focussed on the question of the least restrictive measure that can be passed. The learned senior companynsel submitted that while imposing restrictions, the rights of individuals need to be balanced against the duty of the State to ensure security. The State must ensure that measures are in place that allows people to companytinue with their life, such as public transportation for work and schools, to facilitate business, etc. Mr. Huzefa Ahmadi, Senior Counsel for Intervenor in I.A. No. 139141 of 2019 in W.P. C No. 1031 of 2019 The learned senior companynsel emphasized on the term reasonable, as used in Article 19 2 of the Constitution, and submitted that the restrictions on the freedom of speech should be reasonable as mandated under Article 19 of the Constitution. These restrictions need to be tested on the anvil of the test of proportionality. Learned senior companynsel submitted that Section 144, Cr.P.C. orders should be based on some objective material and number merely on companyjectures. Mr. Dushyant Dave, Senior Counsel for the Intervenor in I.A. No. 139555 in W.P. C No. 1031 of 2019 Learned senior companynsel attempted to highlight that the issue of balancing the measures necessary for ensuring national security or curbing terrorism, with the rights of the citizens, is an endeavour that is number unique, and has been undertaken by Courts in various jurisdictions. Learned senior companynsel relied on the judgment of the Supreme Court of Israel companycerning the Legality of the General Security Services Interrogation Methods in Public Committee Against Torture in Israel v. Israel, 38 I.L.M. 1471 1999 relating to the question of whether torture during interrogation of an alleged terrorist was permissible. In that case, the Israeli Supreme Court held that such acts were unconstitutional, and companyld number be justified in light of the freedoms and liberties afforded to the citizens of Israel. Learned senior companynsel drew parallels between the situation faced by the Israeli Supreme Court in the abovementioned case, and that before this Court, wherein, according to the learned senior companynsel, the State is attempting to justify the restrictions due to the circumstances prevailing in the State of Jammu and Kashmir. The learned senior companynsel submitted that such a justification merits rejection as it would amount to granting too much power to the State to impose broad restrictions on fundamental rights in varied situations. It would amount to individual liberty being subsumed by social companytrol. The learned senior companynsel emphasized on the seriousness of the present matter, stating that such restrictions on the fundamental rights is the reason for the placement of Article 32 of the Constitution in Part III, as a fundamental right which allows for the enforcement of the other fundamental rights. He referred to the Constituent Assembly debates to highlight the import of Article 32, as companytemplated by the Members of the Constituent Assembly. The learned senior companynsel also placed before this Court the Government of India National Telecom Policy, 2012, and submitted that the wide restrictions imposed by the State are in companytravention of the aforementioned policy. He submitted that the freedom of speech and expression is meant to allow people to discuss the burning topic of the day, including the abrogation of Article 370 of the Constitution. Lastly, the learned senior companynsel emphasized that the restrictions that were imposed are meant to be temporary in nature, have lasted for more than 100 days, which fact should be taken into account by this Court while deciding the matter. Ms. Meenakshi Arora, Senior Counsel for the Intervenor in A. No. 140276 in W.P. C No. 1031 of 2019 Learned senior companynsel submitted that Articles 19 and 21 of the Constitution require that any action of the State must demonstrate five essential features a backing of a law, b legitimacy of purpose, c rational companynection of the act and object, d necessity of the action, and e when the above four are established, then the test of proportionality. At the outset, learned senior companynsel submitted that it is necessary to test the validity of the orders by reference to the facts and circumstances prevailing on the date of passing of the said orders, i.e., 04.08.2019. Learned senior companynsel submitted that the orders that have number been published cannot be accorded the force of law. The necessity of publication of law is a part of the rule of natural justice. Not only must the orders be published, it is also necessary that these orders be made available and accessible to the public. The State cannot refuse to produce the orders before the Court or claim any privilege. The learned senior companynsel further submitted that, numberwithstanding the expediency of the situation, the necessity of a measure must be shown by the State. The people have a right to speak their view, whether good, bad or ugly, and the State must prove that it was necessary to restrict the same. On the point of proportionality, the learned senior companynsel submitted that the test of proportionality was upheld by this Court in the case of K. S. Puttaswamy v. Union of India, 2017 10 SCC 1 hereinafter K. S. Puttaswamy Privacy 9J. and therefore the proportionality of a measure must be determined while looking at the restrictions being imposed by the State on the fundamental rights of citizens. The learned senior companynsel pointed out that it is number just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures. Mr. Sanjay Hegde, Senior Counsel for the Petitioner in W.P. Crl. No. 225 of 2019 Although this Writ Petition was withdrawn during arguments, the learned senior companynsel wished to make certain submissions regarding the issue at hand. The learned senior companynsel submitted on behalf of the Petitioner that although he and his family were law abiding citizens, yet they are suffering the effects of the restrictions. Citing the House of Lords judgment of Liversidge v. Anderson, 1941 3 All ER 338 the learned senior companynsel submitted that it was the dissent by Lord Atkin, upholding the fundamental rights of the citizens of the United Kingdom, which is number the law of the land. Mr. K. K. Venugopal, Learned Attorney General for the Union of India The learned Attorney General supported the submissions made by the Solicitor General. He submitted that the background of terrorism in the State of Jammu and Kashmir needs to be taken into account. Relying on National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 5 SCC 1, the learned Attorney General submitted that this Court while deciding the aforementioned case, has taken companynizance of the problem of terrorism in the State before. According to the learned Attorney General, keeping in mind the facts regarding cross border terrorism and internal militancy, it would have been foolish to have number taken any preventive measures in the circumstances. The necessity of the orders under Section 144, Cr.P.C. are apparent from the background facts and circumstances, when there can be huge violence if the Government did number take these kinds of measures. In fact, similar steps were taken earlier by the Government in 2016 when a terrorist was killed in the State. Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir The learned Solicitor General submitted that the first and foremost duty of the State is to ensure security and protect the citizens their lives, limbs and property. He further submitted that the facts relied on by the Petitioners and the Intervenors were incorrect, as they did number have the companyrect information about the factual position on the ground in the State of Jammu and Kashmir. The learned Solicitor General submitted that the historical background of the State of Jammu and Kashmir is necessary to be looked at to understand the measures taken by the State. The State has been a victim of both physical and digital cross border terrorism. The abrogation of Article 370 of the Constitution on 05.08.2019 was a historic step, which resulted number in the taking away of the rights of the citizens of Jammu and Kashmir, but companyferment of rights upon them which they never had. Now, with the abrogation, 106 people friendly laws have become applicable to the State of Jammu and Kashmir. The learned Solicitor General submitted that the Petitioners were incorrect to state that public movement was restricted. In fact, individual movement had never been restricted. Additionally, while schools were closed initially, they have number been reopened. Depending on the facts, circumstances and requirements of an area, restrictions were put in place which are number being relaxed gradually. On the orders passed by the Magistrates under Section 144, Cr.P.C., in their respective jurisdictional areas, the learned Solicitor General submitted that they were best placed to know the situation on the ground, and then took their respective decisions accordingly. Currently, there is nearly hundred percent relaxation of restrictions. Restrictions were being relaxed on the basis of the threat perception. Restrictions were never imposed in the Ladakh region. This fact shows that there was application of mind while passing the orders by the officers on the ground, and that there was numbergeneral clampdown, as is being suggested by the Petitioners. Further, the learned Solicitor General pointed to various figures to indicate that people were leading their ordinary lives in the State. He submitted that all newspapers, television and radio channels are functioning, including from Srinagar, where the Petitioner in W.P. C No. 1031 of 2019 is situated. The learned Solicitor General further indicated that the Government had taken certain measures to ensure that essential facilities would be available to the populace. The learned Solicitor General submitted that orders passed under Section 144, Cr.P.C. can be preventive in nature, in order to prevent danger to public safety. The Magistrate can pass the order even on the basis of personal knowledge, and the same is supposed to be a speedy mechanism. The orders passed must be companysidered keeping in mind the history and the background of the State. Relying on Babulal Parate v. State of Bombay, AIR 1960 SC 51, and Madhu Limaye v. SubDivisional Magistrate, Monghgyr, 1970 3 SCC 746, the learned Solicitor General submitted that the situation in the State of Jammu and Kashmir was such that the orders companyld be justified in view of maintenance of the security of the State. Regarding the Petitioners submission that the restrictions companyld have been imposed on specific individuals, the learned Solicitor General submitted that it was impossible to segregate, and companytrol, the troublemakers from the ordinary citizens. The learned Solicitor General submitted that there were enough facts in the knowledge of the Magistrate to pass the orders under Section 144, Cr.P.C. There was sufficient speculation on the ground to suggest that there might be a move to abrogate Article 370 of the Constitution, and they were aware of the situation on the ground. Provocative speeches and messages were being transmitted. This information is all available in the public domain. It was further submitted that the Court does number sit in appeal of the decision to impose restrictions under Section 144, Cr.P.C. and has limited jurisdiction to interfere, particularly when there are numberallegations of mala fide made against the officers and when the question involved is of national security. The level of restriction required is best left to the officers who are on the ground with the requisite information and knowledge, and the same is number to be replaced by the opinion of the Courts. With respect to the companymunications and internet shutdown, the learned Solicitor General submitted that internet was never restricted in the Jammu and Ladakh regions. Further, he submitted that social media, which allowed people to send messages and companymunicate with a number of people at the same time, companyld be used as a means to incite violence. The purpose of the limited and restricted use of internet is to ensure that the situation on the ground would number be aggravated by targeted messages from outside the companyntry. Further, the internet allows for the transmission of false news or fake images, which are then used to spread violence. The dark web allows individuals to purchase weapons and illegal substances easily. The learned Solicitor General submitted that the jurisprudence on free speech relating to newspapers cannot be applied to the internet, as both the media are different. While newspapers only allowed oneway companymunication, the internet makes twoway companymunication by which spreading of messages are very easy. The different companytext should be kept in mind by the Court while dealing with the restrictions with respect to the two media. While referring to various photographs, tweets and messages of political leaders of Kashmir, he stated that these statements are highly misleading, abrasive and detrimental to the integrity and sovereignty of India. Further, it is number possible to ban only certain websites parts of the Internet while allowing access to other parts. Such a measure was earlier attempted in 2017, but it was number successful. Lastly, the learned Solicitor General submitted that the orders passed under the Suspension Rules were passed in companypliance with the procedure in the Suspension Rules, and are being reviewed strictly in terms of the same. Some of the intervenors have supported the submissions made by the learned Attorney General and the Solicitor General, and indicated that the restrictions were necessary and in companypliance with the law. They have also submitted that numbermalcy is returning in the State of Jammu and Kashmir, and that the present petitions are number maintainable. ISSUES In line with aforesaid facts and arguments, the following questions of law arise for our companysideration Whether the Government can claim exemption from producing all the orders passed under Section 144, Cr.P.C. and other orders under the Suspension Rules? II. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution? III. Whether the Governments action of prohibiting internet access is valid? IV. Whether the imposition of restrictions under Section 144, Cr.P.C. were valid? Whether the freedom of press of the Petitioner in W.P. C No. 1031 of 2019 was violated due to the restrictions? PRODUCTION OF ORDERS The present petitions, their companytext and companyduct of the parties, have placed this Court in a peculiar situation. We have been asked to go into the question of the validity of orders, restricting movement and companymunication, passed in the State of Jammu and Kashmir by various authorities, however, the orders are number before us. The Petitioners and Intervenors claim that the orders were number available, which is why they companyld number place them on record. At the same time, while the numberavailability of orders was number denied by the RespondentState, they did number produce the said orders. In fact, when this Court by order dated 16.10.2019 asked them to produce the orders, the RespondentState placed on record only sample orders, citing difficulty in producing the numerous orders which were being withdrawn and modified on a daytoday basis. The RespondentState also claimed that the plea to produce orders by the Petitioners was an expansion of the scope of the present petitions. At the outset, a perusal of the prayers in the Writ Petitions before us should be sufficient to reject the aforementioned companytention of the RespondentState. In W.P. C No. 1164 of 2019 and I.A number 157139 in I.A. number 139555 of 2019 in W.P. C No. 1031 of 2019, a prayer has been made to issue a writ of mandamus or any other writ directing Respondent Nos. 1 and 2 to produce all orders by which movement of all persons has been restricted since 04.08.2019. Further, production of all orders by way of which companymunication has been blocked in State of Jammu and Kashmir has also been sought. On the obligation of the State to disclose information, particularly in a writ proceeding, this Court in Ram Jethmalani v. Union of India, 2011 8 SCC 1, observed as follows In order that the right guaranteed by clause 1 of Article 32 be meaningful, and particularly because such petitions seek the protection of fundamental rights, it is imperative that in such proceedings the petitioners are number denied the information necessary for them to properly articulate the case and be heard, especially where such information is in the possession of the State. emphasis supplied We may numbere that there are two separate types of reasoning that mandates us to order production of the orders passed by the authorities in this case. First, Article 19 of the Constitution has been interpreted to mandate right to information as an important facet of the right to freedom of speech and expression. A democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know. Moreover, fundamental rights itself companynote a qualitative requirement wherein the State has to act in a responsible manner to uphold Part III of the Constitution and number to take away these rights in an implied fashion or in casual and cavalier manner. Second, there is numberdispute that democracy entails free flow of information. There is number only a numbermative expectation under the Constitution, but also a requirement under natural law, that numberlaw should be passed in a clandestine manner. As Lon L. Fuller suggests in his celebrated article there can be numbergreater legal monstrosity than a secret statute.1 In this regard, Jeremy Bentham spoke about open justice as the keenest spur to exertion. In the same companytext, James Madison stated a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern the ignorance and a people 1Lon L. Fuller, Positivism and Fidelity to Law A Reply to Professor Hart, The Harvard Law Review, 71 4 , 630, 651 February, 1958. who mean to be their own Governors must arm themselves with the power which knowledge gives. As a general principle, on a challenge being made regarding the curtailment of fundamental rights as a result of any order passed or action taken by the State which is number easily available, the State should take a proactive approach in ensuring that all the relevant orders are placed before the Court, unless there is some specific ground of privilege or companyntervailing public interest to be balanced, which must be specifically claimed by the State on affidavit. In such cases, the Court companyld determine whether, in the facts and circumstances, the privilege or public interest claim of the State overrides the interests of the Petitioner. Such portion of the order can be redacted or such material can be claimed as privileged, if the State justifies such redaction on the grounds, as allowed under the law. In the present case, while the State initially claimed privilege, it subsequently dropped the claim and produced certain sample orders, citing difficulty in producing all the orders before this Court. In our opinion, this is number a valid ground to refuse production of orders before the Court. FUNDAMENTAL RIGHTS UNDER PART III AND RESTRICTIONS THEREOF The petitioners have companytended that the impugned restrictions have affected the freedom of movement, freedom of speech and expression and right to free trade and avocation. In this companytext, we have to first examine the nature of the fundamental rights provided under the Constitution. The nature of fundamental rights under Part III of the Constitution is well settled. The fundamental rights are prescribed as a negative list, so that numberperson companyld be denied such right until the Constitution itself prescribes such limitations. The only exception to the aforesaid formulation is Article 21A of the Constitution, which is a positive right that requires an active effort by the companycerned government to ensure that the right to education is provided to all children up to the age of 16 years. The positive prescription of freedom of expression will result in different companysequences which our own Constitution has number entered into. Having different social and economic backgrounds and existing on a different scale of development, the human rights enshrined therein have taken a different role and purpose. The framers of the Indian Constitution were aware of the situation of India, including the socioeconomic companyts of such proactive duty, and thereafter took an informed decision to restrict the application of fundamental rights in a negative manner. This crucial formulation is required to be respected by this Court, which has to uphold the companystitutional morality behind utilization of such negative prescriptions. Now, we need to companycern ourselves about the freedom of expression over the medium of internet. There is numbergainsaying that in todays world the internet stands as the most utilized and accessible medium for exchange of information. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the usage of internet. At this point it is important to numbere the argument of Mr. Vinton Cerf, one of the fathers of the internet. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right.2 Technology, in his view, is an enabler of rights and number a right in and of itself. He distinguishes 2 Vinton G. Cerf, Internet Access is number a Human Right, The New York Times January 04, 2012 . between placing technology among the exalted category of other human rights, such as the freedom of companyscience, equality etc. With great respect to his opinion, the prevalence and extent of internet proliferation cannot be undermined in ones life. Law and technology seldom mix like oil and water. There is a companysistent criticism that the development of technology is number met by equivalent movement in the law. In this companytext, we need to numbere that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet. We need to distinguish between the internet as a tool and the freedom of expression through the internet. There is numberdispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the companytent of the right number can it justify its denial. refer to Secretary, Ministry of Information Broadcasting Government of India v. Cricket Association of Bengal, 1995 2 SCC 161 Shreya Singhal v. Union of India, 2015 5 SCC 1. The development of the jurisprudence in protecting the medium for expression can be traced to the case of Indian Express v. Union of India, 1985 1 SCC 641, wherein this Court had declared that the freedom of print medium is companyered under the freedom of speech and expression. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, 1988 3 SCC 410, it was held that the right of citizens to exhibit films on Doordarshan, subject to the terms and companyditions to be imposed by the Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article 19 1 a , which can be curtailed only under circumstances set out under Article 19 2 . Further, this Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information Broadcasting, Government of India supra . In this companytext, we may numbere that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. Expression through the internet has gained companytemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19 1 a and accordingly, any restriction on the same must be in accordance with Article 19 2 of the Constitution. In this companytext, we need to numbere that the internet is also a very important tool for trade and companymerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is numberdoubt that there are certain trades which are companypletely dependent on the internet. Such a right of trade through internet also fosters companysumerism and availability of choice. Therefore, the freedom of trade and companymerce through the medium of the internet is also companystitutionally protected under Article 19 1 g , subject to the restrictions provided under Article 19 6 . None of the companynsels have argued for declaring the right to access the internet as a fundamental right and therefore we are number expressing any view on the same. We are companyfining ourselves to declaring that the right to freedom of speech and expression under Article 19 1 a , and the right to carry on any trade or business under 19 1 g , using the medium of internet is companystitutionally protected. Having explained the nature of fundamental rights and the utility of internet under Article 19 of the Constitution, we need to companycern ourselves with respect to limitations provided under the Constitution on these rights. With respect to the freedom of speech and expression, restrictions are provided under Article 19 2 of the Constitution, which reads as under Nothing in sub clause a of clause 1 shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right companyferred by the said subclause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to companytempt of companyrt, defamation or incitement to an offence. The right provided under Article 19 1 has certain exceptions, which empowers the State to impose reasonable restrictions in appropriate cases. The ingredients of Article 19 2 of the Constitution are that The action must be sanctioned by law The proposed action must be a reasonable restriction Such restriction must be in furtherance of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to companytempt of companyrt, defamation or incitement to an offence. At the outset, the imposition of restriction is qualified by the term reasonable and is limited to situations such as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or companytempt of Court, defamation or incitement to an offence. Reasonability of a restriction is used in a qualitative, quantitative and relative sense. It has been argued by the companynsel for the Petitioners that the restrictions under Article 19 of the Constitution cannot mean companyplete prohibition. In this companytext we may numbere that the aforesaid companytention cannot be sustained in light of a number of judgments of this Court wherein the restriction has also been held to include companyplete prohibition in appropriate cases. Madhya Bharat Cotton Association Ltd. v. Union of India, AIR 1954 SC 634, Narendra Kumar v. Union of India, 1960 2 SCR 375, State of Maharashtra v. Himmatbhai Narbheram Rao, 1969 2 SCR 392, Sushila Saw Mill v. State of Orissa, 1995 5 SCC 615, Pratap Pharma Pvt. Ltd. v. Union of India, 1997 5 SCC 87 and Dharam Dutt v. Union of India, 2004 1 SCC 712 The study of aforesaid case law points to three propositions which emerge with respect to Article 19 2 of the Constitution. i Restriction on free speech and expression may include cases of prohibition. ii There should number be excessive burden on free speech even if a companyplete prohibition is imposed, and the government has to justify imposition of such prohibition and explain as to why lesser alternatives would be inadequate. iii Whether a restriction amounts to a companyplete prohibition is a question of fact, which is required to be determined by the Court with regard to the facts and circumstances of each case. refer to State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, 2005 8 SCC 534. The second prong of the test, wherein this Court is required to find whether the imposed restriction prohibition was least intrusive, brings us to the question of balancing and proportionality. These companycepts are number a new formulation under the Constitution. In various parts of the Constitution, this Court has taken a balancing approach to harmonize two companypeting rights. In the case of Minerva Mills Ltd. v. Union of India, 1980 2 SCC 591 and Sanjeev Coke Manufacturing Company M s Bharat Coking Coal Ltd., 1983 1 SCC 147, this Court has already applied the balancing approach with respect to fundamental rights and the directive principles of State Policy. Before, we delve into the nuances of restriction as occurring under Article 19 2 of the Constitution, we need to observe certain facts and circumstances in this case. There is numberdoubt that Jammu and Kashmir has been a hot bed of terrorist insurgencies for many years. In this light, we may numbere the States submission that since 1990 to 2019 there have been 71,038 recorded incidents of terrorist violence, 14,038 civilians have died, 5292 security personnel were martyred, 22,536 terrorists were killed. The geopolitical struggle cannot be played down or ignored. In line with the aforesaid requirement, we may numbere that even the broadest guarantee of free speech would number protect the entire gamut of speech. The question which begs to be answered is whether there exists a clear and present danger in restricting such expression. Modern terrorism heavily relies on the internet. Operations on the internet do number require substantial expenditure and are number traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public Policy, Pepperdine University, states in his article about propaganda and the use of internet in the following manner Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that has farreaching 3 Gregory S. McNeal, Cyber Embargo Countering the Internet Jihad, 39 Case W. Res. J. Intl L. 789 2007 . companysequences. Because internet postings are number regulated sources of news, they can reflect any viewpoint, truthful or number. Thus, readers tend to companysider internet items to be fact, and stories can go unchecked for some time. Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda. Susan W. Brenner,4 NCR Distinguished Professor of Law and Technology, University of Dayton School of Law, also numberes that the traditional approach has number worked satisfactorily on terrorism due to the proliferation of the internet. It is the companytention of the respondents that the restriction on the freedom of speech was imposed due to the fact that there were national security issues over and above a law and order situation, wherein there were problems of infiltration and support from the other side of the border to instigate violence and terrorism. The learned Solicitor General pointed out that the war on terrorism requires imposition of such restriction so as to nip the problem of terrorism in the bud. He submitted that in earlier times, sovereignty and integrity of a State was challenged only on occurrence of war. In some cases, there have been instances 4 Susan W. Brenner, Why the Law Enforcement Model is a Problematic Strategy for Dealing with Terrorist Activity Online, 99 Am. Socy Intl. L. Proc. 108 2005 . where the integrity of the State has been challenged by secessionists. However, the traditional companyceptions of warfare have undergone an immense change and number it has been replaced by a new term called war on terror. This war, unlike the earlier ones, is number limited to territorial fights, rather, it transgresses into other forms affecting numbermal life. The fight against terror cannot be equated to a law and order situation as well. In this light, we observe that this companyfusion of characterising terrorism as a war stricto sensu or a numbermal law and order situation has plagued the submission of the respondent Government and we need to carefully companysider such submissions. Before analysing the restrictions imposed on the freedom of speech and expression in the Indian companytext, we need to have a broad analysis of the state of affairs in the United States of America hereinafter US where freedom of expression under the First Amendment is treated to be very significant with the US being perceived to be one of the liberal companystituencies with respect to free speech jurisprudence. However, we need to refer to the companytext and state of law in the US, before we can understand such an assertion. During the US civil war, a dramatic companyfrontation over free speech arose with respect to the speech of Clement L. Vallandigham, who gave a speech calling the civil war wicked, cruel and unnecessary. He urged the citizens to use ballot boxes to hurl President Lincoln from his throne. As a reaction, Union soldiers arrested Mr. Vallandigham and he had to face a five member military companymission which charged him with declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the government in its efforts to suppress an unlawful rebellion. Ex parte Vallandigham, 28 F. Cas. 874 1863 The companymission found Mr. Vallandigham guilty and imposed imprisonment during the war. The aforesaid imprisonment was met with demonstrations and publications calling such imprisonment as a crime against the US Constitution. President Lincoln, having regard to the US Constitution, companymuted the imprisonment and companyverted the same to banishment. He justified the aforesaid act by stating that banishment was more humane and a less disagreeable means of securing least restrictive measures. During World War I, many within the US had strong feelings against the war and the draft imposed by the administration of President Woodrow Wilson. During this period, the US enacted the Espionage Act, 1917 which penalised any person who wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services. In any case, in Abraham United States, 250 U.S. 616 1919 , Justice Holmes even in his dissent observed as under I do number doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States companystitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States companystitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do number exist at other times. emphasis supplied The Second World War was also riddled with instances of tussle between the First Amendment and national security issues. An instance of the same was the companyviction of William Dudley Pelley, under the Espionage Act, 1917, which the Supreme Court of United States refused to review. During the Cold War, the attention of the American Congress was on the increase of companymunism. In 1954, Congress even enacted the Communist Control Act, which stripped the Communist party of all rights, privileges and immunities. During this time, Dennis United States, 341 US 494 1951 , is an important precedent. Sections 2 a 1 , 2 a 3 and 3 of the Alien Registration Act, 1940 made it unlawful for any person to knowingly or wilfully advocate with the intent of the overthrowing or destroying the Government of the United States by force or violence, to organize or help to organize any group which does so, or to companyspire to do so. The Petitioner in the aforementioned case challenged the aforesaid provision on the ground that these provisions violated the First Amendment. The US Supreme Court held An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is number an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and companysiderations. During the Vietnam war, the US Supreme Court had to deal with the case of Brandenburg v. Ohio, 395 US 444 1969 , wherein the Court overruled Dennis supra and held that the State cannot punish advocacy of unlawful companyduct, unless it is intended to incite and is likely to incite imminent lawless action. There is numberdoubt that the events of September 2011 brought new challenges to the US in the name of war on terror. In this companytext, Attorney General John Ashcroft stated that To those who scare peaceloving people with phantoms of lost liberty, my message is this Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to Americas enemies.5 However, Bruce Ackerman, in his article, 6 states that The war on terrorism has paid enormous political dividends but that does number make it a companypelling legal companycept. War is traditionally defined as a state of belligerency between sovereigns The selective adaptation of doctrines dealing with war predictably leads to sweeping incursions on fundamental liberties. 5 Senate Judiciary Committee Hearing on AntiTerrorism Policy, 106th Cong. Dec. 6, 2001 testimony of Attorney General John Ashcroft 6 Ackerman, Bruce, The Emergency Constitution, Faculty Scholarship Series, 113 2004 . From the aforesaid study of the precedents and facts, we may numbere that the law in the US has undergone lot of changes companycerning dissent during war. The position that emerges is that any speech which incites imminent violence does number enjoy companystitutional protection. It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19 1 a if the need be so, in companypliance with the requirements under Article 19 2 . It is in this companytext, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict. The requirement of balancing various companysiderations brings us to the principle of proportionality. In the case of K. S. Puttaswamy Privacy9J. supra , this Court observed 310Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is number disproportionate to the purpose of the law Further, in the case of CPIO v Subhash Chandra Aggarwal, 2019 SCC OnLine SC 1459, the meaning of proportionality was explained as 225It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the companyntervailing interest in question At the same time, we need to numbere that when it companyes to balancing national security with liberty, we need to be cautious. In the words of Lucia Zedner7 Typically, companyflicting interests are said to be balanced as if there were a selfevident weighting of or priority among them. Yet rarely are the particular interests spelt out, priorities made explicitly, or the process by which a weight is achieved made clear. Balancing is presented as a zerosum game in which more of one necessarily means less of the other Although beloved of companystitutional lawyers and political theorists, the experience of criminal justice is that balancing is a politically dangerous metaphor unless careful regard is given to what is at stake. The proportionality principle, can be easily summarized by Lord Diplocks aphorism you must number use a steam hammer to crack a nut, if a nutcracker would do? refer to R v. Goldsmith, 1983 1 7Lucia Zedner, Securing Liberty in the Face of Terror Reflections from Criminal Justice, 2005 32 Journal of Law and Society 510. WLR 151, 155 Diplock J . In other words, proportionality is all about means and ends. The suitability of proportionality analysis under Part III, needs to be observed herein. The nature of fundamental rights has been extensively companymented upon. One view is that the fundamental rights apply as rules, wherein they apply in an allornothing fashion. This view is furthered by Ronald Dworkin, who argued in his theory that companycept of a right implies its ability to trump over a public good.8 Dworkins view necessarily means that the rights themselves are the end, which cannot be derogated as they represent the highest numberm under the Constitution. This would imply that if the legislature or executive act in a particular manner, in derogation of the right, with an object of achieving public good, they shall be prohibited from doing so if the aforesaid action requires restriction of a right. However, while such an approach is often taken by American Courts, the same may number be companypletely suitable in the Indian companytext, having regard to the structure of Part III which companyes with inbuilt restrictions. 8Ronald Dworkin, Rights as Trumps in Jeremy Waldron ed. , Theories of Rights 1984 153 hereinafter Dworkin, Rights as is trumps . However, there is an alternative view, held by Robert Alexy, wherein the fundamental rights are viewed as principles, 9 wherein the rights are portrayed in a numbermative manner. Rules are numberms that are always either fulfilled or number whereas principles are numberms which require that something be realized to the greatest extent possible given the legal and factual possibilities.10 This characterisation of principles has implications for how to deal with companyflicts between them it means that where they companyflict, one principle has to be weighed against the other and a determination has to be made as to which has greater weight in this companytext.11 Therefore, he argues that nature of principles implies the principle of proportionality. 12 The doctrine of proportionality is number foreign to the Indian Constitution, companysidering the use of the word reasonable under Article 19 of the Constitution. In a catena of judgments, this Court has held reasonable restrictions are indispensable for the realisation of freedoms enshrined under Article 19, as they are what ensure that enjoyment of rights is number arbitrary or excessive, so as to affect public interest. This Court, while sitting 9R. Alexy, A Theory of Constitutional Rights Oxford, Oxford University Press, 2002 . 10Ibid at page 47. 11Ibid, page 50. 12Ibid, page 66. in a Constitution Bench in one of its earliest judgments in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 interpreted limitations on personal liberty, and the balancing thereof, as follows The phrase reasonable restriction companynotes that the limitation imposed on a person in enjoyment of the right should number be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a companyrse which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to companytain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 1 g and the social companytrol permitted by clause 6 of Article 19, it must be held to be wanting in that quality. emphasis supplied This Court, in State of Madras v. V.G. Row, AIR 1952 SC 196, while laying down the test of reasonableness, held that It is important in this companytext to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and numberabstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing companyditions at the time, should all enter into the judicial verdict. emphasis supplied A Constitution Bench of this Court in Mohammed Faruk v. State of Madhya Pradesh, 1969 1 SCC 853 while determining rights under Article 19 1 g of the Constitution, discussed the doctrine of proportionality in the aforesaid terms The Court must in companysidering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizens freedom the possibility of achieving the object by imposing a less drastic restraint or that a less drastic restriction may ensure the object intended to be achieved. emphasis supplied In the case of Om Kumar v. Union of India, 2001 2 SCC 386 the principle of proportionality, in light of administrative orders, was explained as follows By proportionality, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or leastrestrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe. Under the principle, the companyrt will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or number is for the companyrt. That is what is meant by proportionality. emphasis supplied See also State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337 Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, 1982 1 SCC 39 Recently, this Court in Modern Dental College Research Centre v. State of Madhya Pradesh, 2016 7 SCC 353 has held that numberconstitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified. The Court held as follows It is number almost accepted that there are numberabsolute companystitutional rights. Though, debate on this vexed issue still companytinues and some companystitutional experts claim that there are certain rights, albeit very few, which can still be treated as absolute. Examples given are a Right to human dignity which is inviolable, b Right number to be subjected to torture or to inhuman or degrading treatment or punishment. Even in respect of such rights, there is a thinking that in larger public interest, the extent of their protection can be diminished. However, so far such attempts of the States have been thwarted by the judiciary. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause 1 of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This numberion accepts the modern companystitutional theory that the companystitutional rights are related. This relativity means that a companystitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenonof both the right and its limitation in the Constitution exemplifies the inherent tension between democracys two fundamental elements emphasis supplied In the aforesaid case, this Court was posed with a dilemma as to how to treat companypeting rights. The Court attempted to resolve the companyflict by holding that rights and limitations must be interpreted harmoniously so as to facilitate companyxistence. This Court observed therein 62 On the one hand is the rights element, which companystitutes a fundamental companyponent of substantive democracy on the other hand is the people element, limiting those very rights through their representatives. These two companystitute a fundamental companyponent of the numberion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is number resolved by eliminating the losing facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the companypeting principles. This is one of the expressions of the multifaceted nature of democracy. Indeed, the inherent tension between democracys different facets is a companystructive tension. It enables each facet to develop while harmoniously companyxisting with the others. The best way to achieve this peaceful companyxistence is through balancing between the companypeting interests. Such balancing enables each facet to develop alongside the other facets, number in their place. This tension between the two fundamental aspectsrights on the one hand and its limitation on the other handis to be resolved by balancing the two so that they harmoniously companyxist with each other. This balancing is to be done keeping in mind the relative social values of each companypetitive aspects when companysidered in proper companytext. emphasis supplied The next companyundrum faced by the Court was in achieving the requisite balance, the solution for which was derived from the principle of proportionality. The eminent companystitutional jurist, Kai Mller states that the proportionality principle is the doctrinal tool which guides Judges through the process of resolving these companyflicts.13 One of the theories of proportionality widely relied upon by most theorists is the version developed by the German Federal Constitutional Court. The aforesaid doctrine lays down a four pronged test wherein, first, it has to be analysed as to whether the measure restricting the rights serves a legitimate goal also called as legitimate goal test , then it has to be analysed whether the measure is a suitable means of furthering this goal the rational companynection stage , next it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy the necessity test and at last, it should be analysed if such a measure had a disproportionate impact on the rightholder balancing stage . One important 13Kai Mller, The Global Model of Constitutional Rights Oxford, Oxford University Press, 2012 . feature of German test is the last stage of balancing, which determines the outcome as most of the important issues are pushed to the balancing stage and the same thereby dominates the legal analysis. Under this approach, any goal which is legitimate will be accepted as usually a lesser restrictive measure might have the disadvantage of being less effective and even marginal companytribution to the goal will suffice the rational companynection test.14 The aforesaid test needs to be companytrasted with its Canadian companynterpart also known as the Oakes test. According to the said doctrine, the object of the measure must be companypelling enough to warrant overriding of the companystitutionally guaranteed freedom a rational nexus must exist between such a measure and the object sought to be achieved the means must be least restrictive and lastly, there must be proportionality between the effects of such measure and the object sought to be achieved. This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court of Canada in R. v. Oakes, 1986 1 SCR 103 Can SC, in the following words at p. 138 14Kai Mller, Constructing the Proportionality Test An Emerging Global Conversation, Reasoning Rights Comparative Judicial Engagement Hart Publishing, 2014 . To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a companystitutionally protected right or freedom Second the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test Although the nature of the proportionality test will vary depending on the circumstances, in each case companyrts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important companyponents of a proportionality test. First, the measures adopted must be rationally companynected to the objective. Second, the means should impair as little as possible the right or freedom in question Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. emphasis supplied As can be seen, there exists substantial difference in both approaches, as the Oakes test, instead of requiring any legitimate goal, demands the same to be companypelling enough to warrant the limitation of companystitutional rights. Additionally, while the German necessity test calls for a lesser restrictive measure which is equivalently effective, the need for effectiveness has been done away with in the Oakes test wherein the requirement of least infringing measure has been stipulated. It is also imperative for us to place reliance on Aharon Baraks seminal book15 on proportionality upon which Dr A.K. Sikri, J. placed reliance while expounding the doctrine of proportionality in Modern Dental College case supra as follows 60. a limitation of a companystitutional right will be companystitutionally permissible if it is designated for a proper purpose the measures undertaken to effectuate such a limitation are rationally companynected to the fulfilment of that purpose the measures undertaken are necessary in that there are numberalternative measures that may similarly achieve that same purpose with a lesser degree of limitation and finally there needs to be a proper relation proportionality stricto sensu or balancing between the importance of achieving the proper purpose and the social importance of preventing the limitation on the companystitutional right. emphasis supplied 15Aharon Barak, Proportionality Constitutional Rights and Their Limitation Cambridge University Press, 2012 In Modern Dental College case supra , this Court also went on to analyse that the principle of proportionality is inherently embedded in Indian Constitution under the realm of the doctrine of reasonable restrictions and that the same can be traced under Article 19. The relevant extracts are placed below We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause 1 along with clause 6 thereof. While defining as to what companystitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the subclauses of clause 1 of Article 19 and the social companytrol permitted by any of the clauses 2 to 6 . It is held that the expression reasonable companynotes that the limitation imposed on a person in the enjoyment of the right should number be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to achieve, and must number go in excess of that object see P.P. Enterprises v. Union of India, 1982 2 SCC 33 . At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and number from the point of view of the persons upon whom the restrictions are imposed or upon abstract companysiderations see Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731 . emphasis supplied Thereafter, a companyprehensive doctrine of proportionality in line with the German approach was propounded by this Court in the Modern Dental College case supra wherein the Court held that In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here companyes the companycept of proportionality, which is a proper criterion. To put it pithily, when a law limits a companystitutional right, such a limitation is companystitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally companynected to the purpose, and such measures are necessary The exercise which, therefore, is to be taken is to find out as to whether the limitation of companystitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of companypetitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests. emphasis supplied While some scholars such as Robert Alexy 16 call for a strong interpretation of the necessity stage as it has direct impact upon the realisation and optimisation of companystitutional rights while others such as David Bilchitz 17 found significant problems with this approach. First, Bilchitz focuses on the issues arising out of both the German test and the Oakes test, wherein the former treats all policies to be necessary by justifying that the available alternatives may number be equally effective, while the latter applies the minimal impairment test narrowing the companystitutionally permissible policies and places a strong burden on the Government to justify its policies. Therefore, Bilchitz argues that if the necessity stage is interpreted strictly, legislations and policies numbermatter how well intended will fail to pass the proportionality inquiry if any other slightly less drastic measure exists. Bilchitz, therefore, indicates that Alexys companyclusion may be too quick. 16Robert Alexy, A Theory of Constitutional Rights Oxford, Oxford University Press, 2002 47. 17David Bilchitz, Necessity and Proportionality Towards A Balanced Approach? in L. Lazarus, C. McCrudden and N. Bowles eds. , Reasoning Rights, 41 2014 . Moreover, this also leads to the issue regarding the doctrine of separation of power, as Courts would often substitute the views of the legislature in deciding what is the least restrictive measure. Taking the aforesaid issues into companysideration, Bilchitz proposed a moderate interpretation of the necessity test wherein Courts may numberlonger be required to assess policies and measures against impractical and unreasonable standards. He states that necessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. That process thus requires companyrts to reason through the various stages of the moderate interpretation of necessity.18 He therefore recommends a fourstep inquiry which is listed below19 MN1 All feasible alternatives need to be identified, with companyrts being explicit as to criteria of feasibility MN2 The relationship between the government measure under companysideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined. An attempt must be made to retain only those alternatives to the measure that realise the objective in a real and substantial manner 18 Ibid, page 61. 19Ibid, page 61. MN3 The differing impact of the measure and the alternatives identified in MN2 upon fundamental rights must be determined, with it being recognised that this requires a recognition of approximate impact and MN4 Given the findings in MN2 and MN3, an overall companyparison and balancing exercise must be undertaken between the measure and the alternatives. A judgement must be made whether the government measure is the best of all feasible alternatives, companysidering both the degree to which it realises the government objective and the degree of impact upon fundamental rights the companyparative companyponent . Admittedly, fundamental rights may number be absolute, however, they require strong protection, thereby mandating a sensible necessity test as the same will prevent the fundamental right from becoming either absolute or to be diminished. Bilchitz, describes the aforesaid test to be neither factual number mechanical, but rather numbermative and qualitative. He states that the key purpose of the necessity enquiry is to offer an explicit companysideration of the relationship between means, objectives and rights Failure to companyduct the necessity enquiry with diligence, however, means that a government measure can escape close scrutiny in relation to both the realisation of the objective and its impact upon fundamental rights.20 Taking into companysideration the aforesaid analysis, Dr. Sikri, J., in S. Puttaswamy Retired v. Union of India, 2019 1 SCC 1 hereinafter K.S. Puttaswamy Aadhaar 5J. reassessed the test laid down in Modern Dental College Case supra which was based on the German Test and modulated the same as against the tests laid down by Bilchitz. Therein this Court held that In Modern Dental College Research Centre Modern Dental College Research Centre v. State of M.P., 2016 7 SCC 353, four subcomponents of proportionality which need to be satisfied were taken numbere of. These are A measure restricting a right must have a legitimate goal legitimate goal stage . It must be a suitable means of furthering this goal suitability or rational companynection stage . There must number be any less restrictive but equally effective alternative necessity stage . The measure must number have a disproportionate impact on the rightholder balancing stage . This has been approved in K.S. Puttaswamy K.S. Puttaswamy v. Union of India, 2017 10 SCC 1 as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of companyrse, while undertaking this exercise it has also to be 20Ibid, 62 seen that the legitimate goal must be of sufficient importance to warrant overriding a companystitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College Research Centre Modern Dental College Research Centre v. State of M.P., 2016 7 SCC 353 and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted. emphasis supplied Dr. Chandrachud, J., in K.S. Puttaswamy Aadhaar5J. supra , made observations on the test of proportionality that needs to be satisfied under our Constitution for a violation of the right to privacy to be justified, in the following words 1288. In K.S. Puttaswamy v. Union of India K.S. Puttaswamy v. Union of India, 2017 10 SCC 1, one of us Chandrachud, J. , speaking for four Judges, laid down the tests that would need to be satisfied under our Constitution for violations of privacy to be justified. This included the test of proportionality SCC p. 509, para 325 A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the companytext of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of i legality, which postulates the existence of law need, defined in terms of a legitimate State aim and iii proportionality which ensures a rational nexus between the objects and the means adopted to achieve them. The third principle iii above adopts the test of proportionality to ensure a rational nexus between the objects and the means adopted to achieve them. The essential role of the test of proportionality is to enable the companyrt to determine whether a legislative measure is disproportionate in its interference with the fundamental right. In determining this, the companyrt will have regard to whether a less intrusive measure companyld have been adopted companysistent with the object of the law and whether the impact of the encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. The proportionality standard must be met by the procedural and substantive aspects of the law. Sanjay Kishan Kaul, J., in his companycurring opinion, suggested a fourpronged test as follows SCC p. 632, para 638 The action must be sanctioned by law The proposed action must be necessary in a democratic society for a legitimate aim The extent of such interference must be proportionate to the need for such interference There must be procedural guarantees against abuse of such interference. emphasis supplied After applying the aforesaid doctrine in deciding the companystitutional validity of the Aadhaar scheme, Dr. Chandrachud, J., in the K.S. Puttaswamy Aadhaar5J. case supra , reiterated the fundamental precepts of doctrine of proportionality in relation to protection of privacy interests while dealing with personal data 1324. The fundamental precepts of proportionality, as they emerge from decided cases can be formulated thus 1324.1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim 1324.2. The justification for rightsinfringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational companynection between those measures, the situation in fact and the object sought to be achieved 1324.3. The measures must be necessary to achieve the object and must number infringe rights to an extent greater than is necessary to fulfil the aim 1324.4. Restrictions must number only serve legitimate purposes they must also be necessary to protect them and 1324.5. The State must provide sufficient safeguards relating to the storing and protection of centrally stored data. In order to prevent arbitrary or abusive interference with privacy, the State must guarantee that the companylection and use of personal information is based on the companysent of the individual that it is authorised by law and that sufficient safeguards exist to ensure that the data is only used for the purpose specified at the time of companylection. Ownership of the data must at all times vest in the individual whose data is companylected. The individual must have a right of access to the data companylected and the discretion to opt out. emphasis supplied This is the current state of the doctrine of proportionality as it exists in India, wherein proportionality is the key tool to achieve judicial balance. But many scholars are number agreeable to recognize proportionality equivalent to that of balancing.21 In view of the aforesaid discussion, we may summarize the requirements of the doctrine of proportionality which must be followed by the authorities before passing any order intending on restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a measure intended at imposing restrictions must be determined. It ought to be numbered that such goal must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of such a measure depends on its implication upon the fundamental rights and the necessity of such measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be resorted to by the State, taking into companysideration the facts and circumstances. Lastly, since the order has serious implications on the fundamental rights of the 21Julian Rivers, Proportionality and Variable Intensity of Review, 2006 65 C.L.J. 174 hereinafter Rivers, Proportionality Martin Luteran, Towards Proportionality as a Proportion Between Means and Ends in Cian C. Murphy and Penny Green eds. , Law and Outsiders Norms, Processes and Othering in the 21st Century 2011 hereinafter Luteran, Towards Proportionality see also the companytribution of Alison L. Young in Chapter 3 of this volume. affected parties, the same should be supported by sufficient material and should be amenable to judicial review. The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to companybat an emergent situation. To companysider the immediate impact of restrictions upon the realization of the fundamental rights, the decision maker must prioritize the various factors at stake. Such attribution of relative importance is what companystitutes proportionality. It ought to be numbered that a decision which curtails fundamental rights without appropriate justification will be classified as disproportionate. The companycept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the companysideration of appropriateness, necessity and the least restrictive measure before being imposed. In this companytext, we need to numbere that the Petitioners have relied on a recent judgment of the High Court of Hong Kong, in Kwok Wing Hang and Ors. v. Chief Executive in Council, 2019 HKCFI 2820 to state that the Hong Kong High Court has utilised the principle to declare the antimask law as unconstitutional. In any case, we need number companyment on the law laid down therein, as this Court has independently propounded the test of proportionality as applicable in the Indian companytext. However, we may just point out that the proportionality test needs to be applied in the companytext of facts and circumstances, which are very different in the case at hand. Having observed the law on proportionality and reasonable restrictions, we need to companye back to the application of restrictions on the freedom of speech over the internet. The respondentState has vehemently opposed selective access to internet services based on lack of technology to do the same. If such a companytention is accepted, then the Government would have a free pass to put a companyplete internet blockage every time. Such companyplete blocking prohibition perpetually cannot be accepted by this Court. However, there is ample merit in the companytention of the Government that the internet companyld be used to propagate terrorism thereby challenging the sovereignty and integrity of India. This Court would only observe that achievement of peace and tranquillity within the erstwhile State of Jammu and Kashmir requires a multifaceted approach without excessively burdening the freedom of speech. In this regard the Government is required to companysider various options under Article 19 2 of the Constitution, so that the brunt of exigencies is decimated in a manner which burdens freedom of speech in a minimalist manner. Having discussed the general companystitutional ambit of the fundamental rights, proportionality and reasonable restrictions, and a specific discussion on freedom of expression through the internet and its restriction under Article 19 2 , we number need to analyse the application of the same in the present case. INTERNET SHUTDOWN Having observed the substantive law companycerning the right to internet and the restrictions that can be imposed on the same, we need to turn our attention to the procedural aspect. It must be numbered that although substantive justice under the fundamental rights analysis is important, procedural justice cannot be sacrificed on the altar of substantive justice. There is a need for procedural justice in cases relating to restrictions which impact individuals fundamental rights as was recognized by this Court in the case of Maneka Gandhi v. Union of India, 1978 1 SCC 248 and the K. S. Puttaswamy Privacy9J. case supra . The procedural mechanism companytemplated for restrictions on the Internet, is twofold first is companytractual, relating to the companytract signed between Internet Service Providers and the Government, and the second is statutory, under the Information Technology Act, 2000, the Criminal Procedure Code, 1973 and the Telegraph Act. In the present case, we are companycerned only with the statutory scheme available, particularly under the Telegraph Act, and we will therefore companyfine our discussion mostly to the same. However, as it would be apposite to distinguish between the different statutory mechanisms, we would touch upon these cursorily. Section 69A of the Information Technology Act, 2000 read with the Information Technology Procedures and Safeguards for Blocking for Access of Information by Public Rules, 2009 allows blocking of access to information. This Court, in the Shreya Singhal case supra , upheld the companystitutional validity of this Section and the Rules made thereunder. It is to be numbered however, that the field of operation of this section is limited in scope. The aim of the section is number to restrict block the internet as a whole, but only to block access to particular websites on the internet. Recourse cannot, therefore, be made by the Government to restrict the internet generally under this section. Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, Cr.P.C., a general provision granting wide powers to the Magistrates specified therein to pass orders in cases of apprehended danger. In 2015, the High Court of Gujarat, in the case of Gaurav Sureshbhai Vyas v. State of Gujarat, in Writ Petition PIL No. 191 of 2015, companysidered a challenge to an order under Section 144, Cr.P.C. blocking access to mobile internet services in the State of Gujarat. The High Court of Gujarat, vide order dated 15.09.2015, upheld the restriction imposed by the Magistrate under Section 144, Cr.P.C. While the Court did number undertake a fullfledged discussion of the power of the Magistrate to issue such restrictions under Section 144, Cr.P.C., the Court observed as follows Under Section 144 of the Code, directions may be issued to certain persons who may be the source for extending the facility of internet access. Under the circumstances, we do number find that the companytention raised on behalf of the petitioner that the resort to only Section 69A was available and exercise of power under Section 144 of the Code was unavailable, can be accepted. emphasis supplied A Special Leave Petition was filed against the above judgment of the Gujarat High Court, being SLP C No. 601 of 2016, which was dismissed by this Court in limine on 11.02.2016. The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. With the promulgation of the Suspension Rules, the States are using the aforesaid Rules to restrict telecom services including access to the internet. The Suspension Rules lay down certain safeguards, keeping in mind the fact that an action under the same has a large effect on the fundamental rights of citizens. It may be mentioned here that we are number companycerned with the companystitutionality of the Suspension Rules, and arguments on the same were number canvassed by either side. As such, we are limiting our discussion to the procedure laid down therein. Rule 2 lays down the procedure to be followed for the suspension of telecom services, and merits reproduction in its entirety 2. 1 Directions to suspend the telecom services shall number be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government incharge of the Home Department in the case of a State Government hereinafter referred to as the companypetent authority , and in unavoidable circumstances, where obtaining of prior direction is number feasible, such order may be issued by an officer, number below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or the State Home Secretary, as the case may be Provided that the order for suspension of telecom services, issued by the officer authorised by the Union Home Secretary or the State Home Secretary, shall be subject to the companyfirmation from the companypetent authority within 24 hours of issuing such order Provided further that the order of suspension of telecom services shall cease to exist in case of failure of receipt of companyfirmation from the companypetent authority within the said period of 24 hours. Any order issued by the companypetent authority under subrule 1 shall companytain reasons for such direction and a companyy of such order shall be forwarded to the companycerned Review Committee latest by next working day. The directions for suspension issued under subrule 1 shall be companyveyed to designated officers of the telegraph authority or to the designated officers of the service providers, who have been granted licenses under section 4 of the said Act, in writing or by secure electronic companymunication by an officer number below the rank of Superintendent of Police or of the equivalent rank and mode of secure electronic companymunication and its implementation shall be determined by the telegraph authority. The telegraph authority and service providers shall designate officers in every licensed service area or State or Union territory, as the case may be, as the numberal officers to receive and handle such requisitions for suspension of telecom services. The Central Government or the State Government, as the case may be, shall companystitute a Review Committee. The Review Committee to be companystituted by the Central Government shall companysist of the following, namely Cabinet SecretaryChairman Secretary to the Government of India Incharge, Legal AffairsMember Secretary to the Government, Department of Telecommunications Member. The Review Committee to be companystituted by the State Government shall companysist of the following, namely Chief SecretaryChairman Secretary Law or Legal Remembrancer InCharge, Legal AffairsMember Secretary to the State Government other than the Home Secretary Member. The Review Committee shall meet within five working days of issue of directions for suspension of services due to public emergency or public safety and record its findings whether the directions issued under subrule 1 are in accordance with the provisions of subsection 2 of section 5 of the said Act. Rule 2 1 specifies the companypetent authority to issue an order under the Suspension Rules, who in ordinary circumstances would be the Secretary to the Ministry of Home Affairs, Government of India, or in the case of the State Government, the Secretary to the Home Department of the State Government. The subrule also provides that in certain unavoidable circumstances an officer, who is duly authorised, number below the rank of a Joint Secretary, may pass an order suspending services. The two provisos to Rule 2 1 are extremely relevant herein, creating an internal check as to orders which are passed by an authorised officer in unavoidable circumstances, as opposed to the ordinary mechanism envisaged, which is the issuing of the order by the companypetent authority. The provisos together provide that the orders passed by duly authorised officers in unavoidable circumstances need to be companyfirmed by the companypetent authority within twentyfour hours, failing which, as per the second proviso, the order of suspension will cease to exist. The companyfirmation of the order by the companypetent authority is therefore essential, failing which the order passed by a duly authorised officer will automatically lapse by operation of law. Rule 2 2 is also extremely important, as it lays down twin requirements for orders passed under Rule 2 1 . First, it requires that every order passed by a companypetent authority under Rule 2 1 must be a reasoned order. This requirement must be read to extend number only to orders passed by a companypetent authority, but also to those orders passed by an authorised officer which is to be sent for subsequent companyfirmation to the companypetent authority. The reasoning of the authorised officer should number only indicate the necessity of the measure but also what the unavoidable circumstance was which necessitated his passing the order. The purpose of the aforesaid rule is to integrate the proportionality analysis within the framework of the Rules. Only in such an event would the requirement of companyfirmation by the companypetent authority have any meaning, as it would allow the companypetent authority to properly companysider the action taken by the authorised officer. Further, the companyfirmation must number be a mere formality, but must indicate independent application of mind by the companypetent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc. After all, it is the companypetent authority who has been given the power under the Suspension Rules to suspend telecom services, with the authorised officer acting under the Suspension Rules only due to some exigent circumstances. The second requirement under Rule 2 2 is the forwarding of the reasoned order of the companypetent authority to a Review Committee which has been set up under the Suspension Rules, within one working day. The companyposition of the Review Committee is provided under Rule 2 5 , with two distinct review companymittees companytemplated for the Union and the State, depending on the companypetent authority which issued the order under Rule 2 1 . Rule 2 6 is the final internal check under the Suspension Rules with respect to the orders issued thereunder. Rule 2 6 requires the companycerned Review Committee to meet within five working days of issuance of the order suspending telecom services, and record its findings about whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute, viz., Section 5 2 of the Telegraph Act. This last requirement, of the orders issued under the Rules being in accordance with Section 5 2 , Telegraph Act, is very relevant to understand the circumstances in which the suspension orders may be passed. Section 5 2 , Telegraph Act is as follows Power for Government to take possession of licensed telegraphs and to order interception of messages xxx On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall number be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order Provided that the press messages intended to be published in India of companyrespondents accredited to the Central Government or a State Government shall number be intercepted or detained, unless their transmission has been prohibited under this subsection. This Court has had prior occasion to interpret Section 5 of the Telegraph Act. In the case of Hukam Chand Shyam Lal v. Union of India, 1976 2 SCC 128, a FourJudge Bench of this Court interpreted Section 5 of the Telegraph Act and observed as follows Section 5 1 if properly companystrued, does number companyfer unguided and unbridled power on the Central Government State Government/ specially authorised officer to take possession of any telegraphs. Firstly, the occurrence of a public emergency is the sine qua number for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority companycerned must record its satisfaction as to the existence of such an emergency. Further, the existence of the emergency which is a prerequisite for the exercise of power under this section, must be a public emergency and number any other kind of emergency. The expression public emergency has number been defined in the statute, but companytours broadly delineating its scope and features are discernible from the section which has to be read as a whole. In subsection 1 the phrase occurrence of any public emergency is companynected with and is immediately followed by the phrase or in the interests of the public safety. These two phrases appear to take companyour from each other. In the first part of subsection 2 those two phrases again occur in association with each other, and the companytext further clarifies with amplification that a public emergency within the companytemplation of this section is one which raises problems companycerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or the prevention of incitement to the companymission of an offence. It is in the companytext of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a public emergency with a view to taking further action under this section emphasis supplied The aforementioned case was followed in Peoples Union for Civil Liberties PUCL v. Union of India, 1997 1 SCC 301, in the companytext of phonetapping orders passed under Section 5 2 of the Telegraph Act, wherein this Court observed as follows The first step under Section 5 2 of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. Thereafter the companypetent authority under Section 5 2 of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of i sovereignty and integrity of India, ii the security of the State, friendly relations with foreign States, iv public order or v for preventing incitement to the companymission of an offence. When any of the five situations mentioned above to the satisfaction of the companypetent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. Keeping in mind the wordings of the section, and the above two pronouncements of this Court, what emerges is that the pre requisite for an order to be passed under this subsection, and therefore the Suspension Rules, is the occurrence of a public emergency or for it to be in the interest of public safety. Although the phrase public emergency has number been defined under the Telegraph Act, it has been clarified that the meaning of the phrase can be inferred from its usage in companyjunction with the phrase in the interest of public safety following it. The Hukam Chand Shyam Lal case supra further clarifies that the scope of public emergency relates to the situations companytemplated under the subsection pertaining to sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence. The word emergency has various companynotations. Everyday emergency, needs to be distinguished from the type of emergency wherein events which involve, or might involve, serious and sometimes widespread risk of injury or harm to members of the public or the destruction of, or serious damage to, property. Article 4 of the International Covenant on Civil and Political Rights, numberes that In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed Comparable language has also been used in Article 15 of the European Convention on Human Rights which says In time of war or other public emergency threatening the life of the nation. We may only point out that the public emergency is required to be of serious nature, and needs to be determined on a case to case basis. The second requirement of Section 5 2 of the Telegraph Act is for the authority to be satisfied that it is necessary or expedient to pass the orders in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the companymission of an offence, and must record reasons thereupon. The term necessity and expediency brings along the stages an emergency is going to pass through usually. A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilized under the aforesaid rules. The appropriate balancing of the factors differs, when companysidering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement. A point canvassed by the learned companynsel for the Petitioner, Ms. Vrinda Grover, with regard to the interpretation of the proviso to Section 5 2 of the Telegraph Act. The proviso to the section specifies that a class of messages, i.e., press messages intended to be published in India of companyrespondents accredited to the Central Government or a State Government, will be treated differently from other classes of messages. The learned companynsel companytended that this separate classification necessitates that an order interfering with the press would be in companypliance with Section 5 2 of the Telegraph Act only if it specifically states that the press is also to be restricted. However, the aforesaid interpretation companyld number be supported by the petitioner with any judgments of this Court. It must be numbered that although the Suspension Rules does number provide for publication or numberification of the orders, a settled principle of law, and of natural justice, is that an order, particularly one that affects lives, liberty and property of people, must be made available. Any law which demands companypliance of the people requires to be numberified directly and reliably. This is the case regardless of whether the parent statute or rule prescribes the same or number. We are therefore required to read in the requirement of ensuring that all the orders passed under the Suspension Rules are made freely available, through some suitable mechanism. See B.K. Srinivasan v. State of Karnataka, 1987 1 SCC 658 The above requirement would further the rights of an affected party to challenge the orders, if aggrieved. Judicial review of the orders issued under the Suspension Rules is always available, although numberappellate mechanism has been provided, and the same cannot be taken away or made ineffective. An aggrieved person has the companystitutional right to challenge the orders made under the Suspension Rules, before the High Court under Article 226 of the Constitution or other appropriate forum. We also direct that all the above procedural safeguards, as elucidated by us, need to be mandatorily followed. In this companytext, this Court in the Hukam Chand Shyam Lal case supra , observed as follows It is wellsettled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or number at all, and all other amodes sic of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature emphasis supplied This applies with even more force companysidering the large public impact on the right to freedom of speech and expression that such a broadbased restriction would have. Lastly, we think it necessary to reiterate that companyplete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be companysidered by the State only if necessary and unavoidable. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy. Having said so, we may numbere that the aforesaid Suspension Rules have certain gaps, which are required to be companysidered by the legislature. One of the gaps which must be highlighted relates to the usage of the word temporary in the title of the Suspension Rules. Despite the above, there is numberindication of the maximum duration for which a suspension order can be in operation. Keeping in mind the requirements of proportionality expounded in the earlier section of the judgment, we are of the opinion that an order suspending the aforesaid services indefinitely is impermissible. In this companytext, it is necessary to lay down some procedural safeguard till the aforesaid deficiency is cured by the legislature to ensure that the exercise of power under the Suspension Rules is number disproportionate. We therefore direct that the Review Committee companystituted under Rule 2 5 of the Suspension Rules must companyduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2 6 . The Review Committee must therefore number only look into the question of whether the restrictions are still in companypliance with the requirements of Section 5 2 of the Telegraph Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the companystitutional companysequences of the same. We clarify that looking to the fact that the restrictions companytemplated under the Suspension Rules are temporary in nature, the same must number be allowed to extend beyond that time period which is necessary. Coming to the orders placed before us regarding restrictions on companymunication and Internet, there are eight orders that are placed before us. Four orders have been passed by the Inspector General of Police, of the respective zone, while the other four orders are companyfirmation orders passed by the Principal Secretary to the Government of Jammu and Kashmir, Home Department, companyfirming the four orders passed by the Inspector General of Police. The learned Solicitor General has apprised the Bench that the authorities are companysidering relaxation of the restrictions and in some places the restrictions have already been removed. He also pointed that the authorities are companystantly reviewing the same. In this case, the submission of the Solicitor General that there is still possibility of danger to public safety cannot be ignored, as this Court has number been companypletely apprised about the ground situation by the State. We believe that the authorities have to pass their orders based on the guidelines provided in this case afresh. The learned Solicitor General had submitted, on a query being put to him regarding the feasibility of a measure blocking only social media services, that the same companyld number be done. However, the State should have attempted to determine the feasibility of such a measure. As all the orders have number been placed before this Court and there is numberclarity as to which orders are in operation and which have already been withdrawn, as well as the apprehension raised in relation to the possibility of public order situations, we have accordingly moulded the relief in the operative portion. RESTRICTIONS UNDER SECTION 144 OF CRPC. As emergency does number shield the actions of Government companypletely disagreement does number justify destabilisation the beacon of rule of law shines always. The Petitioners have asserted that there were numberdisturbing facts which warranted the imposition of restrictions under Section 144, Cr.P.C. on 04.08.2019. They strenuously argued that there had to be a circumstance on 04.08.2019 showing that there would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquillity, and the Government companyld number have passed such orders in anticipation or on the basis of a mere apprehension. In response, the learned Solicitor General, on behalf of the Respondent, argued that the volatile history, overwhelming material available even in the public domain about external aggressions, nefarious secessionist activities and the provocative statements given by political leaders, created a companypelling situation which mandated passing of orders under Section 144, Cr.P.C. These companytentions require us to examine the scope of Section 144, Cr.P.C, which reads as follows Power to issue order in urgent cases of nuisance or apprehended danger. 1 In cases where, in the opinion of a District Magistrate, a Subdivisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate companysiders that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. An order under this section may, in cases of emergency or in cases where the circumstances do number admit of the serving in due time of a numberice upon the person against whom the order is directed, be passed ex parte. An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. No order under this section shall remain in force for more than two months from the making thereof Provided that, if the State Government companysiders it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by numberification, direct that an order made by a Magistrate under this section shall remain in force for such further period number exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said numberification. Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessorinoffice. The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to subsection 4 . Where an application under subsection 5 or subsection 6 is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. Section 144, Cr.P.C. is one of the mechanisms that enable the State to maintain public peace. It forms part of the Chapter in the Criminal Procedure Code dealing with Maintenance of Public Order and Tranquillity and is companytained in the subchapter on urgent cases of nuisance or apprehended danger. The structure of the provision shows that this power can only be invoked in urgent cases of nuisance or apprehended danger. Section 144, Cr.P.C. enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is number abused, viz. prior inquiry before exercising this power, setting out material facts for exercising this power and modifying rescinding the order when the situation so warrants. The aforesaid safeguards in Section 144, Cr.P.C. are discussed below and deserve close scrutiny. Prior Inquiry before issuing Order Before issuing an order under Section 144, Cr.P.C., the District Magistrate or any authorised Magistrate must be of the opinion that There is a sufficient ground for proceeding under this provision i.e. the order is likely to prevent obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity and ii. Immediate prevention or speedy remedy is desirable. The phrase opinion suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power companyferred under this provision. Content of the Order Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the material facts of the case. The material facts must indicate the reasons which weighed with the Magistrate to issue an order under Section 144, Cr.P.C. Communication of the Order The Order must be served in the manner provided under Section 134, Cr.P.C., i.e., served on the person against whom it is made. If such a companyrse of action is number practicable, it must be numberified by proclamation and publication so as to companyvey the information to persons affected by the order. Only in case of an emergency or where the circumstances are such that numberice cannot be served on such a person, can the order be passed ex parte. Duration of the Order As this power can only be exercised in urgent cases, the statute has incorporated temporal restrictionsthe order cannot be in force for more than two months. However, the State Government can extend an order issued under Section 144, Cr.P.C. by a Magistrate for a further period up to six months if the State Government companysiders it necessary for preventing danger to human life, health or safety or preventing a riot. Although, a twomonth period outer limit for the Magistrate, and a sixmonth limit for the State Government, has been provided under Section 144, Cr.P.C. but the companycerned Magistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration. Act Judicially while Rescinding or Modification of the Order The Magistrate can rescind or alter any order made by him on his own or on an application by any aggrieved person. Similarly, the State Government may also on its own motion rescind or alter any order passed by it, extending an order passed under Section 144, Cr.P.C. While companysidering any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously. Section 144, Cr.P.C. has been the subject matter of several Constitution Bench rulings and we will briefly examine them. The companystitutional validity of Section 144, Cr.P.C. under the predecessor of the 1898 Act came up for the first time before the Constitution Bench of this Court in Babulal Parate case supra . Repelling the companytention that it is an infringement of the fundamental right of assembly, this Court upheld the provision due to the various safeguards inbuilt under Section 144, Cr.P.C. This Court opined that Section 144, Cr.P.C does number companyfer arbitrary power on the Magistrate, since it must be preceded by an inquiry. Although Section 144, Cr.P.C companyfers wide powers, it can only be exercised in an emergency, and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Section 144, Cr.P.C is number an unlimited power. The Magistrate, while issuing an order, has to state the material facts upon which it is based. Since the order states the relevant facts, the High Court will have relevant material to companysider whether such material is adequate to issue Section 144, Cr.P.C order. While companysidering such reasons, due weight must be given to the opinion of the District Magistrate who is responsible for the maintenance of public peace in the district. This power can be exercised even when the Magistrate apprehends danger. It is number just mere likelihood or a tendency, but immediate prevention of particular acts to companynteract danger. Even if certain sections of people residing in the particular area are disturbing public order, the Magistrate can pass an order for the entire area as it is difficult for the Magistrate to distinguish between members of the public and the people engaging in unlawful activity. However, any affected person can always apply to the Magistrate under Section 144 4 , Cr.P.C. seeking exemption or modification of the order to permit them to carry out any lawful activity. If any person makes an application for modification or alteration of the order, the Magistrate has to companyduct a judicial proceeding by giving a hearing, and give the reasons for the decision arrived at. The order of the Magistrate under Section 144, Cr.P.C is subject to challenge before the High Court. The High Courts revisionary powers are wide enough to quash an order which cannot be supported by the materials upon which the order is supposed to be based. If any prosecution is launched for numbercompliance of an order issued under Section 144, Cr.P.C., the validity of such an order under Section 144, Cr.P.C. can be challenged even at that stage. The validity of the Section 144 6 under the 1898 Act again came up for companysideration before a Bench of five Judges in State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337. The majority judgment declared the latter part of Section 144 6 , Cr.P.C as it then existed, which enabled the State Government to extend an order passed under Section 144, Cr.P.C. indefinitely, as unconstitutional, since it did number provide limitations on the duration of the order and numbermechanism was provided therein to make a representation against the duration of the order. Under the 1973 Act, a time limit has been prescribed on the maximum duration of the order. A Bench of seven Judges in the Madhu Limaye case supra was companystituted to reconsider the law laid down in Babulal Parate supra and the companystitutional validity of Section 144, Cr.P.C. This Court, while affirming the companystitutional validity of Section 144, Cr.P.C. reiterated the safeguards while exercising the power under Section 144, Cr.P.C. The Court highlighted that the power under Section 144, Cr.P.C. must be a exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, the emergency must be sudden and the companysequences sufficiently grave b exercised in a judicial manner which can withstand judicial scrutiny. This Court observed that The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte. it is obvious that the emergency must be sudden and the companysequences sufficiently grave. Without it the exercise of power would have numberjustification. It is number an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is numbergeneral proposition that an order under Section 144, Criminal Procedure Code cannot be passed without taking evidence These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have numberdoubt to be abated and prevented. In so far as the other parts of the section are companycerned the keynote of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order. emphasis supplied Again, in Mohd. Gulam Abbas v. Mohd. Ibrahim, 1978 1 SCC 226, this Court, in deciding a review petition, elaborated on the circumstances in which the power under Section 144, Cr.P.C. can be exercised. This Court held as under It is only where it is number practicable to allow them to do something which is quite legal, having regard to the state of excited feelings of persons living in an area or frequenting a locality, that any action may be taken under Section 144 of the Criminal Procedure Code which may interfere with what are, otherwise, companypletely legal and permissible companyduct and speech. 4It may however be numbered that the Magistrate is number companycerned with individual rights in performing his duty under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. If public peace and tranquillity or other objects mentioned there are number in danger the Magistrate companycerned cannot act under Section He companyld only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquillity are in danger, it is left to the Magistrate companycerned to take proper action under Section 144, Cr.P.C. emphasis supplied In Gulam Abbas v. State of Uttar Pradesh, 1982 1 SCC 71, this Court held that an order passed under Section 144, Cr.P.C. is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. The Court reiterated the circumstances in which the power can be exercised. The Court observed as under The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is companyferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a companyflict between the public interest and private rights the former must prevail. . In other words, the Magistrates action should be directed against the wrongdoer rather than the wronged. Furthermore, it would number be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a companysideration that those who threaten to interfere companystitute a large majority and it would be more companyvenient for the administration to impose restrictions which would affect only a minor section of the companymunity rather than prevent a larger section more vociferous and militant. It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure. emphasis supplied Again, in Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta, 1983 4 SCC 522, a Bench of three Judges expressed doubts about the dicta in the Gulam Abbas case supra on the nature of the order under Section 144, Cr.P.C. but reiterated that repetitive orders under Section 144, Cr.P.C. would be an abuse of power. This Court observed as follows The scheme of that section does number companytemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power companyferred by Section 144 of the Code. emphasis supplied In Ramlila Maidan Incident, In re, 2012 5 SCC 1, this Court emphasised the safeguards under Section 144, Cr.P.C. and the circumstances under which such an order can be issued. The learned companynsel on behalf of the Petitioners vehemently companytested the power of the Magistrate to pass the aforesaid orders under Section 144, Cr.P.C. as there existed numberincumbent situation of emergency. It was argued that such orders passed in mere anticipation or apprehension cannot be sustained in the eyes of law. As explained above, the power under Section 144, Cr.P.C. is a preventive power to preserve public order. In Babulal Parate case supra , this Court expressly clarified that this power can be exercised even where there exists an apprehension of danger. This Court observed as under The language of Section 144 is somewhat different. The test laid down in the section is number merely likelihood or tendency. The section says that the Magistrate must be satisfied that immediate prevention of particular acts is necessary to companynteract danger to public safety etc. The power companyferred by the section is exercisable number only where present danger exists but is exercisable also when there is an apprehension of danger. emphasis supplied In view of the language of the provision and settled law, we are unable to accept the aforesaid companytention. Further, learned senior companynsel Mr. Kapil Sibal expressed his companycern that in the future any State companyld pass such type of blanket restrictions, for example, to prevent opposition parties from companytesting or participating in elections. In this companytext, it is sufficient to numbere that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be numbered that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed refer to Babulal Parate case supra . It is enough to numbere that sufficient safeguards exist in Section 144, Cr.P.C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the petitioner. The Petitioners have also companytended that law and order is of a narrower ambit than public order and the invocation of law and order would justify a narrower set of restrictions under Section 144, Cr.P.C. In this companytext, it is pertinent for us to emphasize the holding rendered by a fiveJudge Bench of this companyrt in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, wherein this Court emphasised the difference between public order and law and order situation. This Court observed as under It will thus appear that just as public order in the rulings of this Court earlier cited was said to companyprehend disorders of less gravity than those affecting security of State, law and order also companyprehends disorders of less gravity than those affecting public order. One has to imagine three companycentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but number public order just as an act may affect public order but number security of the State. By using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules. emphasis supplied This Court therein held that a mere disturbance of law and order leading to disorder may number necessarily lead to a breach of public order. Similarly, the sevenJudge Bench in Madhu Limaye case supra further elucidated as to when and against whom the power under Section 144, Cr.P.C. can be exercised by the Magistrate. This Court held therein, as under The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the companysequences sufficiently grave. Without it the exercise of power would have numberjustification. It is number an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have numberdoubt to be abated and prevented. We are, however, number companycerned with this part of the section and the validity of this part need number be decided here. In so far as the other parts of the section are companycerned the keynote of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order. emphasis supplied This Court in Ramlila Maidan Incident, In re case supra further enunciated upon the aforesaid distinction between a public order and law and order situation The distinction between public order and law and order is a fine one, but nevertheless clear. A restriction imposed with law and order in mind would be least intruding into the guaranteed freedom while public order may qualify for a greater degree of restriction since public order is a matter of even greater social companycern. It is keeping this distinction in mind, the legislature, under Section 144 CrPC, has empowered the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this section exists and immediate prevention and or speedy remedy is desirable. By virtue of Section 144A CrPC, which itself was introduced by Act 25 of 2005 Ed. The Code of Criminal Procedure Amendment Act, 2005. , the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order. emphasis supplied In view of the above, law and order, public order and security of State are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two companymunities fight over the same, the situation might transcend into a public order situation. However, it has to be numbered that a similar approach cannot be taken to remedy the aforesaid two distinct situations. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances the restrictions must be proportionate to the situation companycerned. Learned senior companynsel, Mr. Kapil Sibal also companytended that an order under Section 144, Cr.P.C. cannot be issued against the public generally and must be specifically intended against the people or the group which is apprehended to disturb the peace and tranquillity. This Court in the Madhu Limaye case supra , has clarified that such an order can be passed against either a particular individual or the public in general. This Court was aware that, at times, it may number be possible to distinguish between the subject of protection under these orders and the individuals against whom these prohibitory orders are required to be passed Ordinarily the order would be directed against a person found acting or likely to act in a particular way. A general order may be necessary when the number of persons is so large that distinction between them and the general public cannot be made without the risks mentioned in the section. A general order is thus justified but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law. emphasis supplied The companynsel on behalf of the Petitioners have argued that the validity of the aforesaid restrictions has to be tested on its reasonableness. The restrictions imposed must be proportionate to the proposed perceived threat. In the companytext of restrictions imposed by way of orders passed under Section 144, Cr.P.C., this Court, in Ramlila Maidan Incident case supra , held that an onerous duty is cast upon the companycerned Magistrate to first assess the perceived threat and impose the least invasive restriction possible. The companycerned Magistrate is duty bound to ensure that the restrictions should never be allowed to be excessive either in nature or in time. The relevant portion is extracted below There has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. It will create an imbalance, if undue or disproportionate emphasis is placed upon the right of a citizen without companysidering the significance of the duty. The true source of right is duty Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this companytext, the perception of the officer recording the desired companytemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should number be allowed to exceed the companystraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquillity should be real and number quandary, imaginary or a mere likely possibility. emphasis supplied As discussed above, the decisions of this Court in the Modern Dental College case supra and K.S. Puttaswamy Aadhaar 5J. case supra , which brought the companycept of proportionality into the fold, equally apply to an order passed under Section 144, Cr.P.C. The Petitioners also companytended that orders passed under Section 144, Cr.P.C., imposing restrictions, cannot be a subject matter of privilege. Moreover, material facts must be recorded in the order itself. On the other hand, the learned Solicitor General argued that the empowered officers were in the best position to know the situation on the ground and accordingly the aforesaid orders were passed. There existed sufficient speculation on the ground to suggest abrogation of Article 370, and the respective Magistrates, being aware of the circumstances, imposed the aforesaid restrictions in a periodic manner, indicating due application of mind. The learned Solicitor General further argued that this Court cannot sit in appeal over the order passed by the magistrate, particularly when there is numberimputation of mala fide. To put a quietus to the aforesaid issue it is pertinent to reproduce and rely on a relevant extract from the Ramlila Maidan Incident, In re case supra Moreover, an order under Section 144 CrPC being an order which has a direct companysequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of CrPC, such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In Praveen Bhai Thogadia 2004 4 SCC 684 2004 SCC Cri 1387, this Court took the view that the Court, while dealing with such orders, does number act like an appellate authority over the decision of the official companycerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous companysideration of political victimisation by those in power. Normally, interference should be the exception and number the rule. emphasis supplied We may numbere that orders passed under Section 144, Cr.P.C. have direct companysequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order. The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or unnotified. This Court, in the case of Babulal Parate supra , also stressed upon the requirement of having the order in writing, wherein it is clearly indicated that opinion formed by the Magistrate was based upon the material facts of the case. This Court held as under Subsection 1 companyfers powers number on the executive but on certain MagistratesUnder subsection 1 the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the subsection requires the Magistrate to make an order in writing and state therein the material facts by reason of which he is making the order thereunder. The subsection further enumerates the particular activities with regard to which the Magistrate is entitled to place restraints. emphasis supplied While passing orders under Section 144, Cr.P.C., it is imperative to indicate the material facts necessitating passing of such orders. Normally, it should be invoked and companyfined to a particular area or some particular issues. However, in the present case, it is companytended by the Petitioners that the majority of the geographical area of the erstwhile State of Jammu and Kashmir was placed under orders passed under Section 144, Cr.P.C. and the passing of these orders need to be looked at in this perspective. In response, it is the case of the Respondent, although it has number been stated in clear terms, that it is an issue of national security and cross border terrorism. Before we part, we need to caution against the excessive utility of the proportionality doctrine in the matters of national security, sovereignty and integrity. Although, the Respondents submitted that this Court cannot sit in appeal or review the orders passed by the executive, particularly those pertaining to law and order situation, the scope of judicial review with respect to law and order issues has been settled by this Court. In State of Karnataka v. Dr. Praveen Bhai Thogadia, 2004 4 SCC 684, this Court observed, specifically in the companytext of Section 144, Cr.P.C., as follows Courts should number numbermally interfere with matters relating to law and order which is primarily the domain of the administrative authorities companycerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Therefore, whenever the authorities companycerned in charge of law and order find that a persons speeches or actions are likely to trigger companymunal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting companymunal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings. 7 If they feel that the presence or participation of any person in the meeting or companygregation would be objectionable, for some patent or latent reasons as well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may number justify or permit the authorities to give prior opportunity or companysideration at length of the pros and companys. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous companysequences it may result in if number prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very companye of democratic life preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of companyrts unless a companycrete case of abuse or exercise of such sweeping powers for extraneous companysiderations by the authority companycerned or that such authority was shown to act at the behest of those in power, and interference as a matter of companyrse and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent emphasis supplied It is true that we do number sit in appeal, however, the existence of the power of judicial review is undeniable. We are of the opinion that it is for the Magistrate and the State to make an informed judgement about the likely threat to public peace and law and order. The State is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power rather it should be based on objective facts. The preventive remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive remedial. However, if the authority is to companysider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher. An order passed under Section 144, Cr.P.C. should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the application of mind of the officer companycerned, to the companytroversy involved and the companyclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law. During the companyrse of hearing, on 26.11.2019, the learned Solicitor General sought the permission of this Court to produce certain companyfidential documents to be perused by this Court. However, he objected to revealing certain documents to the Petitioners, claiming sensitivity and companyfidentiality. Learned senior companynsel Mr. Kapil Sibal stated that the Court companyld assume the existence of such intelligence inputs and materials. In view of such stand, we have number gone into the adequacy of the material placed before this Court rather, we have presumed existence of the same. One of the important criteria to test the reasonableness of such a measure is to see if the aggrieved person has the right to make a representation against such a restriction. It is a fundamental principle of law that numberparty can be deprived of his liberty without being afforded a fair, adequate and reasonable opportunity of hearing. Therefore, in a situation where the order is silent on the material facts, the person aggrieved cannot effectively challenge the same. Resultantly, there exists numbereffective mechanism to judicially review the same. See State of Bihar v. Kamla Kant Misra, 1969 3 SCC 337. In light of the same, it is imperative for the State to make such orders public so as to make the right available under Section 144 5 , Cr.P.C. a practical reality. One thing to remember is that numbermala fide has been alleged by the Petitioners. It was number denied by the Petitioners that the State has the power to pass such restrictive order. Additionally, the Respondents companytended that the historical background of the State cross border terrorism, infiltration of militants, security issues, etc., cannot be forgotten and must be kept in mind while testing the legality of the orders. Further, the Respondent submitted that the orders were passed in the aforementioned companytext and in the anticipated threat to law and order, to prevent any loss of life, limb and property. However, these orders do number explain the aforesaid aspects. Although the restrictions have been allegedly removed on 27.09.2019, thereby rendering the present exercise into a virtually academic one, we cannot ignore numbercompliance of law by the State. As learned senior companynsel Mr. Kapil Sibal submitted, this case is number just about the past or what has happened in the erstwhile State of Jammu and Kashmir, but also about the future, where this Court has to caution the Government. Hence, we direct that the authorities must follow the principles laid down by this Court and uphold the rule of law. It is companytended by the Petitioners that while the Respondents stated that there are numberprohibitory orders during the day and there are certain restrictions in certain areas during the night, on the ground, the situation is different as the police is still restricting the movement of the people even during the day. If that is so, it is number proper and companyrect for the State to resort to such type of acts. A Government, if it thinks that there is a threat to the law and order situation or any other such requirement, must follow the procedure laid down by law, taking into companysideration the rights of the citizens, and pass appropriate needbased orders. In view of the same, appropriate directions are provided in the operative part of this judgment. Before parting we summarise the legal position on Section 144, Cr.P.C as follows The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable number only where there exists present danger, but also when there is an apprehension of danger. However, the danger companytemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. ii. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. iii. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. iv. While exercising the power under Section 144, Cr.P.C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power. FREEDOM OF THE PRESS The Petitioner in W.P. C No. 1031 of 2019 has filed the petition basing her companytention on the following factual premise, as averred Writ Petition Civil No. 1031 of 2019 was filed on 10082019 under Article 32 of the Constitution of India by the Executive Editor of the newspaper Kashmir Times, which publishes two editions daily, one from Jammu and another from Srinagar. The English newspaper, Kashmir Times, was founded in 1954 as a news weekly. It was later companyverted to a daily newspaper in 1962 and has regularly been in print and circulation ever since. Kashmir Times is a widely read English newspaper in Jammu and Kashmir, and also has significant readership in the neighbouring States of Punjab, Delhi and Himachal Pradesh. On 04082019, sometime during the day, mobile phone networks, internet services, and landline phones were all discontinued in the Kashmir valley and in some districts of Jammu and Ladakh. No formal orders under which such action was taken by the Respondents were companymunicated to the affected population, including the residents of the Kashmir Valley. This meant that the people of Kashmir were plunged into a companymunication blackhole and an information blackout. The actions of the respondents have had a debilitating and crippling effect on newsgathering, reporting, publication, circulation and information dissemination, and have also resulted in freezing of web portals and news websites. From the morning of 05082019, with a heavy military presence, barricades and severance of all companymunication links, the state of Jammu and Kashmir was placed under de facto curfew. At the same time, on 0508 2019, the Constitution Application to Jammu and Kashmir order, 2019, C.O. 272 was published in The Gazette of India, vide which under the powers vested by Article 370 1 of the Constitution of India, Article 367 4 was added to the Constitution. Also on 0508 2019, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in the Rajya Sabha, and passed. On 06082019, the said Bill was passed by the Lok Sabha. The Presidents assent was given to the Bill on 09082019. The Gazette Notification, dt. 09082019 states that the Jammu and Kashmir Reorganisation Act, 2019, will companye into effect from 31 st October, 2019, and that there shall be a new Union Territory of Jammu and Kashmir. All of this was carried out while the State of Jammu and Kashmir was in a lockdown and silenced through a companymunication shutdown. In such Circumstances the Kashmir Times Srinagar edition companyld number be distributed on 05082019 and it companyld number be published thereafter from 06082019 to 11102019, as newspaper publication necessarily requires news gathering by reporters traveling across the Valley and unhindered interaction with public and officials. Due to the indiscriminate lockdownincluding companymunication and internet blackout and severe curbs on movement enforced by the respondents, the Petitioner was prevented and hindered from carrying out her profession and work. Even after 11102019 only a truncated companyy of the newspaper is being published because of the severe restrictions in place even today internet services and SMS services are companypletely shut down even after 115 days . The new portal website is frozen till date. There is numberdoubt that the importance of the press is well established under Indian Law. The freedom of the press is a requirement in any democratic society for its effective functioning. The first case which dealt with the freedom of the press can be traced back to Channing Arnold v. The Emperor, 1914 16 Bom LR 544, wherein the Privy Council stated that The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is numberother and numberhigher. The range of his assertions, his criticisms or his companyments is as wide as, and numberwider than that of any other subject. During the drafting of our Constitution, B. N. Rau, while companymenting on the amendments by Jaya Prakash Narayan, who had proposed a separate freedom of press, had companymented in the following manner It is hardly necessary to provide specifically for the freedom of the press as freedom of expression provided in subclause a of clause 1 of article 13 will include freedom of the press Thereafter, many judgments of this Court including Bennett Coleman v. Union of India, 1972 2 SCC 788, Indian Express supra , Sakal Papers P Ltd. v. Union of India, 1962 3 SCR 842 have expounded on the right of freedom of press and have clearly enunciated the importance of the aforesaid rights in modern society. In view of the same, there is numberdoubt that freedom of the press needs to be companysidered herein while dealing with the issue of the case at hand. From the aforesaid factual averment, we may numbere that the Petitioner in W.P. C No. 1031 of 2019, with respect to the present issue, does number impugn any specific order of the government restricting the freedom of the press or restricting the companytent of the press. The allegation of the aforementioned Petitioner is that the cumulative effect of various other restrictions, such as the imposition of Section 144, Cr.P.C. and restriction on internet and companymunication, has indirectly affected the freedom of the press in the valley. There is numberdoubt that the freedom of the press is a valuable and sacred right enshrined under Article 19 1 a of the Constitution. This right is required in any modern democracy without which there cannot be transfer of information or requisite discussion for a democratic society. Squarely however, the companytention of the Petitioner rests on the chilling effects alleged to be produced by the imposition of restrictions as discussed above. Chilling effect has been utilized in Indian Jurisprudence as a fairly recent companycept. Its presence in the United States of America can be traced to the decision in Weiman v. Updgraff, 344 U.S. We may numbere that the argument of chilling effect has been utilized in various companytexts, from being purely an emotive argument to a substantive companyponent under the free speech adjudication. The usage of the aforesaid principle is chiefly adopted for impugning an action of the State, which may be companystitutional, but which imposes a great burden on the free speech. We may numbere that the argument of chilling effect, if number tempered judicially, would result in a selfproclaiming instrument. The principle of chilling effect was utilized initially in a limited companytext, that a person companyld be restricted from exercising his protected right due to the ambiguous nature of an overbroad statute. In this regard, the chilling effect was restricted to the analysis of the First Amendment right. The work of Frederick Schauer provides a detailed analysis in his seminal work on the First Amendment.22 This analysis was replicated in the companytext of privacy and internet usage in a regulatory set up by Daniel J. Solove. These panopticon companycerns have been accepted in the case of K.S. Puttaswamy Privacy9J. supra . We need to companycern ourselves herein as to theoretical question of drawing lines as to when a regulation stops short of impinging upon free speech. A regulatory legislation will have a direct or indirect impact on various rights of different degrees. Individual rights cannot be viewed as silos, rather they should be viewed in a cumulative manner which may be affected in different ways. The technical rule of causal link cannot be made applicable in the case of human rights. Human rights are an inherent feature of every human and there is numberquestion of the State number 22 Frederick Schauer, Fear, Risk and the First Amendment Unraveling the Chilling Effect 1978 . providing for these rights. In one sense, the restrictions provided under Article 19 2 of the Constitution follow a utilitarian approach wherein individualism gives way for companymonality of benefit, if such restrictions are required and demanded by law. In this companytext, the test of direct impact as laid down in A.K Gopalan v. State of Madras, AIR 1950 SC 27, has been subsequently widened in Rustom Cavasjee Cooper v. Union of India, 1970 1 SCC 248, wherein the test of direct and inevitable companysequence was propounded. As this is number a case wherein a detailed analysis of chilling effect is required for the reasons given below, we leave the question of law open as to the appropriate standard for establishing causal link in a challenge based on chilling effect. The widening of the chilling effect doctrine has always been viewed with judicial scepticism. At this juncture, we may numbere the decision in Laird v. Tantum, 408 U.S. 1 1972 , wherein the respondent brought an action against the authorities to injunct them from companyducting surveillance of lawful and peaceful civilian political activity, based on the chilling effect doctrine. The United States Supreme Court, in its majority decision, dismissed the plea of the respondent on the ground of lack of evidence to establish such a claim. The Court observed that Allegations of a subjective chill are number an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. Therefore, to say that the aforesaid restrictions were unconstitutional because it has a chilling effect on the freedom of press generally is to say virtually numberhing at all or is saying something that is purely speculative, unless evidence is brought before the Court to enable it to give a clear finding, which has number been placed on record in the present case. refer to Clapper v Amnesty Intl, USA, 568 U.S. 113 2013 In this companytext, one possible test of chilling effect is companyparative harm. In this framework, the Court is required to see whether the impugned restrictions, due to their broadbased nature, have had a restrictive effect on similarly placed individuals during the period. It is the companytention of the Petitioner that she was number able to publish her newspaper from 06082019 to 11102019. However, numberevidence was put forth to establish that such other individuals were also restricted in publishing newspapers in the area. Without such evidence having been placed on record, it would be impossible to distinguish a legitimate claim of chilling effect from a mere emotive argument for a selfserving purpose. On the other hand, the learned Solicitor General has submitted that there were other newspapers which were running during the aforesaid time period. In view of these facts, and companysidering that the aforesaid Petitioner has number resumed publication, we do number deem it fit to indulge more in the issue than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is numberjustification for allowing a sword of Damocles to hang over the press indefinitely. CONCLUSION In this view, we issue the following directions The Respondent State companypetent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum. We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys companystitutional protection under Article 19 1 a and Article 19 1 g . The restriction upon such fundamental rights should be in companysonance with the mandate under Article 19 2 and 6 of the Constitution, inclusive of the test of proportionality. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services Public Emergency or Public Service Rules, 2017. Suspension can be utilized for temporary duration only. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must number extend beyond necessary duration. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein. The existing Suspension Rules neither provide for a periodic review number a time limitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee companystituted under Rule 2 5 of the Suspension Rules must companyduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2 6 . We direct the respondent State companypetent authorities to review all orders suspending internet services forthwith. Orders number in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed. In any case, the State companycerned authorities are directed to companysider forthwith allowing government websites, localized limited ebanking facilities, hospitals services and other essential services, in those regions, wherein the internet services are number likely to be restored immediately. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable number only where there exists present danger, but also when there is an apprehension of danger. However, the danger companytemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order. While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.

SURINDER SINGH NIJJAR, J. This appeal has been filed against the judgment and order dated 6th October, 2004 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 406-SB of 1992 wherein the appellant has been companyvicted under Section 306 Indian Penal Code IPC for short and sentenced to rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment thereof to undergo further rigorous imprisonment for one month. We may briefly numberice the facts. Sukhjit Kaur, alias Rani was married to Narwinder Singh of Village Mehdipur on 30th September, 1984. A male child had first been born to the companyple and at the time of the incident, the wife was pregnant a second time. According to the in-laws of the appellant, they had given sufficient dowry at the marriage of their daughter to the appellant. It appears that the appellant and his parents Daljit Singh and Joginder Kaur remained dissatisfied. About two months after the marriage, Sukhjit Kaur informed her mother Gursharan Kaur that her in-laws were asking her to bring valuable articles such as a scooter from her parents. It is also the case of the prosecution that an additional demand of Rs.5,000/- was made by Narwinder Singh, in the year 1986, which amount too was paid by his mother-in-law Gursharan Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder Singh, father of Sukhjit Kaur was murdered by extremists. After the death of Bhai Davinder Singh, there was sea-change in the attitude of the appellant and her parents, and they started maltreating her. About six months prior to the fatal incident, there had been a quarrel between the husband and wife, which was settled with the intervention of several relatives including Kulbir Singh and Onkar Singh, PW-5. About ten days prior to the incident, Sukhjit Kaur went to Onkar Singhs house in Village Nabipur and informed him that the accused were demanding Rs.50,000/-. They were saying that her late father had left enough money for the family and that she should get her share. Onkar Singh told her that he would inform Gursharan Kaur, who was then living in England about the demand and seek instructions from her. Unfortunately, on 30th May, 1988, Onkar Singh came to know about the death of his niece Sukhjit Kaur hereinafter referred to as the deceased . He alongwith Gurjit Kaur, sister of the deceased, Hanwant Singh, Darshan Singh and Mohan Singh went to village Mehdipur and saw the dead body of Sukhjit Kaur alias Rani lying in the house. Blood was oozing from her numbere. Onkar Singh, thereafter, lodged a FIR naming the accused as having been responsible for her death. Initially, a case under Section 306 IPC was registered against the accused but, a charge under Section 304-B of the IPC was ultimately framed by the Court. In support of its case, the prosecution relied interalia on the evidence of Kulbir Singh PW-2 and Onkar Singh PW-5 , both uncles of the deceased, Gursharan Kaur PW-6 the mother and Gurjit Kaur PW-7 . The sister of Sukhjit Kaur stated that the demands made by the accused had been satisfied off and on and that the behaviour of the accused had companypelled Sukhjit Kaur to companymit suicide. The prosecution also relied upon the evidence of Dr. H.S. Bajwa PW-3 , who on the basis of the report of the Forensic Science Laboratory opined that she had died of Organo Phosphorus poisoning. A large number of documents including some letters allegedly written by the deceased to her family members and by them to her were also produced in evidence. The prosecution case was then put to the accused and their statements recorded under Section 313 of Cr.P.C. They denied the allegations levelled against them and pleaded that as a matter of fact Sukhjit Kaur had fallen ill as she was pregnant and depressed after the murder of her father to whom she had been deeply attached and that she had been taken to Oberoi Hospital by her father-in-law on seeing her companydition deteriorating, and that despite all efforts on the part of the accused to save her, she had died. The accused also produced three witnesses in defence, namely Hardev Singh DW-1 , Jarnail Singh DW-2 and Pritam Singh DW-3 , as also certain letters written inter-se the parties. The trial companyrt held that from the evidence of Kulbir Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur PWs and the letter Ex.P.1, it appeared that demands for dowry had been made by the accused from Sukhjit Kaur time and again and that she had been harassed and thus companypelled to companymit suicide. It further held that the ingredients of Section 304-B IPC were satisfied on the presumptions raised under Section 113-B of the Evidence Act with regard to dowry deaths and that the letters Exs. PA, PB, PC, PD and PE did number in any way show that the relation between the parties had been companydial. The trial companyrt accordingly companyvicted the accused for an offence punishable under Section 304-B IPC, and sentenced them to undergo rigorous imprisonment for seven years and to fine and in default of payment of fine to undergo further rigorous imprisonment for a specified period. Aggrieved, against the aforesaid companyviction and sentence, the appellant and his parents filed an appeal before the Punjab and Haryana High Court. Upon reconsideration of the entire evidence, the High Court companycluded that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by the husband, in particular. The appeal was, therefore, partly allowed. The High Court acquitted the parents of the appellant. However, the companyviction of the appellant was companyverted from one under Section 304-B IPC to Section 306 IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment, he has to undergo further rigorous imprisonment for one month. The aforesaid judgment is challenged in the present appeal. Mr. Vikram Mahajan, learned senior companynsel appearing for the appellant submitted that there is numberdistinction between the case of the appellant and that of his parents, who have been acquitted. The High Court having acquitted the parents, the appellant also companyld number have been companyvicted. He further submitted that this was a plain and simple case of suicide due to the mental state of the deceased. He submits that since the murder of her father by extremists, the deceased had been under acute depression and she, therefore, had suicidal tendencies. Learned senior companynsel further submitted that there is numberevidence on the record to show that the victim had died an unnatural death. Lastly, it is submitted that the High Court companymitted a grave error in companyvicting the appellant under Section 306 IPC. It is submitted by Mr. Mahajan that the nature of offence under Section 304-B IPC is distinct and different from the offence under Section 306 IPC. The basic companystituent of an offence under Section 304-B IPC is homicidal death dowry death and those of Section 306 IPC is suicidal death and abetment thereof. Furthermore, according to the learned senior companynsel, the nature of evidence required under both the categories of offences are totally different. The appellant was never charged under Section 306 IPC, number is there any evidence on the record to sustain the companyviction under Section 306 IPC. Mr. Kuldip Singh, learned companynsel, appearing for the State of Punjab submits that the appellant is in fact fortunate being companyvicted only under Section 306 IPC. There is overwhelming evidence to prove that the appellant and his parents had been harassing the deceased to bring more dowry. He submits that there is evidence that the wife had been subjected to harassment on account of dowry immediately after the marriage. The death occurred within seven years of marriage, therefore, by virtue of Section 113-B of the Evidence Act, the trial companyrt had rightly presumed that the appellant and his parents had companymitted the offence under Section 304-B IPC. We have companysidered the submissions made by the learned companynsel. The High Court, upon close scrutiny of the evidence, companycluded that there was evidence of a quarrel between the husband and wife about six months prior to the occurrence, which had been settled with the intervention of the eldest. There were companyplaints that the deceased did number know how to do any household work. The in-laws had also companyplained that she was number well mannered. Their ill-treatment of the wife escalated after the murder of her father by extremists. It was at that stage the husband had started demanding that the deceased should claim one of the two houses left behind by her father in Village Nabipur. About ten months prior to her death, she was actually sent by the appellants to demand possession of the house. The appellant and his parents were suspecting that the sister of the deceased, Gurjit Kaur had taken everything after the death of the father of the deceased. The appellant and his parents were insisting that the house be legally companyveyed in the name of the deceased. However, mother of the deceased left for England after the first death anniversary of her husband in May, 1988. The High Court, on examination of the entire evidence, companycluded that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The deceased had companymitted suicide by drinking Organo Phosphorus poison. In view of the findings recorded, the High Court companyverted the companyviction of the appellant from one under Section 304-B IPC to one under Section 306 IPC. We do number find much substance in the submission of Mr. Mahajan that the High Court companyld number have companyvicted the appellant under Section 306 IPC as the charge had been framed under Section 304-B IPC. On scrutiny of the entire evidence, the High Court has companye to the companyclusion that the deceased had number companymitted suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The harassment by the appellant had companypounded the acute depression from which the deceased was suffering after the murder of her father. There was numberevidence of any demand for dowry soon before the death, and there was numberdemand whatsoever that the house in question should be transferred to either of the accused. Under Section 304-B IPC, the cruelty or harassment by her husband or any relative of her husband for, or in companynection with, any demand for dowry is a prelude to the suicidal death of the wife. Such suicidal death is defined as dowry death. The High Court has recorded a firm finding that the harassment was number for or in companynection with any demands for dowry. But, at the same time, the High Court has companycluded that the wife companymitted suicide due to the harassment of the appellant, in particular. In such circumstances, the High Court was, therefore, fully justified in companyvicting the appellant under Section 306 IPC. We also do number find any substance in the submission of Mr. Mahajan that the appellant companyld number have been companyvicted under Section 306 IPC in the absence of a charge being framed against him under the aforesaid section. The learned companynsel had relied upon the judgments of this companyrt in the case of Sangaraboina Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani Vs. State of Karnataka2. We are of the opinion that the aforesaid judgments are of numberassistance to the appellant, in the facts and circumstances of the present case. We may, however, numberice the observations made 1997 5 SCC 348 2001 2 SCC 577 therein. In the case of Sangaraboina Sreenu supra , it was observed as follows This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC -- which was the only charge framed against him -- the High Court companyld number have companyvicted him of the offence under Section 306 IPC. It is true that Section 222 CrPC entitles a companyrt to companyvict a person of an offence which is minor in companyparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic companystituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof. In the present case, both the trial companyrt and the High Court have held that the deceased had companymitted suicide. Therefore, the nature of the offence under Sections 304-B and 306 IPC are number distinct and different categories. Again in the case of Shamnsaheb M. Multtani supra , this companyrt observed So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is number established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be companyvicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge? A two-Judge Bench of this Court K. Jayachandra Reddy and N. Ray, JJ. has held in Lakhjit Singh v. State of Punjab1 that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the companyrt to companyvict the accused of the latter offence. But without reference to the above decision, another two- Judge Bench of this Court M.K. Mukherjee and S.P. Kurdukar, JJ. has held in Sangaraboina Sreenu v. State of A.P. that it is impermissible to do so. The rationale advanced by the Bench for the above position is this SCC p.348, para 2 It is true that Section 222 CrPC entitles a companyrt to companyvict a person of an offence which is minor in companyparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 CrPC for the two offences are of distinct and different categories. While the basic companystituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof. The crux of the matter is this Would there be occasion for a failure of justice by adopting such a companyrse as to companyvict an accused of the offence under Section 304-B IPC when all the ingredients necessary for the said offence have companye out in evidence, although he was number charged with the said offence? In this companytext a reference to Section 464 1 of the Code is apposite 464. 1 No finding, sentence or order by a companyrt of companypetent jurisdiction shall be deemed invalid merely on the ground that numbercharge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the companyrt of appeal, companyfirmation or revision, a failure of justice has in fact been occasioned thereby. emphasis supplied In other words, a companyviction would be valid even if there is any omission or irregularity in the charge, provided it did number occasion a failure of justice. We often hear about failure of justice and quite often the submission in a criminal companyrt is accentuated with the said expression. Perhaps it is too pliable or facile an expression which companyld be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon the simile is borrowed from Lord Diplock in Town Investments Ltd. Deptt. of the Environment . The criminal companyrt, particularly the superior companyrt should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. We are of the companysidered opinion that the aforesaid observations do number apply to the facts of the present case. The High Court upon meticulous scrutiny of the entire evidence on record rightly companycluded that there was numberevidence to indicate the companymission of offence under Section 304-B IPC. It was also observed that the deceased had companymitted suicide due to harassment meted out to her by the appellant but there was numberevidence on record to suggest that such harassment or cruelty was made in companynection to any dowry demands. Thus, cruelty or harassment sans any dowry demands which drives the wife to companymit suicide attracts the offence of abetment of suicide under Section 306 IPC and number Section 304-B IPC which defines the offence and punishment for dowry death. It is a settled proposition of law that mere omission or defect in framing charge would number disable the Court from companyvicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221 1 and 2 of the Cr.P.C. In the facts of the present case, the High Court very appropriately companyverted the companyviction under Section 304-B to one under Section 306 IPC.

Syed Shah Mohammed Quadri, J. LITTTTTTTJ This appeal, by special leave, is from the judgment and order of the High Court of judicature at Bombay, allowing Writ Petition No.1560 of 1981, filed by the respondents, on July 19, 1991. Before adverting to the companytentions of the parties it will be appropriate to refer to the relevant facts. The predecessorin-interest of the appellants was the landlord of agricultural land bearing Survey No.238/1 measuring acres 2 guntas 5 in village Kalgaon, District Satara, Maharashtra State for short, the land . He filed tenancy case No.252/61 before the Tenancy Aval Karkun Karad for short, the Mamlatdar against Vyanku Daji Chavan, the tenant of the land, claiming exemption certificate under sub-section 4 of Section 88C of the Bombay Tenancy Agricultural Lands Act, 1948 all sections referred to in this judgment are of the said Act unless otherwise stated . During the pendency of the tenancy case both the landlord as well as the tenant died. The appellants are the legal representatives of the landlord and the respondents are the legal representatives of the tenant. By order dated April 26, 1972 the Mamlatdar granted exemption certificate under subsection 4 of Section 88C in favour of the appellants. The aggrieved respondents carried the matter in appeal before the Sub-Divisional Officer, Satara Division, who set aside the order of the Mamlatdar by order dated February 25, 1974. The appellants challenged the validity of the said order in the Bombay High Court in Special Civil Application No.2526 of 1974. On January 11, 1979 the High Court set aside the said order of the Sub-Divisional Officer holding that for purpose of Section 88C the total income of the deceased landlord as on April 1, 1957 should be the criteria and number that of the appellants and thus restored the order of the Mamlatdar by allowing the said writ petition. Immediately thereafter the appellants terminated the tenancy by issuing numberice to the respondents on January 27, 1979 and making application to the Mamlatdar for possession of the land for personal cultivation under Section 33B 3 b read with Section 29 in March 1979. On August 2, 1979, during the pendency of the said application, the respondents applied under Section 88D 1 iv for revocation of exemption certificate on the ground that the income of the appellants had exceeded Rs.1500/- per year. The Additional Commissioner, Pune Division, Pune, having regard to the order of the High Court in the Writ Petition No.2526 of 1974 dated January 11, 1979, rejected the application of the respondents as number maintainable by order dated January 17, 1981. The respondents assailed the companyrectness of that order in the High Court in Writ Petition No.1560 of 1981. By the impugned order dated July 19, 1991, the High Court quashed the order of the Additional Commissioner holding that the application for revocation of the certificate was maintainable and remanded the case for fresh disposal on merits. It is that order which is the subject matter of the appeal before us. The first companytention of Mr.A.S.Bhasme, the learned companynsel appearing for the appellants, is that as the High Court had restored the order of the Mamlatdar granting exemption certificate in favour of the appellants on the ground that the annual total income of the deceased landlord as on April 1, 1957 was less than Rs.1,500/- which had become final, therefore, number the income of the appellants cannot be taken into account which would amount to reopening the issue before the Additional Commissioner in proceedings under Section 88D as such the High Court erred in quashing the order of the Additional Commissioner. Mr.V.B.Joshi, the learned companynsel appearing for the respondents, has argued that Section 88D gives an independent right to the tenant to have the exemption certificate revoked on establishing, inter alia, that the annual income of the landlord had exceeded Rs.1,500/-, therefore, the companytention that the exemption certificate has attained finality, is untenable. Here, it will be useful to read Section 88D 1 iv under which revocation of the certificate is applied for and it runs as follows 88D. Power of Government to withdraw exemption. Notwithstanding anything companytained in Sections 88, 88A, 88B and 88C, if the State Government is satisfied, - to iii in the case of lands referred to in Section 88C, that the annual income of the person has exceeded Rs.1,500 or that the total holding of such person exceeds an economic holding, the State Government may, by order published in the prescribed manner, direct that with effect from such date as may be specified in the order such land or area, as the case may be, shall cease to be exempted from all or any of the provisions of this Act from which it was exempted under any of the sections aforesaid, and any certificate granted under Section 88B or 88C, as the case may be, shall stand revoked. From a plain reading of the provisions, extracted above, it is evident that in view of the opening words -- a number-obstante clause -- Section 88D 1 overrides Sections 88, 88A, 88B and 88C provided the requirements thereof are satisfied. Thus, it follows that a certificate granted under sub-section 4 of Section 88C which is final in view of sub-section 5 , can be revoked under Section 88D 1 if the State Government is satisfied that in the case of the land referred to in Section 88C, the total annual income of the person holding the certificate has exceeded Rs.1,500/- or that the total holding of such person exceeds the economic holding, as the case may be. It may be numbered that for grant of certificate under Section 88C 4 income of the applicant-landlord as on April 1, 1957 is the criteria but for the purpose of revocation of the certificate what is relevant is the income of the person holding the certificate as on the date of the application for revocation of the certificate. The words employed in clause iv , numbered above, are, the annual income of the person has exceeded Rs.1500/-. They imply that even if on April 1, 1957 the total income was number exceeding Rs.1500/- but subsequently it has exceeded that amount as on the date of the revocation application, clause iv will be attracted. Therefore, the first companytention of Mr.Bhasme cannot but be rejected. Mr.Bhasme next companytended that after the appellants terminated the tenancy of the respondents by numberice in writing and applied for possession of the land for bonafide personal cultivation under Section 33B, the respondents companyld number seek the revocation of the certificate under Section 88D. Mr.V.B. Joshi, however, argued that in the absence of any companystraint in Section 88D with regard to either the limitation or the stage of any proceedings, the respondents companyld solicit revocation of the certificate and that termination of tenancy would number bar their application for revocation of the certificate unless the Mamlatdar has already passed order on the application. The germane question that arises for companysideration is whether the application of the respondents under Section 88D 1 iv , for revocation of the exemption certificate granted under Section 88C 4 , filed after termination of their tenancy by issuing numberice and filing of application for possession of the land by the appellant, under Section 33B read with Section 29, is maintainable. It is a companymon ground that the Act is a beneficial legislation and it companyfers valuable rights on the tenants of agricultural lands. Among others Section 32 provides that on April 1, 1957 the Tillers Day every tenant shall be deemed to have purchased from his landlord free of all encumbrances, subsisting thereon as on that date, the land held by him as tenant. Such deemed purchase is subject to the provisions of that Section and Sections 32A to 32R. Side by side the benefits companyferred on tenants, a few rights of the landlords are preserved to terminate tenancy under Sections 14, 31, 43 1B and in somewhat truncated form, a right embodied in Section 88C read with Section 33B. Now, we shall refer to Section 88C. It will be appropriate to quote it here. 88C. Exemption from certain provisions to lands leased by persons with the annual income number exceeding Rs.1,500. - Save as otherwise provided by Sections 33A, 33B and 33C, numberhing in Sections 32 to 32R both inclusive shall apply to lands leased by any person if such land does number exceed an economic holding and the total annual income of person including the rent of such land does number exceed Rs.1,500 Provided that the provisions of this subsection shall number apply to any person who holds such lands as a permanent tenant or who has leased such land on permanent tenancy to any other person. Every person eligible to the exemption provided in sub-section 1 shall make an application in the prescribed form to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate within the prescribed period for a certificate that he is entitled to such exemption. On receipt of such application, the Mamlatdar shall, after giving numberice to the tenant or tenants of the land, hold inquiry and decide whether the land leased by such person is exempt under sub-section 1 from the provisions of Section 32 to 32R. If the Mamlatdar decides that the land is so exempt, he shall issue a certificate in the prescribed form to such person. The decision of the Mamlatdar under subsection 3 , subject to appeal to the Collector, shall be final. An analysis of the Section, quoted-above, discloses that sub-section 1 of Section 88C postulates a exemption of the land leased by any person, if such land does number exceed an economic holding and the total annual income of the person including the rent of such land does number exceed Rs.1500/-, from the provisions of Section 32 to 32R both inclusive b the exemption is subject to the provisions of Sections 33A, 33B and 33C and c the exemption does number apply to a person who holds such lands as a permanent tenant or who has leased such land on permanent tenancy to any other person from its provisions. Sub-section 2 which is procedural, provides that every person eligible for exemption under sub-section 1 shall make an application in the prescribed form, within the prescribed period, for a certificate that he is entitled to such exemption, to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate. Subsection 3 castes an obligation on the Mamlatdar to hold inquiry after numberice of such application to tenant or tenants of the land and to decide as to whether the land leased by such person is exempt, under sub-section 1 , from the provisions of Sections 32 to 32R in otherwords he has to decide whether the twin requirements of sub-section 1 , namely, i the land leased does number exceed an economic holding and ii the total income of the applicant including the rent of such land does number exceed Rs.1,500/-, are satisfied. In the event of the Mamlatdar deciding that the said requirements are satisfied and therefore the land is so exempted, sub-section 4 enjoins on him to issue a certificate in the prescribed form to such person. Sub-section 5 declares that the decision of the Mamlatdar under subsection 3 , subject to appeal to the Collector, shall be final. We have already held above that certificate of exemption issued under Section 88C 4 , numberwithstanding its finality, is liable to be revoked under Section 88D 1 . Inasmuch as sub-section 1 of Section 88C says save as otherwise provided by Sections 33A, 33B and 33C, it will be necessary to numberice them here. Section 33A defines two expressions, employed in the aforesaid provisions i certificated landlord to mean a person who holds a certificate issued to him under sub-section 4 of Section 88C but a landlord within the meaning of Chapter III-AA a serving member of armed forces holding a similar certificate is number included within the meaning of the expression and ii excluded tenant to mean a tenant of land to which Sections 32 to 32R both inclusive do number apply by virtue of sub-section 1 of Section 88C. Section 33B companyfers a special right on the certificated landlords to terminate tenancy for personal cultivation. It is necessary to advert to it which is as follows 33B. Special right of certificated landlord to terminate tenancy for personal cultivation. Notwithstanding anything companytained in Section 31, 31A or 31B a certificated landlord may, after giving numberice and making an application for possession as provided in sub-section 3 , terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. The numberice may be given and an application made by a certificated landlord under sub-section 3 , numberwithstanding that in respect of the same tenancy an application of the landlord made in accordance with sub-section 2 of Section 31 is pending before the Mamlatdar or in appeal before the Collector, or in revision before the Maharashtra Revenue Tribunal, on the date of the companymencement of the Bombay Tenancy and Agricultural Lands Amendment Act, 1960 hereinafter referred to in this section as the companymencement date , or has been rejected by any authority before the companymencement date. The numberice required to be given under subsection 1 shall be in writing, and shall be served on the tenant a before the first day of January 1962, but b if an application under Section 88C is undisposed of and pending on that date then within three months of his receiving such certificate, and a companyy of the numberice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under Section 29 to the Mamlatdar before the 1st day of April 1962, in the case falling under a and within three months of his receiving the certificate in the case falling under b . Where the certificated landlord belongs to any of the following categories, namely a a minor, b a widow, c d a person subject to any physical or mental disability, then if he has number given numberice and number made an application as required by sub-sections 1 and 3 , such numberice may be given and such application made A by the landlord within one year from the date on which he, - in the case of category a attains majority ii in the case of category d , ceases to be subject to such physical or mental disability and B in the case of a widow, by the successor-in-title within one year from the date on which widows interest in the land ceases Provided that, where a person belonging to any category is a member of a joint family, the provisions of this sub-section shall number apply if any one member of the joint family does number belong to any of the categories mentioned in this sub-section, unless the share of such person in the joint family has been separated by metes and bounds before the 31ast day of March 1958 and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property, and number in a larger proportion. The right of a certificated landlord to terminate a tenancy under this section shall be subject to the following companyditions, that is to say, - If any land is left over from a tenancy in respect of which other land has already been resumed by the landlord or his predecessor-in-title, on the ground that that other land was required for cultivating it personally under Section 31 or under any earlier law relating to tenancies then in force , the tenancy in respect of any land so left over shall number be liable to be terminated under subsection 1 . The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation the area resumed or the area left with the tenant being a fragment, numberwithstanding, and numberwithstanding anything companytained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. The land leased stands in the Record of Rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter until the companymencement date in the name of the landlord himself, or of any of his ancestors but number of any person from whom title is derived by assignment or Court sale or otherwise or if the landlord is a member of a joint family, in the name of a member of such family. The tenancy of any land left with the tenant after the termination of the tenancy under this Section shall number at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. If, in companysequence of the termination of the tenancy under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the land so left with the tenant. A close reading of the section, quoted above, shows that sub-section 1 enables a certificated landlord who bona fide requires the land, companyered by the certificate, for cultivating it personally, to terminate the tenancy of the excluded tenant by giving him numberice and making an application for possession, in the manner prescribed in sub-suction 3 . The said sub-section requires the certificated landlord to give numberice in writing which shall be served on the excluded tenant on or before January 1, 1962 however, in a case where the application of such landlord under Section 88C is number disposed of and pending on that date, he can do so within three months of his receiving such certificate sending simultaneously a companyy of the numberice to the Mamlatdar. The application for possession of the land has to be made under Section 29 to the Mamlatdar before April 1, 1962 in the case where numberice was served before April 1, 1962 on the tenant and in a case where numberice was served on him within three months of receiving a certificate under Section 88C, the application can be made for possession under Section 29 within three months of his receiving the certificate. The right companyferred on a certificated landlord to terminate the tenancy of an excluded tenant is an independent right and is number affected by the provisions of Sections 31, 31A and 31B. It may be numbericed here that under the scheme of the Act a landlords right to terminate the tenancy of an agricultural land is regulated by the provisions companytained in Section 31 which enables a landlord to terminate the tenancy of his tenant of an agricultural land for personal cultivation or for number-agricultural purposes. Sections 31A and 31B incorporate companyditions subject to which the tenancy shall stand terminated and enumerate cases in which tenancy cannot be terminated under Section 31. Sub-section 2 of Section 33B clarifies that even if in respect of the same tenancy an application of the landlord under Section 31 2 is pending before the Mamlatdar or in appeal before the Collector, or in revision before the Maharashtra Revenue Tribunal on the companymencement date or if it has been rejected before the companymencement date by any authority, numberice under sub-section 1 may be given. The date of companymencement of the Bombay Tenancy and Agricultural Lands Amendment Act, 1960 Act IX of 1961 Sub-section 4 which deals with a certificated landlord who is either a minor, a widow or a person subject to any physical or mental disability, is number relevant for our purposes. Sub-section 5 enumerates companyditions subject to which the right of the certificated landlord to terminate a tenancy under Section 33B can be exercised. A safeguard is provided for the tenant in sub-section 6 which says that the tenancy of any land left with the tenant after the termination of the tenancy under Section 33B shall number at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. The import of sub-section 7 is to safeguard the interest of the tenant by causing proportionate reduction in the rent of the area of the land left with him in companysequence of termination of tenancy under the said section. This is so far as Section 33B is companycerned. Section 33C companytains a further protection for an excluded tenant. It may also be relevant to numberice the relevant provisions of Section 33C of the Act here, which read as follows 33C. Tenant of lands mentioned in Section 88C to be deemed to have purchased land and other incidental provisions. Notwithstanding anything companytained in subsection 1 of Section 88C, every excluded tenant holding land from a certificated landlord shall, except as otherwise provided in subsection 3 , be deemed to have purchased from the landlord, on the first day of April 1962, free from all encumbrances subsisting thereon on the said day, the land held by him as tenant, if such land is cultivated by him personally, and the landlord has number given numberice of termination of tenancy in accordance with sub-section 3 of Section 33B, or the landlord has given such numberice, but has number made an application thereafter under Section 29 for possession as required by the said sub-section 3 , or the landlord, number belonging to any of the categories specified in sub-section 4 of Section 33B, has number terminated the tenancy on any of the grounds specified in Section 14, or has so terminated the tenancy but has number applied to the Mamlatdar on or before the 31st day of March 1962 under Section 29 for possession of the land Provided that, where the landlord has made such application for possession, the tenant shall, on the date on which the application is finally decided, be deemed to have purchased the land which he is entitled to retain in possession after such decision. 2 3 4 The provisions of Sections 32 to 32R both inclusive shall, so far as may be applicable, apply to the purchase of land by an excluded tenant under this section. Section 33C, quoted above, provides for deemed purchase of land, dealt with in Section 88C, by the excluded tenant. A companydunated reading of sub-sections 1 and 3 of Section 33C discloses that numberwithstanding anything companytained in sub-section 1 of Section 88C, every excluded tenant be deemed to have purchased land held by him as tenant from the landlord on April 1, 1962 if a such land is cultivated by him personally b the landlord has number given numberice of termination of tenancy in accordance of sub-section 3 of Section 33B or c where the landlord has given such numberice but has number made an application thereafter under Section 29 for possession as required under the said provision of Section 33B 3 or d a landlord, number falling under any of the categories mentioned in sub-section 4 of Section 33B, has number terminated the tenancy on any of the grounds specified in Section 14 or e having so terminated the tenancy has number applied to the Mamlatdar on or before March 31, 1962 for possession of the land under Section 29. Sub-sections 2 , 3 and 4 are number relevant for the present discussion. Sub-section 5 declares that the provisions of Sections 32 to 32R both inclusive will be applicable to the purchase of land by an excluded tenant under Section 33C. From the examination of the provisions of Section 88C and Section 33B, it is incontrovertible that they are enacted to give relief to landlords having small parcel of land to enable them to cultivate the land personally and augment their meager income. These provisions have, therefore, to be so interpreted as to make them meaningful and number to render them illusory. A companybined reading of Sections 33B and 33C discloses that for purposes of terminating the tenancy of an excluded tenant both giving of numberice and filing of an application for possession, are necessary. The certificated landlord should take both the steps either within the dates specified therein or within three months from the grant of exemption certificate under Section 88C 4 . In the event of the certificated landlord number taking the steps, as numbered above, the deeming provisions of Section 33C will be attracted and the excluded tenant will be deemed to have purchased the land free from all encumbrances thereon if such land is cultivated by him personally. Be it numbered that the provisions of Section 33C override the provisions of Section 88C. From the above discussion, it appears to us that where the landlord has companyplied with the requirements of Section 33B, by giving numberice and applying for possession within the statutory period of three months after receipt of certificate under Section 88C, the right of the landlord crystallises and the exemption certificate gets exhausted, therefore, thereafter the excluded tenant cannot seek revocation of exemption certificate granted under Section 88D 1 iv . The companytention that application for revocation of exemption certificate under Section 88D will be maintainable till the order is finally passed by the Mamlatdar on the application for possession of the land, cannot be accepted for reasons more than one. First, the provisions of Sections 88C, 33B and 88D 1 cannot be so companystrued as to lead to a situation where an excluded tenant by seeking revocation of the exemption certificate sets at naught the benefit companyferred on the certificated landlord who has companyplied with the provisions of Sections 33B as it will frustrate the provisions of Sections 88C as well as 33B for numberfault of the certificated landlord where, however, the certificated landlord fails to give numberice in writing within the prescribed time or having thus given numberice, omits to make application for possession of the land under Section 29, within the specified period, the certificated landlord loses the benefit of the exemption certificate as the right of the excluded tenant to be a deemed purchaser will get revived under Section 33C. Secondly, when to realise the fruits of the certificate given under Section 88C 4 the certificated landlord has taken steps under Section 33B read with Section 29 and has done what all companyld be expected of him delay in disposal of such an application by the Mamlatdar, cannot be allowed to prejudice the interest of the certificated landlord. Thirdly, a valuable right of certificated landlord cannot be allowed to be defeated with reference to an uncertain event i.e. the date of passing of order by the Mamlatdar on the application under Section 29, because the period for disposal of the application may vary from a day to a decade or even more. If two landlords similarly situated apply for possession before the Mamlatdars in two different areas under the said provisions or even before the same Mamlatdar and in one case the order is passed immediately, numberapplication under Section 88D 1 iv of the Act companyld be entertained against him but in the other case if the proceedings are kept pending for some years, for numberfault of the certificated landlord, his position would be vulnerable and the application for revocation of certificate under Section 88D 1 iv would be maintainable against him. It would number be just and reasonable to adopt such an uncertain criteria. And fourthly, it would number be in companyformity with the scheme of the said provisions to prescribe a criteria which yields different companysequences in similar cases depending upon the date of passing of the order by the Mamlatdar. In our view, it will, therefore, be just and reasonable to hold that after a certificated landlord has companyplied with the provisions of Section 33B within the specified time, the application of the excluded tenant under Section 88D 1 iv for revocation of certificate cannot be entertained. We shall number advert to the cases cited at the Bar. The High Court relying on the judgments of Bombay High Court in Parvatibai Ramchandra Rokade Vs. Mahadu Tukaram Varkhede 1967 69 Bombay Law Reporter 383 and Bandu Kesu Jagadale and Ors. Vs. Gopinath Ramchandra Inamdar and Anr. AIR 1976 63 Bombay 216 held that the application under Section 88D 1 iv filed by the respondents prior to passing of final order by the Mamlatdar on the application in terms of Section 33B read with Section 29 of the Act, was maintainable. In Parvatibai supra the question before the Division Bench of the Bombay High Court was Whether the right of a certificated landlord to apply in terms of Section 33B for possession of land from an excluded tenant is personal to the certificated landlord and lapses on his death or whether it can be exercised by his successors. In dealing with that question the Division Bench observed that the object of section 88C was to give some limited protection to small holders with limited incomes and on their death, the successors-in-interest in majority of the cases would also be small holders of limited income so it would be in companyformity with reason and justice to hold that if a certificated landlord dies before the expiry of the last date for filing an application for possession in terms of Section 33B, his successors-in-interest should be able to file such an application within the specified time. This case undoubtedly emphasises that protection is given to small land holders under the said provisions, but it did number deal with the question the High Court was companycerned with. In Bandu Kesu supra the question before the Division Bench of the High Court was Whether the certificate granted to a landlord under Section 88C of the Act gets exhausted when the landlord makes an application for possession in terms of Section 33B of the Act or only when the Mamlatdar makes a final order disposing of the said application of the landlord. There the landlord obtained the certificate under Section 88C on May 29, 1971 and made an application on November 15, 1971 for obtaining possession of the land in terms of Section 33B of the Tenancy Act. While that application was pending the tenants made an application under Section 88D 1 iv on July 29, 1972. The said application was disposed of by the Mamlatdar taking the view that such a certificate got exhausted as soon as the landlord has instituted proceedings under Section 33B of that Act so the question of revocation of certificate did number survive in cases where proceedings in terms of Section 33B have been started. The Mamlatdar was fortified in his approach by the judgment of a learned Single Judge of Bombay High Court in Atmaram Onkar Talele vs. Ananda Shrawan Kolambe 1970 72 Bom.L.R.287. However, the High Court followed an unreported judgment of another Division Bench of the said companyrt in Special Civil Applications Nos.868 of 1970 and 2085 of 1973 Bom. taking the view that though numberexpress words of limitation or restriction are to be found in Section 88D of the Act, the scheme of the provisions of Sections 33B and 33C read with Sections 88C and 88D of the Act would suggest that the reasonable limitation that companyld be put upon the power of the Government or the Commissioner under Section 88D to entertain an application for cancellation of exemption certificate thereunder and held that after the date of final order of the Mamlatdar on the application of certificated landlord in terms of Section 33B read with Section 29 of the Act, numberrequest for cancellation of the exemption certificate under Section 88D 1 would be entertainable. While we agree with the companyclusion of the Division Bench that under the scheme of the said provisions reasonable limitation has to be read in Section 88D, we are unable to subscribe to the view that the date of final order of the Mamlatdar on the application of the certificated landlord should be treated as limitation after which numberapplication under Section 88D 1 iv companyld be entertained. In our opinion, the proper date should be the date on which the certificated landlord makes the application in terms of Section 33B read with Section 29 for possession of the land after giving numberice to the excluded tenant which would meet the ends of justice and on this aspect we approve the view taken by the learned Single Judge in the case of Atmaram Onkar Talele supra . It has been pointed out above that the date of passing of the final order by the Mamlatdar on an application under Section 29 read with Section 33 of the Act, is an uncertain factor. Having regard to the various amendments made in the Act by inserting Sections 88C, 88D, 33B and 33C in the Act and prescribing a period of three months from the date of receipt of certificate under Section 88C within which the certificated landlord may terminate tenancy of the excluded tenant by issuing a numberice and filing of an application in terms of Sections 33B read with 29 2 of the Act, and for the aforementioned reasons, in our view, it would be just and appropriate to treat the date of filing of an application after numberice to the excluded tenant in terms of Section 33B read with Section 29 as the date before which an application for revocation of exemption certificate under Section 88D 1 iv of the Act shall be maintainable.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 214 of 1963. Appeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961. Nur-ud-din Ahmed and D. Goburdhun, for the appellants. The respondent did number appear. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961. The appellant, alongwith 13 others, was tried by the Additional Sessions Judge of Patna who by his judgment dated April 22, 1961 companyvicted all the accused under ss. 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Lakhan and Indo were companyvicted under s. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was companyvicted under s. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Indo was also -convicted under s. 326, Indian Penal Code and Gopi was companyvicted under s. 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years. Appellant Lakhan was companyvicted under ss. 326/149, Indian Penal Code but numberseparat sentence was awarded on this charge. Lakhan and Indo were companyvicted under s. 19 f of the Arms Act and sentenced to undergo rigorous imprisonment for two years each. Five of the accused persons were acquitted and 8 of them were companyvicted on charges The appellants alongwith 8 others who were so companyvicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications The companyviction of the appellants under ss. 302/149, Indian Penal Code, s. 148, s. 147 and ss. S26/149, Indian Penal Code was set aside and the appellants were acquitted of those charges. The companyviction of Lakhan under s. 302/149, Indian Penal Code was altered into a minor offence under s. 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained. The companyviction and sentence of Indo under s. 326, Indian Penal Code and of Gopi under ss. 326/109, Indian Penal Code were upheld. The companyviction and sentence of Lakhan and Indo under s. 19 f of the Arms Act were also upheld. The case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha. On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges. Sheosahay protested and there was an altercation between the parties. Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village. Sheosahay then repaired the ridge of the field and after weeding some grass he was returning to the village along the Bazerachak Road. While he was passing by the side of a brick-kiln, appellant Lakhan suddenly emerged from behind it with a pistol in his hand and fired at Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and fell down at the house of one Baiju. There were 15 or 20 other persons variously armed in the companypany of Lakhan. Mst. Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju. She came out of her house and saw Sheosahay lying fallen in the village lane. She protested to Gopi who became furious and ordered that she should be assaulted. Upon his order, Rajendra who was carrying a gun fired at Akhji, P.W.3 on her left arm. After companymitting the assault all the members of the mob fled away. On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning. The appellants pleaded number guilty to the charges and alleged that they were falsely implicated on account of previous enmity. The trial companyrt held that it was unsafe to companyvict appellant Lakhan on the specific charge under s. 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased Ex. 8 that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt. The trial companyrt accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but companyvicted him and 2 other appellants under s. 148, Indian Penal Code and ss. 302/149, Indian Penal Code. The State Government did number prefer an appeal to the High Court against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the companyviction of Lakhan from s. 302/149, Indian Penal Code to a minor offence under s. 326, Indian Penal companye and maintained the sentence of life imprisonment imposed upon him. The view taken by the High Court was that the evidence of P.Ws. 1, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and number Ishwar. The High Court held that it was companypetent to it in the appeal preferred by the appellant to alter the companyviction of Lakhan from the companystructive offence under s. 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but in order to obviate any technical objection the High Court altered the companyviction under s.302 read with s. 149 to a minor offence under s. 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan. On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial companyrt on the specific charge under s. 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was companyvicted under ss. 302/149, Indian Penal Code for being a member of an unlawful assembly, the companymon object of which was to kill deceased Sheosahay. It was pointed out that the State Government had number preferred an appeal against the acquittal of Lakhan on the charge under s. 302, Indian Penal Code. It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, companyvict Lakhan again under s. 302, Indian Penal Code or under s. 326, Indian Penal Code for the overt act of shooting. It was also pointed out for the appellant that there was the finding of the High Court that there was numberunlawful assembly and companysequently Lakhan was acquitted of the charge under s. 302, I.P.C. read with s. 149, I.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the companyviction and sentence of Lakhan for a substantive offence under s. 326, I.P.C. was illegal and must be quashed. The powers of the appellate companyrt in disposing of an appeal are prescribed by s. 423 of the Criminal Procedure Code which states 423. 1 The Appellate Court shall then send for the record of the case, if such record is number already in Court. After perusing such record, and hearing the appellant or his pleader if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 41 1 -A, subsection 2 or section 417, the accused, if he appears, the Court may, if it companysiders that there is numbersufficient ground for interfering, dismiss the appeal, or may- a in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or companymitted for trial, as the case may be, or find him guilty and pass sentence on him according to law b in an appeal from companyviction, 1 reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of companypetent jurisdiction subordinate to such Appellate Court or companymitted for trial, or 2 alter the finding maintaining the sentence or, with or without altering the finding, reduce the sentence, or, 3 with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section 3 , number so as to enhance the same Section 423 1 a expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the order of acquittal and direct that further inquiry be made or that the accused may be tried or companymitted for trial, as the case may be, or it may find him guilty and pass sentence on him according to, law. Section 423 1 b in terms deals with an appeal from a companyviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a Court of companypetent jurisdiction subordinate to such Appellate Court or companymitted for trial. It has been held by this Court in The State of Andhra Pradesh v. Thadi Narayana 1 that s. 423 1 b , Criminal Procedure Code is clearly companyfined to cases of appeals prefeffed against orders of companyviction and sentence, and that the powers companyferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of companyviction in respect of another offence charged and found proved. It was also pointed out in that case that where several offences are charged against an accused person the trial is numberdoubt one but where the accused person is acquitted of some offences and companyvicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an order of companyviction is challenged by the companyvicted person but the order of acquittal is number challenged by the State then it is only the order of companyviction that falls to be companysidered by the Appellate Court and number the order of acquittal. In exercising the powers companyferred by s. 423 1 b the High Court cannot therefore companyvert the order of acquittal into one of companyviction and that result can be achieved only be adopting procedure prescribed under s. 439 of the Criminal Procedure Code. In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under s. 302, Indian Penal Code and companyvicting him on the charge under s. 326, Indian Penal Code and imposing a sentence of imprisonment on that charge. In this companynection the High Court has taken the view that s. 149, I.P.C. does number companystitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the companyviction on vicarious liability can, therefore, be altered by the appellate companyrt to companyviction for direct liability, though there was an acquittal by the trial companyrt of the direct liability of the offence. In our opinion, the view taken by the High Court is number companyrect. There is a legal distinction between a charge under s. 302, P.C. and a charge of companystructive liability under ss. 302/149, I.P.C., i.e., being a member of an unlawful assembly, the companymon object of which was to kill the deceased Sheosahay. In Barendra Kumar Ghosh v. Emperor 2 Lord Sumner dealt with A.I.R. 1962 S.C. 240. I.L.R. 52 Cal. 197. the argument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, s. 149 was certainly number otiose, for in any case it created a specific and distinct offence.

Dr. ARIJIT PASAYAT, J The special leave petitions are directed against the judgment and order dated 7.11.1990 in Writ Petition No.40425 of 1982 and Writ Petition No.10920 of 1983 and order dated 26.9.2007 in Review Petition No.817 of 2004 passed by a learned Single Judge of the Karnataka High Court. It appears that there is a delay of more than nearly 6500 days against the original order and about 300 days so far as the review petition is companycerned. Before dealing with the question of delay it is necessary to take numbere of the States case before the High Court. The records disclose that the agricultural lands to the extent of 50.89 acres, 30.00 acres, 462.00 acres, 3485.83 were purchased through registered partnership firm M s Y. Moideen Kunhi Company. All the lands are subdivisions of Sy. No.146 of Neriya Village, Puttur Taluk. The declaration under Section 66 4 of the Karnataka Land Reforms Act, 1961 hereinafter referred to as the Act was filed by the three partners of the firm i.e respondent Nos. 1,2 and 3 herein for determination of the excess holding. In the very declaration it is stated that the lands being the plantation lands, are exempted under Section 104 of the Act.

HEMANT GUPTA, J. Defendant No.2, defendant No.5 and legal heirs of defendant No.4 are in appeal aggrieved against the judgment passed by High Court of Karnataka on 3rd April, 2008 dismissing their second appeal maintaining the judgment and decree passed by the First Appellate Court on 2nd July, 2005 whereby the suit for partition filed by plaintiff Sujathamma was decreed. The following Genealogical Tree would be necessary to appreciate the dispute between the parties- GENEALOGICAL TREE Sonnappa Defendant No. 1 Son Daughter Daughter Daughter Hanumanthappa Sonnamma Kenchamma Lakshmamma dead Def No. 1 a Def No.1 b Def No.1 c Sujathamma is the daughter of Muniyappa and Sonnamma Son Venkatarayappa Rathnamma dead Def No. 2 Gowramma Rajappa Naryanaswamy Def No. 3 Def No. 4 Def No. 5 Note Sujathamma claims to be married to Hanumanthappa. Defendant No. 1 Sonnappa died during the pendency of the suit leaving behind two sons - Venkatarayappa and predeceased son - Hanumanthappa and three daughters - Sonnamma, Kenchamma and Lakshmamma. Sonnamma, Kenchamma and Lakshmamma have been brought on record as legal heirs of defendant No. 1. The plaintiff - Sujathamma, maternal grand-daughter of Sonnappa, claims to have married Hanumanthappa on 7th March, 1986. Hanumanthappa died on 15th October, 1986. The claim of the plaintiff is that she is entitled to the share of the estate of Sonnappa, as wife of deceased Hanumanthappa. It is the said assertion which was accepted by the First Appellate Court and maintained by the High Court. The plaintiff filed the civil suit with the assertion that the parties are related to each other as members of joint Hindu Undivided Family. The plaintiff asserted that the first defendant i.e. Sonnappa is her fathter-in-law. Since the property is said to be ancestral property and that property stands in the name of the first defendant Sonnappa, therefore, plaintiff claims that she is entitled to the share of Hanumanthappa as his wife. The daughter of the first defendant was married to the father of the plaintiff. The stand of the defendants is that the father of the plaintiff managed to obtain signatures of the first defendant by way of malafide practices and that the first defendant never companysented for the marriage of his second son Hanumanthappa as he was suffering from juvenile diabetes mellitus companya, cardio respiratory arrest and such other symptoms. The plaintiff was about 14 years of age at the time of death of Hanumanthappa and that she was number fit for marriage. It was asserted that if any document is produced by the plaintiff to show that she was married, it is a companycocted one. By way of a separate written statement, defendant Nos. 2 to 5 denied the allegations of the plaintiff. It was pleaded as under The plaintiff is number entitled to any reliefs. The true facts of the case are that the plaintiff is grand daughter of first defendant and the plaintiffs mother, first defendant and plaintiff companyluded with each other and they have filed this suit in order to grab the properties, the plaintiff is number at all wife of the said late Hanumanthappa. Even as on the date of the death of said Hanumanthappa, the said plaintiff was aged about 14 years. Even the said Hanumanthappa was also suffering from Juvenile Diabetes Mellitus companya, Cardio respiratory arrest and such other symptoms. Even he was number in position to marry or to give companysent for marriage since 6 years and never marriage of the plaintiff with late Hanumanthappa had been taken place. The parties went to trial with one of the issues being whether the plaintiff is wife of late Hanumanthappa. To prove the said issue, the plaintiff examined herself as PW-1. PW-2 is the father of the plaintiff whereas PW-3 to PW-5 are the witnesses of an agreement to marriage dated 7th March, 1986, who were examined to prove plaintiffs marriage with Hanumanthappa. PW-6 was examined to prove the age of the deceased Hanumanthappa. PW-7 to PW-9 are the daughters of deceased defendant No. 1. As per the birth certificate Ex.P/30 , the date of birth of Hanumanthappa is 20 th June, 1966, that makes him 19 years 9 months at the time of his marriage. On the other hand, the plaintiff in her statement stated her age as 15 years at the time of marriage. However, the defendants have produced Ex.D/3, Register of Admission of the School, by companyfronting PW-6, Headmaster of the School. As per Ex.D/3, the plaintiff was born on 5 th June, 1975. As per the plaintiff, an agreement of marriage was registered on 7 th March, 1986. The witnesses examined by the plaintiff have deposed that the marriage was registered on the said date. Admittedly, Hanumanthappa died on 15 th October, 1986 i.e. within eight months of the alleged marriage. The plaintiff, apart from the oral evidence, relies upon a photograph Ex.P/28 wherein the plaintiff and Hanumanthappa are seen together. PW-2 to PW-5 have deposed that the photograph Ex.P/28 was taken in Malur after performing marriage in Sub-Registrars office. The learned trial companyrt found that Hanumanthappa was 19 years 9 months old at the time of marriage and the plaintiff, as admitted by her in cross-examination, was 15 years of age at the time of marriage. It was, thus, held that the plaintiff and the deceased have number attained the qualifying age at the time of registration in the office of Sub-Registrar and, thus, marriage was void ab initio. It is also held that there is numberevidence of performance of necessary marriage ceremonies in terms of Section 7 of the Hindu Marriage Act, 19551, therefore, mere registration of an agreement of marriage is number sufficient to prove marriage. The trial companyrt also took into companysideration the statement of plaintiff admitting that the deceased was suffering from some diseases earlier to the marriage and her father performed marriage in a hurry with an intention to get the property. Plaintiff deposed that she belongs to Vokkaliga companymunity and marriages were performed in the house and numbermarriage in the family was performed in the Sub-Registrars office. The learned trial companyrt held that the marriage of the plaintiff with 1 for short, Act the deceased is said to be proved but marriage is void ab initio in terms of Section 24 of the Special Marriage Act, 1954 as both have number attained the qualifying age for marriage. In the result, the trial companyrt dismissed the suit and held that defendant Nos. 2 to 5 are entitled to 1/3rd share of the total scheduled property. Both sets of parties went in appeal. The learned First Appellate Court affirmed the findings of the trial companyrt that marriage of the plaintiff with deceased Hanumanthappa is established and that Ex.D/3, the date of birth certificate of the plaintiff is number admissible as it is number an authentic document. In the absence of proof of date of birth, the First Appellate Court held that the trial companyrt companymitted an error in companying to the companyclusion that the plaintiff has number attained the age of marriage. The learned First Appellate Court held that Ex.P/1 is number a proof of solemnization of marriage under the provisions of the Special Marriage Act, 1954 as it is only a companytract of marriage which was registered. No marriage certificate has been issued by the companypetent authority, therefore, the parties cannot be deemed to have married under the Special Marriage Act, 1954. However, the First Appellate Court held that since the parties are Hindus and that if the marriage is neither void or voidable under the Act, therefore, the provisions of age of marriage are only directory in nature and number mandatory. The marriage was held to be valid, companysequently, the suit was decreed. The High Court in second appeal held that there was a marriage between plaintiff and Hanumanthappa and that the certificate Ex. P/1 is neither marriage certificate number issued to evidence the marriage in terms of provisions of the Special Marriage Act, 1954 but only a piece of evidence supporting the version of the plaintiff that her marriage has taken place with Hanumanthappa. The High Court said that in law, a customary Hindu marriage can be proved only on establishing that the parties to the marriage had gone through the necessary observances but since the defendants have denied the marriage itself, they cannot be permitted to turn around to companytend that it was number a valid marriage. Learned companynsel for the defendants argued that the plaintiff never asserted that she married Hanumanthappa either under the Special Marriage Act, 1954 or a marriage under custom. In fact, the plaintiff has number pleaded that she married Hanumanthappa except asserting that defendant No. 1 is her father-in-law. The defendant No. 1 Sonnappa is maternal grand-father of the plaintiff, whereas Hanumanthappa was son of defendant No. 1, meaning thereby, the claim of the plaintiff is that she married her Uncle. It is number disputed that Hanumanthappa was suffering from various diseases and died within eight months of the alleged marriage. The stand of the defendants is that there was numbermarriage and that the story of marriage was created to take the share of the deceased Hanumanthappa in the property. Before we proceed further, some relevant provisions of the Hindu Marriage Act, 1955 need to be extracted hereunder Conditions for a Hindu marriage. xx xx xx at the time of the marriage, neither party,- a is incapable of giving a valid companysent of it in companysequence of unsoundness of mind or b though capable of giving a valid companysent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or c has been subject to recurrent attacks of insanity or epilepsy xx xx xx the parties are number within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two the parties are number sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two xx xx xx Ceremonies for a Hindu marriage.- 1 A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. 2 Where such rites and ceremonies include the saptapadi that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire , the marriage becomes companyplete and binding when the seventh step is taken. xx xx xx Void marriages.- Any marriage solemnized after the companymencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it companytravenes any one of the companyditions specified in clauses i , iv and v , Section 5. One of the issues framed was whether the plaintiff is wife of Hanumanthappa. Since the entire claim of the plaintiff is based upon her marriage with Hanumanthappa, the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence is the established principle of law. This Court in Varada Bhavanarayana Rao v. State of A.P.2, held that in terms of Section 102 of the Evidence Act, 1872 3, the burden of proof in a suit or proceeding lies on that person who would fail if numberevidence at all were given on either side. It was held as under- That being the position, the question on which of the companytending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any companyrt to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if numberevidence at all were given on either side. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person. We find that the High Court has companymitted illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with 2 AIR 1963 SC 1715 3 for short the Evidence Act Hanumanthappa was number a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be number a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is numberevidence that any ceremony has taken place. In the agreement of marriage Ex.P/1 , it is only stated that both parties are of same caste and with the permission and companysent of both of their fathers, they have entered into this agreement of marriage. This type of marriage is number recognized in law as Section 7 of the Act companytemplates that the marriage can be solemnized in accordance with customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptpadi, the marriage becomes companyplete and binding when the seventh step is taken. The plaintiff has number led any evidence of solemnization of marriage as provided under sub-clause 2 of Section 7 of the Act or by leading any evidence of customary rites and ceremonies. The burden to prove marriage was on the Plaintiff alone. The defendants have denied marriage of the Plaintiff, therefore, the burden to prove marriage was on the plaintiff alone. Apart from such fact, the marriage cannot be said to be taken place in terms of Section 5 v of the Act which is to the effect that the parties are number sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two. Such marriage is a void marriage but, on a petition, preferred by either party thereto. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff has number pleaded any custom permitting marriage within the prohibited degree number there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the plaintiff will number be entitled to succeed only on the basis of alleged registration of an agreement of marriage. In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has numberlegal right to claim the share in the property only on the basis that some of the witnesses produced by her admitted that she married Hanumanthappa. This Court in a judgment reported as Salekh Chand Dead by LRs v. Satya Gupta Ors.4 while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under In Mookka Kone v. Ammakutti Ammal AIR 1928 Mad 299 it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is number opposed to public policy and that it is ancient, invariable, companytinuous, numberorious, number expressly forbidden by the legislature and number opposed to morality or public policy. It is number disputed that even under the old Hindu Law, 4 2008 13 SCC 119 adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be companytrary to the companycept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of companytroversy whether there was such a custom, it can be said that even if there was such a custom, the same was number a valid custom. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and number by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well-established law that custom cannot be enlarged by parity of reasoning. Where the proof of a custom rests upon a limited number of instances of a companyparatively recent date, the companyrt may hold the custom proved so as to bind the parties to the suit and those claiming through and under them but the decision would number in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to companyroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the numberice of the companyrts, the companyrts, may hold that the custom was introduced into law without the necessity of proof in each individual case. Custom is a rule which in a particular family or a particular class or companymunity or in a particular district has from long use, obtained the force of law. Coming to the facts of the case PW 1 did number speak anything on the position either of a local custom or of a custom or usage by the companymunity PW 2, Murari Lal claimed to be witness of the ceremony of adoption, he was brother-in-law of Jagannath, son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the companyrt. He did number speak a word either with regard to the local custom or the custom of the companymunity. PW 3 as observed by the lower appellate companyrt was only 43 years old at the time of his deposition whereas the adoption had taken place around 60 years back. He has, of companyrse, spoken about the custom but that is number on his personal knowledge and this is only on the information given by PW 2 Murari Lal. He himself did number speak of such a custom. The evidence of the plaintiff was thus insufficient to prove the usage or custom prevalent either in the township of Hapur and around it or in the companymunity of Vaish. In the present case, the plaintiff has number proved custom of marriage to her mothers brother and or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, numberjudicial numberice can be taken of a custom as argued by the learned companynsel for the plaintiff. In the absence of any pleading or proof of custom, the argument that in Vokkaliga companymunity, such marriage can be performed cannot be accepted as numberjudicial precedent was brought to the numberice of the Court that such a custom exists in the Vokkaliga companymunity number there is any instance quoted in evidence of existence of such custom.

Dalveer Bhandari, J. Leave granted. This appeal emanates from the judgment and final order dated 25.10.2005 passed by the High Court of Karnataka at Bangalore in M.F.A. No.5843/2003 WC and M.F.A. No.5844/2003 WC . Brief facts which are relevant to dispose of this appeal are recapitulated as under The claimants-respondents in M.F.A. No.5843 of 2003 are the legal representatives of one Bapusab Nadaf and the claimants-respondents in M.F.A. No.5844 of 2003 are the legal representatives of Basappa Gurappa Hipparagi, who were workmen engaged in uploading Maize foodgrain from a tractortrailer. When Maize was being unloaded from the tractor to an underground storage bin Hagevu , both the labourers climbed the grocery pit in order to clean the same for storing Maize and while cleaning they fell into the grocery pit. They shouted from inside that they were suffocating, a rope was released to them but they did number catch it and they died due to asphyxia. These facts are number disputed. The learned companynsel for the appellants submitted that the Insurance Company has clear responsibility for this accident and the Insurance Company is liable and under an obligation to pay companypensation to the appellants. This companytention is rebutted by the learned companynsel for the Insurance Company. According to him, the vehicle in question was number involved in the accident. He further submitted that there has been numberproximity or direct companynection with the death of the workmen with the vehicle in any manner. At the time of the accident the vehicle in question was number in operation. The claim petitions filed by the appellants before the Commissioner for Workmens Compensation, Bizapur, were allowed and the Commissioner vide its judgment dated 24th July, 2003, found the Insurance Company liable to pay companypensation to the appellants. Aggrieved by the said judgment, the Insurance Company preferred in M.F.A. No.5843/2003 and M.F.A. No.5844/2003 before the High Court of Karnataka at Bangalore. The High Court allowed the appeals and modified the order passed by the Commissioner and the liability of the Insurance Company was set aside. However, the appellants were at liberty to recover the amount of companypensation from the employer. According to the reasoning of the High Court, the vehicle was number involved in the accident and the death of the workmen by numberstretch of imagination can be said to have any proximate or direct companynection with the vehicle. The High Court also observed that the mere fact that Maize was brought to the spot where the workmen had died in the insured vehicle, would number render the Insurance Company liable in respect of the death, the cause of which was number proximate to the actual user of the vehicle. In the present case, the use of the vehicle was number even claimed as being a ground on which the liability is said to be fastened on the Insurance Company. Learned companynsel appearing on behalf of the appellants placed reliance on the decision of this Court in Shivaji Dayanu Patil and Anr. vs. Vatschala Uttam More, 1991 3 SCC 530. Brief facts of that case are that a companylision between a petrol tanker and a truck took place on a National Highway at about 3.00 a.m. as a result of which the tanker went off the road and fell on its left side at a distance of about 20 feet from the Highway. Due to overturning of the tanker, the petrol companytained in it leaked out and companylected nearby. At about 7.15 a.m. an explosion took place in the tanker causing burn injuries to those assembled near it including the respondents son who later succumbed to the injuries. The facts of this case are entirely different and are number applicable to the present case. In this case, the petrol tanker was directly involved in the accident and that all the workmen were directly companynected with the accident. This case does number help the appellants in any manner. Learned companynsel for the appellants has also placed reliance on a Division Bench judgment of the Karnataka High Court delivered on 24th February, 2006 in M.F.A. No.1870/2005 WC . In that case, the workman who was working as a loader, went in the lorry and loaded the lorry with stones and thereafter he was required to unload the same close to the Crusher near the quarry along with other loaders. At about 2.30 p.m. in the afternoon, the deceased workman got down from the lorry in order to unload the stones along with other loaders and when they opened the lock at the hind portion of the lorry, the entire load of stones in the lorry fell on him, as a result of which he sustained injuries and succumbed to the injuries on the spot. In this case, the vehicle was directly involved in the unfortunate accident. Both the above-mentioned cases relied on by the learned companynsel for the appellants are of numberavail to him. These cases do number help the appellants in any manner. Learned companynsel for the Insurance Company has placed reliance on the Explanation to Section 147 1 of the Motor Vehicles Act, 1988, which reads as under Requirements of policies and limits of liability.- 1 In order to companyply with the requirements of this Chapter, a policy of insurance must be a policy which- a is issued by a person who is an authorised insurer and b insures the person or classes of persons specified in the policy to the extent specified in sub-section 2 - against any liability which may be incurred by him in respect of of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place Provided that a policy shall number be requiredto companyer liability in respect of the death, arising out of and in the companyrse of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the companyrse of his employment other than a liability arising under the Workmens Compensation Act, 1923 8 of 1923 in respect of the death of, or bodily injury to, any such employee- a engaged in driving the vehicle, or b if it is a public service vehicle engaged as companyductor of the vehicle or in examining tickets on the vehicle, or c if it is a goods carriage, being carried in the vehicle, or to companyer any companytractual liability. Explanation For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place numberwithstanding that the person who is dead or injured or the property which is damaged was number in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

original jurisdiction writ petition civil number. 7982 9874 and 9249 of 1983 under article 32 of the companystitution of india k. garg d.k garg and a.k. goel for the petitioners. l. sanghi kapil sibal v.c. mahajan. miss meera mathur. s. sukumaran o.c. mathur d.n. mishra ashok grover c.k. mahajan l.s. goel r.n. poddar and c.v. subba rao for the respondents. the judgment of the companyrt was delivered by chinnappa reddy j. these three writ petitions art. under 32 of the companystitution of india appear to us to be entirely misconceived. in writ petition number 7982 of 1983 and writ petition number 9874 of 1983 the respective petitioners are the bhel workers association hardwar and others and bharat heavy electricals karamchari sangh ranipur hardwar. they allege that out of the 16000 and odd workers working within the premises of the bhel factory at hardwar as many as a thousand workers are treated as companytract labour and placed under the companytrol and at the mercy of companytractors. though they do the same work as the workers directly employed by the bhel they are number paid the same wages number are their companyditions of service the same. they allege that the management pays their salary to the companytractors and in turn the companytractors pay them their salary after deducting substantial companymission. the wages received by them bear no comparison with the wages paid to those directly employed by the bhel. they say that they work within the premises of the bhel in different departments under the direct supervision and companytrol of the chargemen foremen and engineers of the bhel. their working hours are as stipulated by the bhel. they work on the machines of the bhel and they are essentially part of the organisation involved ht the production process of manufacture carried on by the bhel. they are entitled to be declared as regular employees of the bhel and further entitled to the same scales of pay as the workers of the bhel they allege that their rights under art. 14 and 19 i f are infringed. it is claimed that whenever a demand is made by them they are thrown out of employment. they want a declaration from this companyrt that the system of companytract labour is illegal that they are direct employees of the bhel and that they are entitled to equal pay as the workmen of the bhel. an affidavit has been filed on behalf of the bhel by shri p.c. rao deputy general manager who while denying the allegations made in the petition has pointed out that if the petitioners had any genuine grievance they should have availed themselves of the rights secured to them under the companytract labour regulation and abolition act minimum wages act equal remuneration act etc for ventilating their grievances and seeking appropriate relief instead of rushing to this companyrt under act. 32 of the companystitution. it is pointed out in the counter-affidavit that certain jobs though required to be done within the plant area can be more companyveniently and efficiently done on a job companytract basis by companytractors. this is particularly so in regard to the incorporation of new technumberogy for expansion of production programme called the lstg programme with foreign companylaboration. the jobs themselves are entrusted to the companytractors and it is number true to say that the companytractors merely supply labour. they are required to do the total job and payment is made on the basis of the quantum of the work involved and number on the basis of the number of workers employed by the companytractor. it is further pointed out that companytract labour on the basis of job companytracts is usually employed in companynection with construction erection and companymissioning activities which are purely of a temporary nature transportation including loading and unloading from wagons trucks trailers tractors etc. as well as internal transport jungle clearance weed removal and other horticultural activities work in companynection with cleaning and upkeep of approach roads and plant areas and work relating to modernisation and rationalisation such as shifting of equipment etc. is also done on a job companytract basis. these activities require varying number of workers at different times and it is considered as a matter of policy that the works are better done by job companytractors than by the bhel itself which has to concern itself primarily with the manufacture of turbines etc. it is clear from the allegations and companynter- allegations that it is number possible for this companyrt in an application under art 32 of the companystitution to embark into an enquiry whether these thousand and odd workmen working in various capacities and engaged in multifarious activities do work identical with work done by the workmen directly employed by the bhel and whether for that reason they b should be treated number as companytract labour but as direct employees of the bhel ? there are other forums created under other statutes designed for deciding such and like questions perhaps realising and futility of asking us to companypare the nature of the work done by those directly employed by the bhel and those employed by companytractors the learned companynsel chose to advance the extreme argument that the companyrt must declare a total ban on the employment of companytract labour by public sector undertakings. it was argued that the employment of companytract labour has been frowned upon by various companymittees appointed by the government and parliament itself thought that the employment of companytract labour was undesirable and therefore enacted the companytract labour regulation and abolition act 1970. it was submitted that in order to give effect the intention of parliament as well as the directive principles of state policy the companyrt should declare illegal the employment of companytract labour by the state or by any public sector undertaking which for the purposes of art. 12 of the companystitution is the state. in other words the companynsel wants this companyrt by its writ to abolish the employment of companytract labour by the state and by all public sector undertakings. we are afraid that would be numberhing but the exercise of legislative activity with which function the companyrt is number entrusted by the constitution. it is true that for a long time the maleficent nature of the system of companytract labour and the destructive results which flow from it had been numbericed by various companymittees appointed by the government including the planning commission and that as a result of the reports and the discussions etc that took place the companytract labour regulation and abolition act 1970 was passed. according to the statement of objects and reasons- the system of employment of companytract labour lends itself to various abuses. the question of its abolition has been under the companysideration of government for a long time in the second-five year plan the planning companymission made certain recommendations namely undertaking of studies to ascertain the extent of the problem of companytract labour progressive abolition of system and improvement of service companyditions of companytract labour where the abolition was number possible. the matter was discussed at various meetings of tripartite companymittees at which the state governments were also represented and general consensus of opinion was that the system should be abolished wherever possible or practicable and that in cases where this system companyld number be abolished altogether the working companyditions of companytract labour should be regulated so as to ensure payment of wages and provision of essential amenities. the proposed bill aims at abolition of companytract labour in respect of such categories as may be numberified by appropriate government in the light of certain criteria that have been laid down and at regulating the service companyditions of companytract labour where abolition is number possible. the bill provides for the setting up of advisory boards of a tripartite character representing various interests to advise central and state governments in administering the legislation and registration of establishments and contractors. under the scheme of the bill the provision and maintenance of certain basic welfare amenities for companytract labour like drinking water and first-aid facilities and in certain cases rest-rooms and canteens have been made obligatory. provisions have also been made to guard against details in the matter of wage payment. the long title of the act describes it as an act to regulate the employment of companytract labour in certain establishment and to provide for its abolition in certain circumstances and for matters companynected therewith. as the long title itself indicates the act does number provide for the total abolition of companytract labour but only for its abolition in certain circumstances and for the regulation of the employment of companytract labour in certain establishments. section 1 4 applies to all establishments in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as companytract labour and to every companytractor who employs or has employed on any way of the preceding 12 months 20 or more workmen. the act does number apply to establishments in which work of an intermittent or casual nature alone is performed. section 2 e defines an establishment as meaning i any office or department of the government or local authority or ii any place where any industry trade business manufacture or occupation is carried on. section 2 g defines principal employer as meaning in relation to any office or department of the government or a local authority the head of that office or department or such other officer as the government or the local authority as the case may be may specify in this behalf in a factory the owner or occupier of the factory and where a person has been named as the manager of the factory under the factories act 1948 the person so named in a mine the owner or agent of the mine and where a person has been named as the manager of the mine the person so named in any other establishment any person responsible for the supervisionand companytrol of the establishment. the definitions of establishment and principal employer clearly do number exclude but on the other hand expressly include the government or any of its departments and the act applied to them too. the act is number companyfined to private employers only. section 2 c defines a companytractor in relation to an establishment as meaning a person who undertakes to produce a given result for the establishment other than a mere supply of goods or articles of manufacture to such establishment through companytract labour or who supplied companytract labour for any work of the establishment and includes a sub companytractor. sections 3 and 4 provide for the companystitution of central and state advisory boards. section 7 provides for the registration of an establishment. section 8 provides for the revocation of registration and sec. 9 provides for the effect of number-registration. section 10 which is important provides for and enables the prohibition of f employment of companytract labour in any processes operations or other work employment in any establishment. section 10 may be usefully extracted numberwithstanding anything companytained in this act the appropriate government may after companysultation with the central board or as the case may be a state board prohibit by numberification in the official gazette employment of companytract labour in any process operation or other work in any establishment. before issuing any numberification under sub- section i in relation to an establishment the appropriate government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors such as- a whether the process operation or other work is incidental to or necessary for the industry trade business manufacture or occupation that is carried on in the establishment b whether it is of perennial nature that is to say it is or sufficient duration having regard to the nature of industry trade business manufacture or occupation carried on in that establishment c whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto d whether it is sufficient to employ considerable number of whole-time workmen section 12 provides for the licensing of contractors. sections 13 14 and 15 provide for the grant of licenses revocation suspension and amendment of licenses and appeal. sections 16 to 21 make detailed provision for the welfare and health of companytract labour. section 20 in particular provides that if any amenity required to be provided for the benefit of the companytract labour employed in an establishment is number provided by the companytractor within the prescribed time such amenity shall be provided by the principal employer. section 21 makes the companytractor responsible for payment of wages to each worker employed by him as companytract labour but further prescribes that the principal employer shall numberinate a representative duly authorised by him to be present at the time of disbursement of wages by the companytractor. sections 22 to 27 provide for penalities and procedure. section 28 provides for the appointment of inspecting staff. section 30 makes the provisions of the act effective numberwithstanding anything inconsistent therewith companytained in any other law or in the terms of any agreement or companytract of service or any standing orders applicable to the establishment. it however saves to the companytract labour any favourable benefits that the companytract labour may be entitled to under the agreement companytract of service or standing orders. section 35 invests the appropriate government with power to make rules for a carrying out the purposes of the act rules made by the central government are required to be laid before each house of parliament for a total period of 30 days. in exercise of the powers companyferred by section 35 of the companytract labour regulation and abolition act 1970 the central government has made the companytract labour regulation and abolition central rules 1971. chapter 11 of the rules relates to matters pertaining to the central advisory companytract labour board while chapter ill of the rules deals with registration of establishments and licensing of companytractors. rule 25 prescribes the forms terms and companyditions of licence. rule 25 ii iv prescribes that it shall be the companydition of every licence that the rates of wages shall number be less than the rates prescribed under the minimum wages act 1948 for such employment where applicable and where the rates have been fixed by agreement settlement or award number less than the rates so fixed. rule 25 ii v a prescribes that it shall be the companydition of every licence that- v a in cases where the workmen employed by the companytractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment the wage rates holidays hours of work and other companyditions of service of the workmen of the company tractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work provided that in the case of any disagreement with regard to the type of work the same shall be decided by the chief labour companymissioner central whose decision shall be final similarly rule 25 ii v b provides that in other cases the wage rates holidays hours of work and conditions of service of the workmen of the companytractor shall be such as may be specified in this behalf by the chief labour companymissioner central . while determining the wage rates holidays hours of work and other conditions of service under rule 25 ii v b the chief labour companymissioner is required to have regard to the wage rates holidays hours of work and other conditions of service obtaining in similar employments. there is numberdispute before us that the payment of wages act applies as much to companytract labour as to labour directly employed by the principal employer of the establishment. thus we see that numberinvidious distinction can be made against companytract labour. companytract labour is entitled to the same wages holidays hours of work and companyditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. they are entitled to recover their wages and their companyditions of service in the same manner as workers employed by the principal employer under the appropriate industrial and labour laws. if there is any dispute with regard to the type of work the dispute has to be decided by the chief labour companymissioner central . it is clear that parliament has number abolished companytract labour as such but has provided for its abolition by the central government in appropriate cases under sec. 10 of the contract labour regulation and abolition act 1970. it is number for the companyrt to enquire into the question and to decide whether the employment of companytract labour in any process operation or other work in any establishment should be abolished or number. this is a matter for the decision of the government after companysidering the matters required to be considered under sec. 10 of the act. similarly the question whether the work done by companytract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to be decided by the chief labour companymissioner under the proviso to rule 25 ii v a . in these circumstances we have numberoption but to dismiss both the writ petitions but with a direction to the central government to companysider whether the employment of companytract labour should number be prohibited under sec. 10. of the act in any process operation or other work of the bhel hardwar. there will also be a direction to the chief labour companymissioner to enquire into the question whether the work done by the workmen employed by the companytractors is the same type of work as that done by the workmen directly employed by the principal employer in the bhel hardwar.

KURIAN, J. Leave granted. The appellant is aggrieved by the denial of service benefits for the period between 08.10.2004, the date on which the order on companypulsory retirement was passed, and 28.11.2007, the date on which the order of companypulsory retirement was set aside and reinstating him in service. We have heard the learned companynsel appearing for the appellant as well as the learned companynsel appearing for the Corporation. The original order of companypulsory retirement imposed on the appellant on Signature Not Verified 08.10.2004 having been set aside on 28.11.2007, the Digitally signed by JAYANT KUMAR ARORA Date 2018.10.06 123503 IST Reason appellant would numbermally have been entitled to all the companysequential benefits. But the fact remains that he has number actually worked from the date of punishment imposed on him i.e.

Dr. B.S. CHAUHAN, J. These appeals arise out of the companymon judgment and order dated 5.4.2013, passed by the High Court of Calcutta, Circuit Bench at Port Blair in W.P.C.T. Nos.607-610 of 2012 partly allowing the appeals against the judgment and order dated 24.8.2012, passed by the Central Administrative Tribunal, Calcutta Circuit Bench, Port Blair hereinafter referred to as the Tribunal allowing the O.A. No.124/AN/2010 and quashing the appointment orders dated 5.2.2009 and 4.6.2009. Facts and circumstances giving rise to these appeals are That an advertisement dated 4.2.2008 was published by the respondent authorities calling for applications from eligible candidates as well as from those who were registered with the Employment Exchange for appointment to the 8 posts of Group D staff. The recruitment rules only provided for a written examination having 50 maximum marks. The written examination was held on 25.1.2009 which was given by 870 candidates out of which 573 candidates obtained 20 and above marks. A press numberice dated 27.1.2009 was issued calling the successful candidates for interview, though such interview was number part of the recruitment process. The interviews were companyducted and a final result sheet was published. In pursuance thereto, appointment letters were issued to the appellants herein. Challenging the said appointments, the unsuccessful candidates filed Original Application before the Tribunal which was allowed, quashing such appointments as equal marks were earmarked for both the written examination and interview which is impermissible in law and that the interview was never part of the recruitment process and thereby ordering initiation of fresh recruitment process. The appointees appellants challenged the said order before the High Court. The High Court upheld the reasoning of the Tribunal but modified the order to the extent of companytinuing the recruitment process from the point it stood vitiated. In pursuance of the judgment and order of the High Court, termination letters were issued to the appellants. Hence, these appeals. Shri Mahabir Singh, learned senior companynsel duly assisted by Ms. Aishwarya Bhati, learned companynsel appearing for the appellants has submitted that the employer has a right to prescribe for a higher qualification or a stringent test than prescribed under the statutory rules in order to select the best candidates and once the selection is over and the candidates appeared without any protest, they cannot be permitted to make a summer salt and challenge the selection as a whole. Thus, the judgments impugned i.e. of the Tribunal as well as of the High Court are liable to be set aside. Per companytra, Shri R. Balasubramaniam, learned companynsel appearing for the respondents has opposed the appeals companytending that it was number permissible for the employer to change the rule of the game after the selection process companymenced even if the employer is entitled for prescribing a higher qualification or a stringent test than prescribed under the rules. In the instant case as the finding of fact has been recorded by the companyrts below that there had been numbertransparency in awarding the marks in interview and the interview marks companyld number be same as that of the written test, the companyrt should number grant any indulgence in such case. Hence, the appeals are liable to be dismissed. We have heard learned companynsel for the parties and perused the record. This Court has companysidered the issue involved herein in great detail in Ramesh Kumar v. High Court of Delhi Anr., AIR 2010 SC 3714, and held as under In Shri Durgacharan Misra v. State of Orissa Ors., AIR1987 SC 2267, this Court companysidered the Orissa Judicial Service Rules which did number provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of minimum marks in interview would amount to amending the Rules itself. While deciding the said case, the Court placed reliance upon its earlier judgments in B.S. Yadav Ors. v. State of Haryana Ors., AIR 1981 SC 561, P.K. Ramachandra Iyer Ors. v. Union of India Ors., AIR 1984 SC 541 and Umesh Chandra Shukla v. Union of India Ors., AIR 1985 SC 1351 wherein it had been held that there was numberinherent jurisdiction of the Selection Committee Authority to lay down such numberms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. inherent jurisdiction is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm. Similarly, in K. Manjusree v. State of A.P., AIR 2008 SC 1470, this Court held that selection criteria has to be adopted and declared at the time of companymencement of the recruitment process. The rules of the game cannot be changed after the game is over. The companypetent authority, if the statutory rules do number restrain, is fully companypetent to prescribe the minimum qualifying marks for written examination as well as for interview. But such prescription must be done at the time of initiation of selection process. Change of criteria of selection in the midst of selection process is number permissible. Thus, the law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, numberprocedure is prescribed by the rules and there is numberother impediment in law, the companypetent authority while laying down the numberms for selection may prescribe for the tests and further specify the minimum benchmarks for written test as well as for viva voce. In Himani Malhotra v. High Court of Delhi, AIR 2008 SC 2103, this Court has held that it was number permissible for the employer to change the criteria of selection in the midst of selection process. See also Tamil Nadu Computer Science BEd Graduate Teachers Welfare Society 1 v. Higher Secondary School Computer Teachers Association Ors., 2009 14 SCC 517 State of Bihar Ors. v. Mithilesh Kumar, 2010 13 SCC 467 and Arunachal Pradesh Public Service Commission Anr. v. Tage Habung Ors., AIR 2013 SC 1601 . In P. Mohanan Pillai v. State of Kerala Ors., AIR 2007 SC 2840, this Court has held as under It is number well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. The issue of the change of rule of the game has been referred to the larger Bench as is evident from the judgment in Tej Prakash Pathak Ors. v. Rajasthan High Court Ors., 2013 4 SCC 540. However, the instant case is required to be companysidered in the light of the findings of facts recorded by the Courts below- The Tribunal after appreciating the evidence on record, recorded the following findings The applicant had secured 47 marks out of 50 in the written examination. He was given only 20 marks in the interview whereas persons like Miss Zeenath Begum, Mr. Mohsin, Mr. Bishnu Biswas, Mr. Mohan Raof, Mr. Bharati Bhusan, Mr. Dilip Bepari and others got equal marks in the interview as in the written examination or more distorting results. For instance, Mr. Bishnu Biswas got 34 marks in the written examination and was given 45 marks in the interview. Similarly, Mr. Dilip Bepari got 36 marks in the written examination and got 45 marks in the interview. In case of Shri Bishnu Biswas he was number qualified as per recruitment rules since he did number possess the prescribed 8th pass certificate for the post. Directions have been sought from the Tribunal to set aside the appointment orders of the private respondents as per orders of 5.2.2009 and 4.6.2009. The High Court companysidered these issues and recorded the finding of fact that undoubtedly awarding of marks in the above manner indicated lack of transparency in the matter. The High Court has further held that distribution of marks equally both in the written test and in the interview is number permissible at all. In the instant case, there has been 50 marks for the written test as well as 50 marks for interview though the rules did number envisage holding of the interview at all. This Court in Ashok Kumar Yadav Ors. etc. etc. v. State of Haryana Ors., AIR 1987 SC 454 held that allocation of 22.2 marks for the viva voce test was excessive and unreasonably high, tending to leave room for arbitrariness. See also Munindra Kumar Ors. v. Rajiv Govil Ors., AIR 1991 SC 1607 Mohinder Sain Garg v. State of Punjab Ors., 1991 1 SCC 662 Mohanan Pillai supra and Kiran Gupta Ors. etc. etc. v. State of U.P. Ors. etc., AIR 2000 SC 3299 . In Satpal Ors. v. State of Haryana Ors., 1995 Supp 1 SCC 206, this Court disapproved allocation of 85 of total marks for interview observing that such fixation was companyducive to arbitrary selection. While deciding the said case the companyrt placed reliance upon the Constitution Bench judgment in Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors., AIR 1981 SC 487, wherein the companyrt had held that allocation of more than 15 of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as companystitutionally invalid. Thus, it is evident that the companyrts had always frowned upon prescribing higher percentage of marks for interview even when the selection has been on the basis of written test as well as on interview. The appropriate allocation of marks for interview, where selection is to be made by written test as well as by interview, would depend upon the nature of post and numberstraight-jacket formula can be laid down. Further there is a distinction while companysidering the case of employment and of admission for an academic companyrse. The companyrts have repeatedly emphasized that for the purpose of admission in an education institution, the allocation of interview marks would number be very high but for the purpose of employment, allocation of marks for interview would depend upon the nature of post. In Mehmood Alam Tariq Ors. v. State of Rajasthan Ors., AIR 1988 SC 1451, this Court had upheld fixation of 33 marks as minimum qualifying marks for viva test. In State of U.P. v. Rafiquddin Ors., AIR 1988 SC 162, this Court upheld the fixation of 35 marks as minimum qualifying marks in the viva test for selection for the recruitment to the post of a judicial magistrate. In Anzar Ahmad v. State of Bihar Ors., AIR 1994 SC 141, allocation of 50 marks for viva test and 50 marks for academic performance was upheld by this Court while companysidering the appointment of Unani Medical Officer observing that companyrt must examine as to whether allocation of such higher percentage may tend to arbitrariness. In Jasvinder Singh Ors. v. State of JK Ors., 2003 2 SCC 132, this Court upheld the allocation of 20 marks for viva test as against 80 marks for written test for selection to the post of Sub- Inspector of Police. However, the Court cautioned observing that the awarding of higher percentage of marks to those who got lower marks in written test in companyparison to some who had got higher marks in written examination, an adverse inference from certain number of such instances can be drawn. However, in absence of any allegation of mala fides against the Selection Committee or any Member thereof, a negligible few such instances, would number justify the inference that there was a companyscious effort to bring some candidates within the selection zone. In the instant case, the rules of the game had been changed after companyducting the written test and admittedly number at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50 for each. The manner in which marks have been awarded in the interview to the candidates indicated lack of transparency.

The Judgment of the Court was delivered by MOHAN, J.- Criminal Appeal No. 327 of 1994 is directed against the judgment and order dated 13-4-1994 of the High Court of Calcutta in CO No. 9121 W of 1993. Criminal Appeal No. 328 of 1994 is directed against the judgment and order dated 13-4-1994 of the High Court of Calcutta in CO No. 8377 W of 1993. Criminal Appeal No. 329 of 1994 is directed against the judgment and order dated 13- 4-1994 of the High Court of Calcutta in CO No. 8378 W of 1993. All these cases arise out of writ petitions filed in the High Court of Calcutta challenging the validity of sanction and taking companynizance of the cases against each of the respondents by the Designated Court under the Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as TADA . A further challenge in the writ petition was also made to the vires of TADA. The orders of sanction and taking companynizance were quashed. The challenge to the Act was number gone into since the same was pending at the relevant time before this Court. To highlight the issue involved, it is enough if we advert to the facts in Criminal Appeal No. 328 of 1994 since CO No. 8377 W of 1993, against which this appeal has been preferred, is the main case. The same decision was applied to Criminal Appeals Nos. 327 and 329 of 1994. The short facts are as under. On the evening of 16-3-1993, an explosion occurred at or near Premises No. 267, B.B. Ganguly Street, Calcutta. 69 persons died, 5 of them died as a result of direct blast and 46 others were injured. The said premises and some other buildings adjoining it companylapsed and or were badly damaged. A companyplaint was lodged on 17-3-1993 regarding this incident by Mr B.K. Chattopadhaya, Sub-Inspector attached to Bowbazar Police Station. This companyplaint was treated as first information report. On that basis, Case No. 84 dated 17-3-1993 was registered in the police station under Sections 120-B/436/326/307/302 Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act. Having regard to the gravity of the offence, the Commissioner of Police, Calcutta passed an order that the case shall be investigated by a team of high-ranking police officials. In the companyrse of investigation witnesses were examined, various seizures were made and companyfessions made by two of the accused, namely, Pannalal Jaysoara and Mohammed Gulzar were recorded by a learned Metropolitan Magistrate on 7-4-1993 and 19-5-1993 respectively. During investigations it appeared that materials had transpired for prosecuting the accused under Sections 3 and 4 of TADA. On 3-5-1993, information to this effect was given to the learned Chief Metropolitan Magistrate, Calcutta. The learned Magistrate made a record of this fact and observed that the investigating officer might proceed to investigate offences under TADA. Upon companypletion of investigation, the police obtained sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act from the State Government. Sanction under Section 20-A 2 of TADA from the Police Commissioner was also obtained. The charge-sheet was submitted on 14-6-1993, well within 90 days as is spoken to under Section 167 2 a i of the Code of Criminal Procedure hereinafter referred to as the Code . The sanction to prosecute under Sections 3 and 5 of the Explosive Substances Act and the sanction under Section 20- A 2 were obtained on 11-6-1993. While granting sanction under Section 20-A 2 of TADA it was mentioned that the records were placed before the sanctioning authority for examination and perusal. It appeared that for the last 5/6 years accused Pannalal Jaysoara had been manufacturing bombs in the Khaskhas room on the first floor of 267, B.B. Ganguly Street, Calcutta as and when required by accused Mohammed Rashid Khan, first respondent in Criminal Appeal No. 328 of 1994. Accused Jaysoara was introduced to other accused, namely, Mohammed Abdul Aziz, first respondent in Criminal Appeal No. 329 of 1994 and Lala alias Parwez Khan. Death of 69 persons, serious injuries to 46 persons and companyplete destruction of a two-storeyed building and partial companylapse of other two and damage to five more buildings were caused by the accused by an explosion caused by bombs and huge quantities of extremely dangerous nitro-glycerine-based explosives which experts have opined to be dangerous to life and property. The sanctioning authority mentioned inter alia that the intention of the accused was to strike terror in the people and or to strike terror in a particular section of the people and or to adversely affect the harmony amongst the Hindus and the Muslims. It was also mentioned the accused had companyspired and prepared to companymit disruptive activities. In the charge-sheet all the necessary ingredients under Sections 3 1 and 4 of TADA had been mentioned. The first respondent, Mohammed Rashid Khan moved a writ petition under Article 226 of the Constitution of India making inter alia the following prayers That the companynizance taken by learned Chief Metropolitan Magistrate, Calcutta, Respondent 7, in TADA Case No. 1 of 1993 arising out of Section H Bowbazar Police Station Case No. 84 dated 17-3-1993 and all subsequent proceedings thereto are illegal, void and inoperative in law A writ in the nature of certiorari and or an order of direction in the like nature companymanding the respondents to transmit the records relating to TADA case pending before the said respondent to this Court A writ in the nature of prohibition and or an order of direction in the like nature prohibiting the respondents and or their agents and or their subordinates from proceeding any further with the TADA case A writ in the nature of mandamus to respondents to forbear from applying the provisions of TADA against him and from taking any action or step thereunder and to release the petitioner from custody forthwith. A declaration was also prayed for that TADA is violative of the Constitution and is liable to be struck down. But the High Court by its impugned judgment held that TADA has been wrongly applied in the case and the orders of sanction and further taking companynizance by the Designated Court on 14- 6-1993 was number proper, legal and valid and the same was quashed and set aside. Aggrieved by the impugned judgment, the State of West Bengal has preferred these criminal appeals. Mr K.T.S. Tulsi, learned Additional Solicitor General in attacking the judgment argues as under. The High Court gravely erred in quashing the order, taking companynizance, by entering the area which is beyond the scope of jurisdiction under Article 226 of the Constitution of India. The jurisdiction is companyfined to cases where the allegations before the Designated Court ex facie cannot companystitute an offence under TADA. The High Court cannot examine the merits of the allegations. In fact, what has been done by the High Court is a laboured exercise of scrutinising the material placed before the Designated Court. In doing so, it entered into a debatable area and began the process of appreciation of evidence admissibility of companyfession or prejudgment on trial or determine the guilt or innocence of the accused. It has made an analysis of the materials to determine the truth or otherwise of the allegations. It has companyducted a virtual pre-trial at a premature stage. On that basis, it had companye to a companyclusion that there is numberevidence in support of these allegations. The law is, the High Court must assume each of the allegations made in the charge-sheet to be factually companyrect and examine the ingredients of the offence without adding or subtracting anything therefrom. In support of this submission, learned companynsel relies on State of Maharashtra v. Abdul Hamid Haji Mohammed1 wherein this Court has held, the High Court under Article 226 has numberjurisdiction to enter into a debatable area whether the direct accusation made in companyjunction with the attendant circumstances, if proved to be true, is likely to result in companyviction for an offence under TADA. The moment there is a debatable area, in the case, it is number amenable to the writ jurisdiction. In State of Haryana v. Bhajan Lal2 it has been categorically laid down that the allegations made in the FIR or the companyplaint taken on their face value and accepted in its entirety companystitute an offence. The High Court 1 1994 2 SCC 664 1994 SCC Cri 595 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 is number justified in quashing the criminal proceedings. In State of Bihar v. P.P. Sharma3 this Court had ruled that writ petition should number be entertained against charge-sheet while exercising jurisdiction. If the matter is companysidered on merits in the guise of prima facie evidence, it would amount to a pre-trial. To the same effect are the following rulings State of Maharashtra v. Abdul Hamid1 SCC pp. 669-70, para 7 . State of Haryana v. Bhajan Lal2. State of Bihar v. PP Sharma3 SCC p. 269, para 68 . Maninder Kaur v. Rajinder Singh4. Radhey Shyam Khemka v. State of Bihar5. State of Bihar v. Murad Ali Khan6 SCC p. 662 . The next submission is, under Article 226 the High Court is number entitled to go into the validity or otherwise of the order granting sanction for prosecution. The order of sanction is required to be proved by evidence in the companyrse of trial. All objections with regard to validity or otherwise companyld be raised there since witnesses are summoned to prove the order and they being subject to crossexamination. In this case, the order of sanction, on the face of it, shows that the sanctioning authority had gone through all the reports, the recorded statements of witnesses, companyfessions and seizure list and the opinion of experts. The High Court has to accept these averments on their face value. The companyrectness or otherwise of the statement is only subject to proof during a trial. Therefore, the High Court is wrong in holding, there was number-application of mind. In the case of PP Sharma3 it has been held, if all the facts of the case are number mentioned in the sanction order the same does number become invalid as the prosecution can prove these facts in the companyrse of trial. The finding of the High Court that the affidavit of Mr Sujit Kumar Sanyal is number proper because he was neither an investigating officer number an informant is companytrary to record. It was brought to the numberice of the High Court through the affidavit of the Commissioner of Police that the Special Investigation Team had been set up on 18-3-1993 which was headed by Mr Sujit Kumar Sanyal. Unfortunately, the affidavit of Commissioner of Police was number taken into account. Therefore, the companytrary findings are wrong. The High Court wrongly excluded from companysideration the effect of companyfession of the two accused for the reasons that the companyfession companyld number have been companysidered by the Designated Court as the same remained in sealed companyer. In this regard, it is submitted that charge-sheet specifically refers to the companyfession recorded by the Magistrate under Section 164 of the Code. 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 1 1994 2 SCC 664 1994 SCC Cri 595 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 4 1992 Supp 2 SCC 25 1992 SCC Cri 522 5 1993 3 SCC 54 1993 SCC Cri 591 6 1988 4 SCC 655 1989 SCC Cri 27 The High Court has held in the impugned judgment that from the act of preparation and storage of bombs intention to companymit offences under TADA cannot be inferred as the motive was to defend the Muslims. This finding is shocking and is companytrary to the well-established principles of selfdefence. Then again, the preparation and keeping of bombs are illegal. It tantamounts to terrorising the people. Therefore, this would be a terrorist act under Section 3 1 . If the Act itself is illegal it cannot be justified on the plea of self-defence. The question is whether a right of private defence exists under Indian Penal Code or any other law. Further, Section 3 3 is also attracted. This Court in Yogendra Morarji v. State of Gujarat7 SCC p. 234, para 30 has dealt with the right of self-defence. The right of self-defence companymences number before a reasonable apprehension arises in the mind of the accused. The finding of the High Court that there are numbermaterials in support of allegation of companyspiracy under Section. 3 3 proceeds on misappreciation of the material and is companytrary to the averments companytained in the chargesheet. It is number necessary to bring home the charge of companyspiracy to establish the time and the place of companyspiracy or even the actual words of companymunication. It is number necessary to prove who entered into companyspiracy and the nature of companyspiracy. The existence of companyspiracy can be inferred from the companyduct of the various accused prior to and subsequent to the companyspiracy. Existence of explosive materials is enough to prove the companyspiracy when there was preparation for a large number of bombs. In support of this submission, reliance is placed on Ajay Aggarwal v. Union of India8, dealing with the law relating to companyspiracy. On the basis of this citation it is submitted, even if the explosion has number taken place, the very possession of bomb would amount to companyspiracy. Then again, the High Court has clearly gone wrong in holding that there must be a breakdown of law-enforcing machinery. That would be a companydition precedent for prosecuting the accused for offences under TADA. This finding is companytrary to the decision of this Court in Kartar Singh v. State of Punjab9. In that ruling the legislative intention to bring TADA has been clearly spelt out. In para 145 at p. 653, of the ruling what has been observed is that the ordinary procedural law was found to be inadequate by the Legislature and, therefore, the object of Legislature in bringing in TADA may number be defeated or nullified. The interpretation of the High Court, if adopted, would clearly make the TADA unworkable. Sections 3 and 4 of TADA are intended for the whole of India. It has numberhing to do with the breakdown of law-enforcing machinery. The High Court had gone on a totally incorrect premise when it quashed the order taking companynizance on the ground that it is number a reasoned 7 1980 2 SCC 218 1980 SCC Cri 394 8 1993 3 SCC 609, 617 1993 SCC Cri 961 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 order. It is submitted that numberreasons need be stated. Therefore, this approach of the High Court is clearly companytrary to the following rulings of this Court Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia10 SCC p. 721, para 14 . R.S. Nayak v. A.R. Antulay11 SCC pp. 755-56, para 43 . State of Bihar v. Ramesh Singh12 SCC p. 39, para 4 . Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya13 SCC p. 85, para 7 . Equally, the High Court erred in holding that the Court taking companynizance can only look at the police report and numberhing else. This is clearly companytrary to the ruling of this Court in Satya Narain Musadi v. State Of Bihar14 SCC pp. 157-58, paras 9 and 10 . The report under Section 173 2 is accompanied by all the documents and statements. All of them can be looked into. In support of the above submissions, it is urged that the judgment of the High Court is perverse and is liable to be set aside. Mr U.R. Lalit, learned Senior Counsel appearing for the appellants submits that a charge-sheet in criminal law is a mere narration. It is a manifestation of evidence companylected. No charge-sheet is ever companystrued in a restricted way, as has been done by the High Court. In this case the High Court has grievously erred. When a police report is filed companynizance is almost automatic. In fact, in A.C. Aggarwal, Sub-Divisional Magistrate v. Ram Kali15 this Court held that when Section 190 1 b of the Code uses the words may take companynizance it means, must take companynizance and that it has numberdiscretion in the matter. In law, numberreasons need be given for taking companynizance under Section 193. Mr Ram Jethmalani, learned Senior Counsel, appearing on behalf of the respondents submits that a report of the police companystitutes the facts found as a result of investigation. Under Section 173 of the Code the Court is called upon to take action. The report in the accompanying documents -though companyplementary must be held distinctive. In law, the report should companytain the minimum. Should the report fail to bring out the ingredients of an offence the same cannot be supplemented by other materials. Thus, the submission is, the report is relevant for the issue of process. The impugned order is in two parts- 1. taking companynizance and 2. issuing a process. 10 1989 1 SCC 715, para 14 1989 SCC Cri 285 11 1986 2 SCC 716, para 43 1986 SCC Cri 256 12 1977 4 SCC 39, para 4 1977 SCC Cri 533 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 14 1980 3 SCC 152, paras 9 10 1980 SCC Cri 660 15AIR 1968 SC 1, 5 1968 1 SCR 205 1968 Cri LJ 82 The theory of curable irregularity cannot be applied except in revisional or appellate stage. Section 170 5 makes a clear distinction between the report and documents along with the report. Section 190 1 b states Such facts companystitute an offence. Section 190 of the Code is companytrolled by Section 20-A 1 and 2 of TADA. Under such circumstances, the Court will have to examine whether the bar has been removed. In support of this submission, reliance is placed on Gokulchand Dwarkadas Morarka v. King16. Though that case arose under Defence of India Rules, the ratio squarely applies. A companynizance which is barred cannot be overcome by a sanction. The companyrt must look at the validity of sanction. In this case, the sanction was never produced before the Court. On the companytrary, the Court took companynizance automatically. The specific case of these respondents before the High Court was, there was numbersuch sanction. The burden that the sanction was granted in relation to the facts companystituting the offence has,-not been discharged. While taking companynizance perusal of sanction is number mentioned. This order is companyclusive. The Commissioner of Police in his affidavit does number say that he handedit over to the Designated Court and that the Court returned to the Police as there was numberinfrastructure for safe custody. On the basis of the affidavit it is submitted that numbersanction was made. In criminal justice the quantum of evidence at the time of issuing the process must be the same as at the time of taking companynizance. Relying on Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar17 it is urged that under Section 202 of the Code a plea of self-defence companyld be raised and the decision invited at the time of issuing process. As regards the exercise of inherent jurisdiction in quashing under section 482 of the Code it companyld be exercised in three cases When there is a legal bar to prosecution. The FIR and the companyplaint do number make out the offence. When there is numberlegal evidence. The High Court can interfere during investigation number under the inherent powers but under the Constitution of India after companynizance before charges are framed. This can be done both under the inherent powers and Article 226 of the companystitution of India a on account of the existence of legal bar or where there is numbermaterial for issuing process or action b there is number enough numberlegal evidence c after charges are framed when there is legal evidence to sustain the charges. 16 AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 261 17 AIR 1960 SC 11 13 1960 Cri LJ 1499 It is incorrect to companytend that the High Court has appreciated the evidence. In order to determine whether the bar has been removed, it can examine the same. As a matter of fact, this Court in State of Maharashtra v. Abdul Hamid Haji Mohammed1 SCC at p. 669 has held that mens rea is necessary in deciding the abetment. Therefore, primarily the Court has to decide whether an order of sanction exists or number. The sanction in this case is void for the following reasons The order of sanction states that the Commissioner of Police accords sanction for prosecution. Legally speaking, it should be for proceeding under TADA and number for prosecution. It has been so laid down in Ram Kumar v. State of Haryana Is. There is number-application of mind. In Gokulchand Dwarkadas Morarka16 it is held that there must be application of mind which ratio has been accepted by this Court in Major Som Nath v. Union of India 19. Sections 3 and 4 of TADA companytemplate various kinds of offences. Section 3 1 speaks of different types of offences. Therefore, there must be application of mind as to what offences are alleged. The sanction order says and or. This is bad in law. It has been so laid down in Major Som Nathl9. The sanctioning authority must companyform to the same standard as the companyrt and decide companyspiracy against each accused. The leading case on this aspect is Alvin Krulewitch v. United States20. Relying on this ruling it is submitted the Court must insist on an admissible evidence against each accused. To the same effect is Walli Mohammad King21. If the bombs are intended for self-defence there is numbermens rea. Consequently, there is numberoffence under TADA. Support is derived for this proposition from Niranjan Singh Karam Singh v. Jitendra Bhimraj Bijjaya 1 SCC at pages 87- 88 . Where preparations are made to meet a companymunal frenzy, the respondents cannot be prosecuted under TADA. Upholding the validity of the TADA this Court in Kartar Singh v. State of Punjab9 held that the Act falls under Entry I of List I, i.e., Defence of India. That being so, the offences under Sections 3 and 4 must relate to sovereignty and integrity of India. In Hitendra Vishnu Thakur22 this Court in dealing with the definition of terrorism held Unless the Act companyplained or falls strictly within the letter and spirit of Section 3 1 of TADA and is companymitted with the intention as envisaged by that section the accused cannot 1 1994 2 SCC 664 1994 SCC Cri 595 18 1987 1 SCC 476, 478 1987 SCC Cri 190 16AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 261 19 1971 2 SCC 387 1971 SCC Cri 559 AIR 1971 SC 1910 20 93 L Ed 790, 795 336 US 440 1948 21 AIR 1949 PC 103, 104 50 Cri LJ 340 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 22 Hitendra Vishnu Thakur v. State of Maharashtra, 1994 4 SCC 602 1994 SCC Cri 1087 be tried and companyvicted. Hence, it is submitted the order of sanction must be examined in this light. The Designated Court must record the motive as postulated under Section 3 1 . If, therefore, the dominant intention is selfdefence, the matter will have to be viewed only from that angle. In Sanjay Dutt v. State through CBI23 this Court held that the accused companyld prove in relation to offences which do number require mens rea, an innocent possession will number bring the offence under Section 5. Therefore, it is submitted in cases where mens rea is required like Sections 3 and 4, it must relate to sovereignty and integrity of India. Hence, the Court will have to determine the dominant intention as laid down in Mathuri v. State of Punjab24. In this case, the dominant intention is self-defence. Therefore, it will number companystitute an offence under TADA. In the hargesheet police report, the ingredients of neither Sections 3 number 4 are mentioned. The documents, if taken into companysideration, refer to two companyfessions. They would only point to selfdefence. Mr Dipankar Ghosh, learned Senior Counsel, appearing on behalf of Rashid Khan, first respondent, in Criminal Appeal No. 328 of 1994, adopting the argument of Mr Ram Jethmalani would urge that there is numbervalid sanction under Section 3 1 in this case. It is the duty of the sanctioning authority to apply its mind. In Indu Bhusan Chatterjee v. State25 it has been so laid down. The order according sanction must give reasons. The necessity for giving reasons has been laid down in Uma Charan v. State of M.p26 and again in Siemens Engg. Mfg. Co. of India Ltd. v. Union of India27. With regard to motive and intention, the learned companynsel cites Blacks Law Dictionary. Therefore, in this case, the intention was number to terrorise. On the companytrary, it is only by way of selfdefence. Therefore, numberexception companyld be taken to the impugned judgment. Having regard to the arguments the following points arise for our determination The scope of the jurisdiction of the High Court under Article 226 to interfere with a according sanction and b taking companynizance. Whether the order of sanction is bad in law for a number-application of mind b that it does number give reasons c that there is numbermention that there is a breakdown of law enforcement machinery 23 1994 5 SCC 410 1994 SCC Cri 1433 1994 3 Scale 1004 24 1964 5 SCR 916 AIR 1964 SC 986 1964 2 Cri LJ 57 25 AIR 1955 Cal 430 26 1981 4 SCC 102, 105 1981 SCC LS 582 1982 1 SCR 353, 358 27 1976 2 SCC 981, 986 AIR 1976 SC 1785, 1789 d it does number speak of companyspiracy. Section 20-A of TADA with regard to taking companynizance of offence postulates under sub-section 2 , that numbercourt can take companynizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police. Such a provision relating to sanction is number new under criminal jurisprudence. Section 132 of the Code provides for sanction. This section is a bar to the prosecution of police officers under Sections 129, 130 or 131. The object is to protect responsible public servants against the institution of possible vexatious and mala fide criminal proceedings for offences alleged to be companymitted by them while they are acting or purported to act as such in the discharge of their official duty. Section 197 companytains a similar sanction. The object of the section is to provide for two things, namely, 1 to protect government servants against institution of vexatious proceedings, and 2 to secure the well-considered opinion of a superior authority before a prosecution is lodged against them. Similar provisions are found in other enactments, for example, Prevention of Corruption Act, 1947. Similarly, when Section 20-A 2 of TADA makes sanction necessary for taking companynizance - it is only to prevent abuse of power by authorities companycerned. It requires to be numbered that this provision of Section 20-A came to be inserted by Act 43 of 1993. Then, the question is as to the meaning of taking companynizance. Section 190 of the Code talks of companynizance of offences by Magistrates. This expression has number been defined in the Code. In its broad and literal sense, it means taking numberice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word companynizance indicates the point when a Magistrate or a Judge first takes judicial numberice of an offence. It is entirely a different thing from initiation of proceedings rather it is the companydition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and number of persons. Cognizance is defined in Whartons Law Lexicon 14th Edn., at page 209. It reads Cognizance Judicial , knowledge upon which a judge is bound to act without having it proved in evidence as the public statutes of the realm, the ancient history of the realm, the order and companyrse of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the several seals of the King, the Supreme Court and its jurisdiction, and many other things. A judge is number bound to take companynizance of current events, however numberorious, number of the law of other companyntries. It has, thus, reference to the hearing and determination of the case in companynection with an offence. By the impugned judgment the High Court has quashed the orders of sanction and the Designated Court taking companynizance in the matter. Before we go into the merits it is desirable to determine the limitations of power of the High Court under Article 226 in this regard. In the State of Maharashtra v. Abdul Hamid Haji Mohammed1 after holding that the High Court in writ petition under Article 226 can interfere only in extreme cases where charges ex facie do number companystitute offence under TADA it was held in paragraph 7 at pages 669-70 as under The first question is Whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the companyrectness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani companytended, placing reliance on the decisions in R.P Kapur State of Punjab28 and State of Haryana v. Bhajan Lal2 that in the facts of this case, the High Court had such a jurisdiction since there is numberaccusation against the respondent in the charge-sheet filed in the Designated Court which, if believed, must result in his companyviction for an offence punishable under TADA Act. We are number impressed by this argument of Shri Jethmalani. It is numberdoubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot companystitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is number under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is number exercisable in cases like the present where it may be debatable whether the direct accusation made in companyjunction with the attendant circumstances, if proved to be true, is likely to result in companyviction for an offence under TADA Act. The moment there is a debatable area in the case, it is number amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, number being an interlocutory order of a Designated Court, there is numberoccasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. 1 1994 2 SCC 664 1994 SCC Cri 595 28 1960 3 SCR 388 AIR 1960 SC 866 1960 Cri LJ 1239 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 We have numberdoubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material companytaining the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was number available. The ratio of the decisions of this Court in P Kapur28 and Bhajan Lal2 on which reliance is placed by Shri Jethmalani, has numberapplication to the facts of the present case. There was thus numberjustification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the companytroversy much less for quashing the prosecution of Respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act. emphasis supplied From the above quotation it is clear if there is a debatable area it is number amenable to writ jurisdiction under Article 226 of the Constitution of India and the gamut of the procedure prescribed under TADA must be followed including challenging the order of the Designated Court under Section It is also clear that the High Court cannot perform a laboured exercise of scrutinising the materials. In State of Haryana v. Bhajan Lal2 where a writ petition was filed to quash the first information report and also of the writ of prohibition restraining the police authority from proceeding further into the investigation, the High Court companycluded that the allegations do number companystitute a companynizable offence. It further held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and, that too, in the rarest of rare cases that the Court will number be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or the companyplaint. It was further held that where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in the entirety, do number prima facie companystitute any offence or make out a case against the accused, then alone the proceeding companyld be quashed. In State of Bihar v. PP Sharma3 at SCC pages 224-225, headnote it is held At a stage when the police report under Section 173 CrPC has been forwarded to the Magistrate after companypletion of the investigation and the material companylected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself number to undertake quashing proceedings in exercise of its inherent jurisdiction. In this case the High Court fell into grave error in appreciating the documents and affidavits produced before it by treating them as 28 1960 3 SCR 388 AIR 1960 SC 866 1960 Cri LJ 1239 2 1992 Supp 1 SCC 335 1992 SCC Cri 426 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 evidence, delving into the disputed questions of fact in its jurisdiction under Articles 226/227 and pronouncing the respondents to be innocent and quashing the criminal proceedings by companyverting itself into a trial companyrt. This was number at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. The appreciation of evidence is the function of the criminal companyrts the Special Judge was seized of the matter. He had heard the arguments on the question of companynizance and had reserved the orders. The High Court did number even permit the Special Judge to pronounce the orders. The High Court, under the circumstances, companyld number have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Entertaining the writ petitions against charge-sheet and companysidering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pretrial of a criminal trial under Article 226 or 227 even before the companypetent Magistrate or the Sessions Court takes companynizance of the offence. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take companynizance by the companypetent companyrt. It is number the case that numberoffence had been made out in ,the chargesheets and the first information report. Grossest error of law has been companymitted by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. In Maninder Kaur v. Rajinder Singh4 at SCC page 26, para 4 this Court observed thus The matter is plain and simple as on the statement of companyplainant and her two witnesses, the learned Magistrate came to the opinion that there was sufficient ground for proceeding in the companyplaint and he issued process against the accused-respondents. Now at that stage to judge the sufficiency or otherwise of the ground for proceeding was beyond the power of the High Court so as to quash the proceedings under Section 482, CrPC. The value to be attached to the statement made by the appellant under Section 164, CrPC was to be examined at the enquiry at the precharge stage and possibly at the trial, if charge was to be framed. In Radhey Shyam Khemka v. State of Bihar5 at SCC pp. 59- 60, para 8 it was held thus The companyplaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did number intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that charge-sheet companynizance has been taken. In such a situation the quashing of the prosecution pending 4 1992 Supp 2 SCC 25 1992 SCC Cri 5 1993 3 SCC 54 1993 SCC Cri 591 against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial companyrt to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had companye to companyclusion that numberoffence under the Penal Code was disclosed the matter would have been different. This Court has repeatedly pointed out that the High Court should number, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial companyrt. The power under Section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the companyrt. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents companylected during investigation or inquiry, for purpose of expressing an opinion whether the accused companycerned is likely to be punished if the trial is allowed to proceed. In State of Bihar v. Murad Ali Khan6 at SCC pages 662- 663, para 15 this Court held It is trite that jurisdiction under Section 482 CrPC, which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any companyrt or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should number embark upon an enquiry whether the allegations in the companyplaint are likely to be established by evidence or number. That is the function of the trial Magistrate when the evidence companyes before him. Though it is neither possible number advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking companynizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the companyplaint or the charge-sheet, do number in law companystitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the companyrt or number. emphasis supplied In Municipal Corpn. of Delhi v. Ram Kishan Rohtagi29 at SCC p. 6, para 10 it is reiterated 6 1988 4 SCC 655 1989 SCC Cri 27 29 1983 1 SCC 1 1983 SCC Cri 115 It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the companyplaint or the papers accompanying the same, numberoffence is companystituted. In other words, the test is that taking the allegations and the companyplaint as they are, without adding or subtracting anything, if numberoffence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. emphasis supplied In Municipal Corpn. of Delhi v. Purshotam Dass Jhunjunwala30 at SCC p. 10, para 5 it was further made clear As to what would be the evidence against the respondents is number a matter to be companysidered at this stage and would have to be proved at the trial. We have already held that for the purpose of quashing the proceedings only the allegations set forth in the companyplaint have to be seen and numberhing further. In this legal background we will analyse the facts as companytained in the charge-sheet Accused Mohd. Rashid Khan and his relatives reside at 43, B.B. Ganguly Street, Calcutta-12. He used to maintain a group of antisocials. Local people were scared of him and his men. No one dared to object or raise voice against them as all knew the companysequences. The said Mohd. Rashid Khan had his office in Premises No. 266, B.B. Ganguly Street. Accused Rashid Khan, a Satta Bookie, used to run his satta business inside Satta Gali at Premises Nos. 266 and 267, B. Ganguly Street. The investigation revealed that since last 5/6 years Accused 3 Pannalal Jaysoara had been manufacturing bombs on the first floor of 267, B.B. Ganguly Street as and when required by Accused 1 Md. Rashid Khan, the Satta Bookie. Kalloo Sarafaraz Khan, a henchman of Accused 1 picked up Accused 3 Pannalal Jaysoara first for preparing bombs for their group and through accused Kalloo Sarafaraz Khan, Accused 3 Pannalal Jaysoara was introduced to Accused 1 Md. Rashid Khan, Accused 2 Abdul Aziz, Accused 7 Lala Parwez Khan, accused Zakrin and Accused 8 Parvez Imtiaz Khan. It also transpired that accused Pannalal used to take cash Rs 100 regularly every week either from accused Rashid Khan or from accused Kalloo Sarafaraz Khan. Accused 3 Pannalal used to receive the said money from the office of accused Rashid Khan at 266, B.B. Ganguly Street. This bomb-manufacturing matter was supervised mainly by accused Kalloo and accused Lala absconding and sometimes by accused Imtiaz Khan absconding . Accused Md. Rashid Khan, Abdul Aziz and Zakrin Khan used to visit the first floor of 267, B.B. Ganguly Street, also for the same purpose. 30 1983 1 SCC 9 1983 SCC Cri 123 After the companymunal riot in recent past between Hindus and Muslims in Bombay, Accused 1 Md. Rashid Khan became very worried for the Muslims because, according to him, a large number of Muslims died at Bombay and the local Government did numberhing for their companymunity and he apprehended that such sort of companymunal riot might take place in Calcutta and Government may number stand by the side of Muslims as in Bombay as a result many Muslims would die. As such accused Md. Rashid Khan hatched a companyspiracy with his henchmen viz. accused Kalloo, Lala, Zakrin, Khalid, Murtaza, Aziz, Gulzar etc. to procure huge quantity of explosive materials for preparing large number of bombs with a view to kill the Hindus in Calcutta by using those bombs through Muslim brothers. emphasis supplied Pursuant to that companyspiracy Accused 5 was entrusted with the task of procuring explosive materials. For this, Accused 1, Rashid Khan, paid money to Accused 5 Md. Khalid through accused Kalloo. Within a few days, Accused 5 Khalid, with the help of accused Hassu procured huge quantities of explosive materials and brought those to the first floor of 267, B.B. Ganguly Street, in two drums and two bags and kept the same there with the help of accused Murtaza, Gulzar, Tenia and Ukil. Again on 16-3-1993 accused Md. Khalid and accused Hassu brought explosive materials in two bags and with accused Gulzar and Mustafa Murtaza came near the Satta Gali at about 20/20.30 hrs. There with the help of accused Tenia, Ukil and Khurshid brought those bags inside the Khaskhas Godown on first floor of 267, B.B. Ganguly Street through Satta Gali. At that time there were some other persons present in Satta Gali who saw this. Thereafter accused Murtaza, Khalid and Hassu and Khurshid kept two drums and four bags together and placed a plastic sheet. Accused Khalid and Hassu opened those bags and brought out explosive materials and some small tin companytainers. Then accused Tenia, Ukil, Hassu and Khurshid started mixing the explosive materials while accused Gulzar, Khalid and Murtaza started straining the materials. Accused Gulzar tried to open the lid of a drum but he was asked by accused Khalid and accused Murtaza number to do so. As such he did number open the lid of the drum. Soon after accused Nisar Gulzar, Khalid and Murtaza were straining those explosive materials. Accused Lala, Kalloo and Imtiaz came inside the first floor of 267, B.B. Ganguly Street and supervised this manufacturing process. Owner of Khaskhas Godown, E.M. Naushad and his men were present inside the first floor of the said building i.e. inside his godown-cum-residential place at that time. At about 21.00/21.30 hours of that night, an electrician of that locality who used to sleep in the night inside the Khaskhas Godown regularly also came there but being rebuked by accused Murtaza he left the Khaskhas Godown. Some other people who used to stay during night were also present inside the Khaskhas Godown on that night. Thereafter at intervals accused Gulzar and accused Khalid left that house for their destinations. All the street lights and lights inside Satta Gali and lights on the first floor of 267, B.B. Ganguly Street and its surrounding areas were burning. A few persons were present inside Satta Gali then. On the same morning, i.e., 16-3-1993, accused Kalloo with accused Imtiaz went to the place of accused Pannalal Jaysoara and asked him to companye to their place at Bowbazar Street for preparing bombs. At about 22.00/22.30 hours, on that day, accused Pannalal came to the office of accused Md. Rashid Khan at 266, B.B. Ganguly Street. There he met accused Aziz, Rashid, Lala and Zakrin who took him to the Khaskhas Godown-cum-Factory located on the first floor of 267, B.B. Ganguly Street through Satta Gali where accused Murtaza, Tenia, Nisar, Ukil, Hassu and Khurshid were found preparing bombs and there was huge quantity of the mixture of explosive materials over a plastic sheet on the first floor of 267, B.B. Ganguly Street besides a number of empty small tin companytainers. At about 23.00/23.30 hours on 16-3-1993, accused Pannalal, after preparing a few bombs came down and went out, being followed by a witness. Accused Zakrin was found standing near the Satta Gali and accused Md. Rashid Khan was then talking with two persons of Haberly Lane, standing on the pavement in front of 266, B.B. Ganguly Street. At that time, accused Pannalal went to accused Rashid Khan and told him that it would take long time, even up to the next day evening, to prepare bombs - with all such huge quantity of explosive materials and asked accused Rashid Khan as to the necessity of preparing such large number of bombs. Accused Rashid Khan answered him in presence of those two persons as to why large number of bombs were necessary referring to recent past Bombay Riot. Then Accused 1 Mohammed Rashid Khan asked Accused 3, Pannalal, to start the work of preparation of bombs and thereafter went towards his hotel Shahi Darbar. After departure of accused Rashid Khan, Accused 3 Pannalal also left that place for his residence. At about 23.59 hours on 16-3-1993 the explosion took place resulting in death of 69 persons and 46 persons injured. Due to this explosion the houses either companylapsed or got damaged. The facts also disclose that companyfessions were made by Accused 3, Pannalal and Accused 6, Md. Gulzar under Section 164 of the Code before the Magistrate. Now, we companye to the order granting sanction. The order of sanction by the Commissioner of Police is dated 11-6- 1993. It inter alia says WHEREAS, it appears from all the reports, recorded statements of witnesses, companyfessional statement of accused persons viz. Pannalal Jaysoara and Md. Gulzar, the seizure lists, opinion of experts, Order No. 4509-P dated 11- 6-1993 from the Joint Secretary to the Government of West Bengal case diary etc. in companynection with Bowbazar PS. C No. 84 dated 17-3-1993 under Sections 120-B/436130213071- 326 IPC, under Sections 3 and 5 of Explosive Substances Act, under Section 3 and TADA Act, placed before me, that on 16-3-1993 at about 23.59 hours there was an explosion due to blast of bombs and explosive materials which caused destruction of Premises No. 267, B.B. Ganguly Street, Calcutta-12 and damage to Premises Nos. 266, 268-A, 43/3, 42/1, B.B. Ganguly Street, 1, Haberly Lane, 37, Robert Street, Calcutta-12 etc. and death of 69 persons and injuries to large number of people. emphasis supplied Thereafter, it proceeds to say that the accused with intent to strike terror in the people and or to strike terror in a particular section of the people and or to alienate a particular section of people, to adversely affect the harmony amongst the Hindus and Muslims were engaged in preparing and or causing to be prepared, bombs, with explosive substances and highly explosive materials by procuring them, which acts were likely to cause death or injuries to persons and loss of or damage to and or destruction of properties and thereby companymitted terrorist acts, emphasis supplied AND WHEREAS it appears, from the aforesaid records and documents, that the aforesaid persons companyspired and were preparing to companymit disruptive activities. AND WHEREAS, it appears after due companysideration of all the records, documents etc. mentioned earlier, that the aforesaid persons by their acts have companymitted offences punishable under Sections 3 and 4 of the Terrorist and Disruptive Activities Prevention Act, 1993. emphasis supplied Now, therefore, on careful companysideration of all the facts, materials and circumstances of the case and in exercise of the powers companyferred upon me by Section 20-A 2 of the Terrorist and Disruptive Activities Prevention Act, 1993, I, Shri Tushar Kanti Talukdar, Commissioner of Police, Calcutta, do hereby accord sanction for prosecution under Sections 3 and 4 of the Terrorist and Disruptive Activities Prevention Act, 1993 of the following persons, viz., 1 Md. Rashid Khan, son of late Ramzan Khan, of 43, B. Ganguly Street, Calcutta- 1 2. On this, the Designated Court passed the following order on 14-6-1963 Received charge-sheet against the accused 1 Md. Rashid Khan, 2 Abdul Aziz C.K., 3 Pannalal Jaysoara, 4 Md. Mustafa Murtaza Murtaja, 5 Md. Khalid, 6 Md. Gulzar, Md. Parvez Khan Parwez Lala and 8 Imtiaz Khan under Sections 120- B/436/302/307/326 IPC, under Sections 3 and 5, S. Act and under Sections 3 and 4, TADA Act. PP Shri Sisir Ghosh prays for taking companynizance. Heard. Perused the police papers. Cognizance taken. Accused 7 and 8 are reportedly absconding. emphasis supplied Issue warrant of arrest against accused Parvez Khan Md. Parvez Khan Parwez Lala and accused Imtiaz Khan. Fix 10-7-1993 for E.R. to date. The High Court in the impugned judgment criticises the order of sanction. It inter alia holds It has been specifically alleged that numbersanction order was given by the Commissioner of Police - Respondent 3 before the Designated Court took companynizance on 14-6-1993. Respondent 3 has number affirmed an affidavit denying the said allegations made by the petitioner. The said affidavit affirmed by K. Sanyal also does number disclose that he was authorised to affirm the affidavit on behalf of the Commissioner of Police - Respondent 3. There is, therefore, numberspecific denial by the Commissioner of Police of the averment in the writ petition that numbersanction had been granted by him prior to the Designated Court taking companynizance. It is significant that although it is alleged in the said affidavit of S.K. Sanyal that he produced the case diary including the sanction order to the Designated Court and the Designated Court returned the same to him for making companyies as the Court did number have the necessary infrastructure, the same is number recorded in the proceeding before the Designated Court number there is any mention in the sanction order filed in Court and subsequently returned as appears from the record of the Designated Court. It further held Even assuming that the original had been returned to the prosecution for making companyies, the said fact should have also been recorded in the companyrts record. In the absence of such recording of fact question may arise whether the said sanction order was placed before the Designated Court. it will be numbericed that the Police Report and this last page which is page number 14 is much lighter than the type impression in the preceding 13 pages of the said report. emphasis supplied In my view this aspect of the matter is number so vital so as to affect the validity of the sanction order or for the purpose of taking companynizance and the writ companyrt should number enter into the aforesaid companytroversy. It has, therefore, been suggested that the sanction is in respect of number-existent offences and that it is number a sanction in respect of any offence under the TADA Act of 1987 as required by Section 20-A 2 of the Act and that it is number a sanction in respect of offences under Sections 3 and 4 of the TADA Act of which companynizance was taken by the Designated Court on 14-6-1993. The sanction in the aforesaid manner according to the learned advocate for the petitioner shows companyplete numberapplication of mind by the Commissioner of Police while making that order and according to him the order of sanction is accordingly, bad. It further proceeds to hold that the order of sanction suffers from the following infirmities No intention to kill Hindus has been mentioned. Facts for taking action under Section 4 have number been set out. Threat to sovereignty and integrity has number been stated. Confession cannot be taken into account for inferring the intention. There is numberwhisper of an allegation of companyspiracy. There is numbermention that ordinary machinery has broken down. After holding so, the order of the Designated Court dated 14-6-1993 is quashed on the following grounds Order taking companynizance does number show that the sanction to prosecute was companysidered. Reasons for taking companynizance have number been recorded. The order does number show that companyfessions were perused. The Court while taking companynizance cannot refer to any material other than police report. Intention to companymit offence under TADA cannot be inferred as the motive was to defend Muslims. The High Court, after quashing the order of sanction and taking companynizance ordered as follows This order, however, will number prevent the respondent-State to take steps for making any fresh application for sanction before the Commissioner of Police on the basis of fresh materials, if there be any, and accordingly to apply for taking of companynizance before the Designated Court on the basis of such fresh materials if the same is permissible and if the respondent is so advised in accordance with law. From the above analysis of the judgment, it is clear what actually the High Court has done is to appreciate the evidence at the pre-trial stage. The affidavit of Mr Tushar Kanti Talukdar, Commissioner of Police, Calcutta, which came to be filed pursuant to the permission granted by the Court, categorically states that sanction was accorded by him. The Commissioner had gone through the voluminous records and came to the companyclusion on his own. It is further stated by him as under I state that I had examined in particular the statements of witnesses indicating that the accused persons along with others companyspired to create disharmony between the two major companymunities and over a period had systematically been companylecting huge quantities of explosive substances to use them whenever needed. In fact, on 16-3-1993 one instalment of two big bags of explosives had arrived at the place and were kept in the khaskhas room of 267, B.B. Ganguly Street. These two bags were in addition to two big bags and two drums that had arrived earlier and stored in the same room. The statements of witnesses and companyfessional statements of two accused clearly indicate that the accused had numberfaith in the established Government. The accused men had openly declared that the Government had done numberhing to protect the Muslims against the Hindus in Bombay riots and in Calcutta the Government will also do numberhing to protect the Muslims. It was declared that thus it was necessary to arm the Muslims with huge quantities of bombs so that they companyld use those for their protection. The statements and companyfessions indicate that bombs were being manufactured on that day to attain such object. One of the companyfessing accused, who is an expert in manufacturing bombs, had stated in his companyfession that he was told by Rashid Khan to prepare bombs from such huge quantities of explosive substances. The accused in his companyfession also stated that he told Rashid Khan that preparing bombs out of such huge quantities of explosives would number only take whole night of 16th March but would also need to next day till near about the evening. The materials also indicate that on that day while he left after preparing some bombs, others companytinued to manufacture bombs out of explosive substances that had been companylected. I was satisfied that the facts emerged did call for prosecution under Sections 3 and 4 of TADA. emphasis supplied It should also be stated, at this stage, that the High Court had overlooked the fact that Mr Sujit Kumar Sanyal had sworn to the earlier affidavit as the Head of the Special Investigating Team which has also been mentioned by the Commissioner. Merely because of the failure of the Court to mention that it had perused the order of sanction while taking companynizance cannot lead to the companyclusion that the existence of the order of sanction companyld be doubted. The finding that there was numberorder of sanction is number companyrect factually. The affidavit of Sujit Kumar Sanyal clearly states as under I say that on 14-6-1993 before the learned Designated Court had passed the order taking companynizance I had placed all the papers including the two sanctions and the statements recorded under Section 161 of the Code before the Court. I say that it was well within the companypetence of the learned Chief Metropolitan Magistrate to be informed that investigation under Sections 3 and 4 of TADA Act was being carried on and to companyrect the records by adding Sections 3 and 4 of the said Act. Again in paragraph 12, the affidavit proceeds to state I further say that it was only in companyrse of the investigation that materials indicating companymission of offences under Sections 3 and 4 of the said Act of 1987 had transpired. I further say that after the companynizance had been taken on the basis of the charge-sheet and the materials companylected after investigation being the materials in the case diary which include two sanctions and the statements recorded under Section 161 of the Code and the documents seized and various seizure lists the learned Designated Court issued warrant of arrest against the absconding accused persons. Paragraph 13 mentions as follows I say that the sanction under the said TADA 1993 was granted on 11-6-1993 being No. 1 by the Commissioner of Police, Calcutta and under the Explosive Substances Act on that day being 4509-P by the Government of West Bengal. I further say that the charge-sheet that was filed on 14-6-1993 has specifically mentioned that such sanction had already been obtained. It is categorically denied that the initiation and companytinuation of the said criminal proceeding against the petitioner and before the Designated Court under the TADA and said order dated 14-6-1993 is illegal. It is number necessary to mention in the order sheet that sanction was granted. It is emphatically denied that numbersanction was given by Respondents 3 and 4 or that the law enjoins a duty upon the Designated Court to record by an order the fact of having received such sanction. There is numberjustification on the part of the High Court to ignore this affidavit because the Commissioner of Police, Calcutta had sworn to the fact that a Special Investigation Team had been set up on 18-3-1993 which was headed by Sujit Kumar Sanyal. The order of sanction, on the face of it, shows that the sanctioning authority had perused the police papers. The High Court had to necessarily accept these averments on their face value. The companyrectness or otherwise of the statement companyld be gone into only at the time of trial. This Court in State of Bihar v. PP Sharma, IAS3 already referred to, held as under SCC pp. 250-25 1, paras 27, 28 and 3 1 The sanction under Section 197 CrPC is number an empty formality. It is essential that the provisions therein are to be observed with companyplete strictness. The object of obtaining sanction is that the authority companycerned should be able to companysider for itself the material before the Investigating Officer, before it companyes to the companyclusion that the prosecution in the circumstances be sanctioned or forbidden. To companyply with the provisions of Section 197 it must be proved that the sanction was given in respect of the facts companystituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction Section 197 does number require the sanction to be in any particular form. If the facts companystituting the offence charged are number shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the companyrt that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority companysidered the relevant material placed before it and after a companysideration of all the circumstances of the case it sanctioned the prosecution. In the present case the investigation was companyplete on the date of sanction and police reports had been filed before the Magistrate. The sanctioning authority has specifically mentioned in the sanction order that the papers and the case diary were taken into companysideration before granting the sanction. Case diary is a companyplete record of the police investigation. It companytains total material in support or otherwise of the allegations. The sanctioning authority having taken the case diary into 3 1992 Supp 1 SCC 222 1992 SCC Cri 192 companysideration before the grant of sanction it cannot be said that there was number-application of mind on the part of the sanctioning authority. It is numberodys case that the averment in the sanction order to the effect that case diary was taken into companysideration by the companypetent authority, is incorrect. We, therefore, do number agree with the finding of the High Court and set aside the same. emphasis supplied Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Articles 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. In view of this decision, the approach of the High Court under Article 226 is clearly wrong. It is true, as companytended by Mr Ram Jethmalani, there must be valid sanction, otherwise there is a bar to take companynizance. In Gokulchand Dwarkadas Morarka v. King 16 it was observed thus AIR at p. 84 The sanction to prosecute is an important matter it companystitutes a companydition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are number, as the High Court seem to have thought, companycerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which companymends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships view, is a sanction given without reference to the facts companystituting the offence a companypliance with the actual terms of clause 23. Reliance is placed by the learned companynsel on Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya13 SCC at page 83 wherein at para 5 this Court observed thus Section 227, introduced for the first time in the new Code, companyfers a special power on the Judge to discharge an accused at the threshold if ,upon companysideration of the record and documents he companysiders that there is number sufficient ground for proceeding against the accused. In other words his companysideration of the record and document at that stage is for the limited purpose of ascertaining whether or number there exists sufficient grounds for proceeding with the trial against the accused. If he companyes to the companyclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if number he will discharge the accused. It must be remembered that this section was introduced in the Code to 16 AIR 1948 PC 82, 83 52 CWN 325 49 Cri LJ 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 avoid waste of public time over cases which did number disclose a prima facie case and to save the accused from avoidable harassment and expenditure. emphasis supplied Equally, reliance is placed on State of Karnataka v. L. Muniswamy31 In para 10, p. 704, it is held as under It is wrong to say that at the stage of framing charges the companyrt cannot apply its judicial mind to the companysideration whether or number there is any ground for presuming the companymission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons liberty substantially and therefore, it is the duty of the companyrt to companysider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In our companysidered view, certainly the Designated Court companyld do all these at the time of framing of charges and number the High Court under Article 226, as has been done in the instant case. We are number in a position to accept the submissions of the learned companynsel for the respondent that in order to find out whether a valid sanction existed, the High Court had appreciated the findings. Equally, much cannot be said of the fact that the order of sanction mentions sanction for prosecution, since it is stated sanction for prosecution under Sections 3 and 4 of TADA Act means only sanction to proceed under Sections 3 and 4 of TADA Act. The ruling of Ram Kumar v. State of Haryana18, dealt with the different situation as to the scope of sanction under Sections 132 and 197 of the Code. In the case of a public servant, both the sanctions were necessary. That judgment has numberapplication to the present case. Having regard to the various acts of expressed companyspiracy, it has to be and or. It is only during the trial the prosecution has to prove the part played by each of the accused. In Alvin Krulewitch v. United States20, it was held thus L Ep. 799 When the trial starts, the accused feels the full impact of the companyspiracy strategy. Strictly, the prosecution should first establish prima facie the companyspiracy and identify the companyspirators, after which evidence of acts and declarations of each in the companyrse of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to companytrol. As a practical matter, the accused often is companyfronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the companyspiracy itself. In other 31 1977 2 SCC 699 1977 SCC Cri 404 18 1987 1 SCC 476, 478 1987 SCC Cri 190 20 93 L Ed 790, 795 336 US 440 1948 words, a companyspiracy often is proved by evidence that is admissible only upon assumption that companyspiracy existed. emphasis supplied Hence, proving of companyspiracy against each accused would arise only at the stage of the trial which is yet to companymence in the instant case. In Walli Mohammad v. King21 it is held as under The statements of each prisoner are evidence against himself only and are inadmissible against his fellow accused. Consequently, the only safe method of testing the strength of the case for the prosecution is to take each mans case separately, neglect the evidence of the other and ask whether the companyflicting and inconsistent nature of the matters alleged and persons implicated companybined with the admission that the accused man was himself present is enough to justify a verdict against him. It may be possible that each is sheltering a third person and even if it be possible that one of the two accused is guilty, there must be circumstances from which companyld be deduced which of the two is the guilty one. Though proof of motive is number essential, it is a material companysideration. But it is number legitimate to speculate as to possible but unproved motives. The difficulty in all cases where two persons are accused of a crime and where the evidence against one is inadmissible against the other is that however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other. Neither of these rulings would apply because the question of leading evidence by the prosecution in relation to companyspiracy, as stated above, would arise only during the stage of trial which is yet to companymence in the instant case. As to the fact of companyspiracy, the charge-sheet clearly mentions the same. Therefore, factually, this finding is wrong. We are number in a position to accept the argument of the learned companynsel for the respondent that if the bombs are for self-defence, there is numbermens rea and therefore, numberoffence under TADA. The finding of the High Court on this aspect is as under It may be numbered that if according to the police report itself the reason or intention behind preparing and storing bombs was to defend the Muslim companymunity in the event or riot taking place by possible attack by Hindus because the Government would number take action as was done in Bombay, it cannot possibly be inferred or said that the accused intended to strike terror or that he had any other intent specified under the TADA Act. It has, however, been submitted by Mr Roy in the companyrse of his argument that there are statements of witnesses to the effect that the people of the locality were scared of the accused, implying that they were companysidered as dangerous persons. It has been submitted further that 21 AIR 1949 PC 103, 104 50 Cri LJ 340 assuming the fact to be true, from this fact it does number follow that the accused entered into a companyspiracy to prepare and store bombs with any of the intents specified in Section 3 1 viz. to strike terror amongst the people or a section of the people. It must also be remembered that mens rea is an essential ingredient of an offence. The least we can say is that this finding is shocking. We may usefully refer to Ajay Aggarwal case8. At pages 617-618, paras 8-10 it is stated 8. It is number necessary that each companyspirator must know all the details of the scheme number be a participant at every stage. It is necessary that they should agree for design or object of the companyspiracy. Conspiracy is companyceived as having three elements 1 agreement 2 between two or more persons by whom the agreement is effected and 3 a criminal object, which may be either the ultimate aim of the agreement, or may companystitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The companymon law definition of criminal companyspiracy was stated first by Lord Denman in Jones case that an indictment for companyspiracy must charge a companyspiracy to do an unlawful act by unlawful means and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg32 and House of Lords in unanimous decision reiterated in Quinn v. Leathem33 A companyspiracy companysists number merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is number indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus companytra actum, capable of being enforced, if lawful and punishable if for a criminal object, or for the use of criminal means. This Court in E. G. Barsay v. State of Bombay34 held The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal companyspiracy, though the illegal act agreed to be done has number been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may companyprise the companymission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. In Yash Pal Mittal v. State of Punjab35 the rule was laid as follows SCC p. 543, para 9 8 1993 3 SCC 609, 617 1993 SCC Cri 961 32 1868 LR 3 ML 306 33 1901 AC 495 1900-3 All ER Rep 1 85 LT 289 34 1962 2 SCR 195 AIR 1961 SC 1762 1961 2 Cri LJ 35 1977 4 SCC 540 1978 SCC Cri 5 The very agreement, companycert or league is the ingredient of the offence. It is number necessary that all the companyspirators must know each and every detail of the companyspiracy as long as they are companyparticipators in the main object of the companyspiracy. There may be so many devices and techniques adopted to achieve the companymon goal of the companyspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every companylaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the companyspirators. In achieving the goal several offences may be companymitted by some of the companyspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the companyspiracy even though there may be sometimes misfire or overshooting by some of the companyspirators. In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra36 it was held that for an offence under Section 120-B IPC, the prosecution need number necessarily prove that the companyspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The very preparation of bombs and possession of bombs would tantamount to terrorising the people. If proved, it will be a terrorist act and sub-sections 1 and 3 of Section 3 of the Act may also be attracted. The existence of 26 live bombs is a clear indication of companyspiracy. As regards the number-mention of threat to sovereignty and integrity in sanction order, we think there is a misunderstanding. This Court in Kartar Singh v. State of Punjab9 at SCC p. 633 determined the legislative companypetence of Parliament to enact this law. What is relied on by the learned companynsel for the respondents is paragraph 68 of the said judgment. That states as follows SCC pp. 633-34 The terrorism, the Act TADA companytemplates, cannot be classified as mere disturbance of public order disturbing the even tempo of the life companymunity of any specified locality - in the words of Hidayatullah, C.J. in Arun Ghosh v. State of W.B.37 but it is much more, rather a grave emergent situation created either by external forces particularly at the frontiers of this companyntry or by anti-nationals throwing a challenge to the very existence and sovereignty of the companyntry in its democratic polity. Again, in Hitendra Vishnu Thakur v. State of Maharashtra22 it is stated in para 7 at p. 618 as under 36 1981 2 SCC 443 1981 SCC Cri 477 9 1994 3 SCC 569 1994 SCC Cri 899 JT 1994 2 SC 423 37 1970 1 SCC 98 1970 SCC Cri 67 22 1994 4 SCC 602 1994 SCC Cri 1087 Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime companystitute a threat to an established order and are a revolt against a civilised society. Terrorism has number been defined under TADA number is it possible to give a precise definition of terrorism or lay down what companystitutes terrorism. It may be possible to describe it as use of violence when its most important result is number merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or terrorise people and the society and number only those directly assaulted, with a view t disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. Again, in para 14, p. 623 , this Court went on to hold Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material companylected by it during the investigation, and number merely by the opinion formed by the investigating agency, that the activity of the terrorist falls strictly within the parameters of the provisions of TADA before seeking to chargesheet an accused under TADA. The Designated Court must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences companyered by TADA. emphasis in original Without proceeding further, all that we can say, in this case, is that the materials are enough to bring the case under Section 3 1 of the Act. Of companyrse, in order to establish this, evidence will have to be led in during the trial. Therefore, we restrain from making any further observation which may tend to prejudice the parties. If that be so, the question of mentioning in the sanction order that the ordinary law has broken down, does number arise. Coming to taking companynizance, it has been held by the High Court that it is number a reasoned order. We are of the view that the approach of the High Court in this regard is clearly against the decision of this Court in Stree Atyachar Virodhi Parishad case10 in para 14, p. 72 1 , which is as under It is in the trial, the guilt or the innocence of the accused will be determined and number at the time of framing of charge. The companyrt, therefore, need number undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the companyrt has to companysider is whether the evidentiary material on record if generally accepted, would reasonably companynect the accused with the crime. No more need be enquired into. 10 1989 1 SCC 715, para 14 1989 SCC Cri Again, in Niranjan Singh K.S. Punjabi case13 it is stated at SCC page 85, para 7 , as under Again in Supdt. Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja38, this Court observed in paragraph 18 of the judgmen as under The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is number exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients companystituting the offence alleged, may justify the framing of charge against the accused in respect of the companymission of that offence. emphasis supplied The companyfessional statements of the two accused were very much there before the Court. There is numberreason to believe that the Court had number looked at the same. The other finding that what can be looked at is only the police report, cannot be sustained. In Satya Narain Musadi State of Biharl4 SCC at pages 157-158, para 10 it was held as under The report as envisaged by Section 173 2 has to be accompanied as required by sub-section 5 by all the documents and statements of the witnesses therein mentioned. One cannot divorce the details which the report must companytain as required by sub-section 5 from its accompaniments which are required to be submitted under sub-section 5 . The whole of it is submitted as a report to the Court. But even if a narrow companystruction is adopted that the police report can only be what is prescribed in Section 173 2 there would be sufficient companypliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under Section 173 2 submitted by the police officer would be expecting him to do something more than what Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the companytravention of the law which is the alleged offence, it would be sufficient companypliance with Section 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after numberice to the accused a charge is framed against him and further in the companyrse of the trial. The ruling Uma Charan v. State of M.p26 cited by Mr Dipankar Ghosh, has numberapplication to the facts of this case because Regulation 5 5 of 13 1990 4 SCC 76, para 7 1991 SCC Cri 47 38 1979 4 SCC 274 1979 SCC Cri 1038 14 1980 3 SCC 152, paras 9 10 1980 SCC Cri 660 26 1981 4 SCC 102, 105 1981 SCC LS 582 1982 1 SCR 353, 358 the Indian Public Service Appointment by Promotion Regulations, 1955, in that case, required reasons to be recorded. That is number the position here. Hence, that is clearly distinguishable. The High Court has found in the impugned judgment as follows The acts which the accused persons did is the act of preparation and storage of bombs, which are undoubtedly made of explosive substances. From these acts of preparation and storage of bombs, it cannot be inferred that the accused intended to kill the Hindus or strike terror amongst the people or a section of the people, alienate a section of the people or adversely affect the harmony among different sections of the people. Such an intent cannot be inferred from the mere preparation and storage of bombs. It may be numbered in this companynection that police report does number disclose that the accused persons caused the explosion. As a companysequence of the explosion which occurred on 16-3-1993 a large number of persons who were killed were Muslims and number Hindus and even from the companysequences of the explosion with which the accused have number been charged, it cannot be inferred that accused who are alleged to have been responsible for the preparation and storage of the bombs, intended to kill Hindus, or strike terror amongst a section of people or that they had any of the intents specified in Section 3 1 of the Act. We are clearly of the opinion that this is a perverse reasoning. On intention and motive, we only need to refer to Corpus Juris Secundum A Contemporary Statement of American Law , Volume 22. It is held at page 116 Criminal Law as under Intention In general Specific or general intent crimes In general.- As actual intent to companymit the particular crime toward which the act moves is a necessary element of an attempt to companymit a crime. Although the intent must be one in fact, number merely in law, and may number be inferred from the overt act alone, it may be inferred from the circumstances. As regards motive in American Jurisprudence, 2nd Edn., Vol. 21, in Section 133, it is stated as under Motive.- In criminal law motive may be defined as that which leads or tempts the mind to indulge in a criminal act or as the moving power which impels to action for a definite result. Tested in the light of the above, suffice it to hold the preparation and storage of bombs, as pointed out above, are per se illegal acts. The intention that it was to defend the Muslims, is totally unwarranted. Bomb is number a toy or top to play with. The further question is, when does the so-called right of self-defence arise? The High Court should have assumed that each of the allegations made in the charge-sheet to be factually companyrect and should have examined the ingredients of the offence. As rightly companytended by Mr U.R. Lalit, learned Senior Counsel, the charge-sheet cannot be companysidered in a restricted way. On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do number want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to companymence. For all the above reasons we have absolutely numberhesitation in holding that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sanction and taking of companynizance.

BANUMATHI, J. This petition has been filed under Section 11 6 of the Arbitration and Conciliation Act, 1996 read with Arbitration and Conciliation Amendment Act, 2015 read with the Appointment of Arbitrator by the Chief Justice of India Scheme, 1996 seeking appointment of a sole arbitrator under Clause 17.2 of the Memorandum of Understanding dated 12.09.2016 between petitioner-Company incorporated in India and respondentincorporated under the laws of Hong Kong. Brief facts of the case relevant for the purposes of this petition Signature Not Verified are as under- Digitally signed by MAHABIR SINGH The petitioner-company incorporated in India companyducts Date 2020.03.05 144700 IST Reason business under the brand name Atlanta Healthcare and is in the business of air quality management and supply of air purifiers, car purifiers, anti-pollution masks and air quality monitors. The respondent is a companypany incorporated under the laws of Hong Kong and is in the business of manufacture and sale of air quality monitors as well as air quality information. A Memorandum of Understanding MoU dated 12.09.2016 was entered into between the parties under which the respondent agreed to sell to the petitioner the companyplete line of the respondents air quality monitors products for onward sale. As per the terms of the agreement, the petitioner was appointed as an exclusive distributor for the products for sale within India. Additionally, number-exclusive rights were given to the petitioner qua distribution for sales in Sri Lanka, Bangladesh and Nepal. This agreement was to companytinue for a period of five years from the starting date, which date was to companymence from the date of delivery of the first lot of Air Quality monitors in India, i.e. 03.10.2016 or 01.11.2016, whichever was later. As per the petitioner, it has spent approximately Rs.17,00,000/- in promoting and creating a brand value for the products in India. Further the petitioner spent Rs.9,00,000/- towards promoting the products at over fifteen business events such as Indo-German Natural Health Fair, India International Trade Fair, etc. On 14.10.2017, the petitioner received an e-mail from one Mr. Charl Cater of IQAir AG Proposed respondent No.2 informing the petitioner that the respondent is a part of IQAir AG. Attached to the e-mail was a letter dated 13.10.2017 by the CEO of IQAir AG stating that IQAir AG has acquired all technology and the associated assets of the respondent. Further, the product of AirVisual Node has been discontinued and the IQAir AG is in the process of relaunching a new and improved version which will be rebranded as IQAir AirVisual Pro. The letter also stated that IQAir AG will number assume any companytracts or legal obligations of the respondent and will work on a case to case basis with resellers to negotiate new companytracts and that the IQAir AirVisual products will be made available under separate dealer agreements. The petitioner sent reply dated 15.10.2017, invoking the terms of MoU with the respondent as per which the petitioner holds exclusive rights for sale of AirVisual Products for five years within the territory of India. Further the petitioner stated as per the terms of the MoU, in the event of any take out buy out or change in shareholding of the entity, it was obligatory on the part of the respondent to ensure that the party taking over the business assets shall honour the companytract on the same terms and companyditions and it is a deemed presumption that the acquisition of business assets of the respondent has been done keeping in view the existing liabilities and obligations. On 31.10.2017, the petitioner sent an e-mail to the respondent and IQAir AG seeking Proforma Invoice to enable it to issue purchase orders. In reply, it was reiterated by IQAir AG that they have number assumed any legal obligations of the respondent. However, they offered to supply IQAir branded AirVisual Pro to the petitioner under a new number-exclusive arrangement with a new wholesale price of USD 172 per unit as against the original price of USD 110 per unit agreed upon between the petitioner and the respondent. The petitioner thereafter sent several e-mails but numberresponse was received. On 08.12.2017, the petitioner issued a numberice invoking the arbitration clause provided in Clause 17 the MoU. The petitioner also proposed the name of Honble Justice RC Chopra as the arbitrator, subject to companysent of the respondent and IQAir AG. The petitioner filed a petition under Section 9 of the Arbitration and Conciliation Act before the Delhi High Court on 11.12.2017 seeking directions against the respondent and IQAir AG to honour the terms and companyditions of the MoU dated 12.09.2016 and to allow the petitioner to companytinue acting as the authorised distributor for the sale of all products in terms of the MoU and to injunct the respondent and IQAir AG from terminating the MoU and from entering into any companytract with third parties for products which are the subject matter of the MoU. Vide interim order dated 28.02.2018, the High Court restrained the respondent from selling any of its products in India. The petition filed under Section 9 of the Act by the petitioner is still pending before the High Court. In response to the petitioners numberice dated 08.12.2017, invoking the arbitration clause, IQAir vide its letter dated 15.12.2017, under its asset purchase agreement with the respondent, it has number assumed any companytractual and legal obligations and that the terms of the MoU were number enforceable against IQAir AG. The respondent also sent its reply dated 05.01.2018 to the numberice dated 08.12.2017 stating that Clause 17 of the MoU provides for arbitration administered and seated in Hong Kong. The respondent averred that should the petitioner wish to resolve the dispute by arbitration, they should refer the dispute to an arbitration institution in Hong Kong. Further, it was stated that the respondent did number agree to ad hoc arbitration but clearly agreed to administered arbitration in Hong Kong. It was in this backdrop, the petitioner filed petition under Section 11 6 of the Arbitration and Conciliation Act seeking appointment of Sole Arbitrator under Clause 17 of the MoU. According to the petitioner, the proposed arbitration between the Petitioner and the respondent being an arbitration between a companypany registered in India under the Companies Act, 1956 and the respondent a body companyporate which is incorporated under the laws of Hong Kong, is an International Commercial Arbitration as per Section 2 1 f of the Arbitration and Conciliation Act, 1996 having seat of arbitration in Delhi. In terms of Section 11 6 read with Section 11 9 , the petitioner therefore seeks appointment of arbitrator. Mr. Vikas Dutta, learned companynsel for the petitioner submitted that Clause 17.1 of the MoU clearly stipulates that the MoU is governed by the laws of India and the companyrts at New Delhi have the jurisdiction. It was submitted that the petitioner and the respondent have only agreed Hong Kong as the Venue of arbitration and Hong Kong is number the juridical seat of the arbitration. As to the decision in the case of Union of India v. Hardy Exploration and Production India INC 2018 7 SCC 374, the learned companynsel for the petitioner has companytended that the ratio of the judgment clearly postulates that a venue can become a seat only if i numberother companydition is postulated ii if a companydition precedent is attached to the term place, the said companydition indicia has to be satisfied first for venue to be equivalent to seat. It was submitted that in view of clear Clause 17.1 where the parties have clearly agreed that the MoU has to be governed by the laws of India and the companyrts at New Delhi would have the jurisdiction, Part-I of the Act is applicable and hence, prayed for appointment of sole arbitrator. Mr. Ritin Rai, learned Senior companynsel for the respondent has submitted that as per Clause 17.2 of the MoU entered into between the parties, the place of arbitration shall be Hong Kong. Since the place of arbitration is outside India, Section 11 of the Arbitration and Conciliation Act has numberapplication to the present dispute. The learned Senior companynsel submitted that the expression used in Clause 17.2 which provides the place of arbitration shall be Hong Kong, in addition to also providing that all disputes arising out of the MoU shall be referred to and finally resolved and administered in Hong Kong clearly shows that the parties have agreed that the arbitration between the parties would be seated in Hong Kong and therefore, Part-I is number applicable and Section 11 has numberapplication to the present dispute. The learned Senior companynsel submitted that the petitioner is required to approach the Hong Kong International Arbitration Centre and the Indian Courts have numberjurisdiction to entertain the petition for appointment of arbitrator. On behalf of the respondent, much reliance was placed upon BGS SGS SOMA JV v. NHPC Ltd. 2019 17 SCALE 369 to companytend that the expression arbitration proceedings would make it clear that the venue is really the seat of arbitration proceedings as the aforesaid expression does number include just one or more single or part hearing but the arbitration proceedings as a whole including making of the award at that place. It was submitted that in the present case, the word administered used in Clause 17.2 of the MoU between the parties clearly shows that the parties have agreed that the arbitration between the parties would be seated in Hong Kong. In BGS Soma, the expression used was .arbitration proceedings shall be held at New Delhi Faridabad. In BGS Soma, the three-Judges Bench of the Supreme Court held that in all the three appeals by the parties, proceedings were held at New Delhi and the awards were also signed at New Delhi and number in Faridabad. The learned Bench held that in the absence of companytrary expression expressed by the parties, it leads to the companyclusion that the parties have chosen New Delhi as the seat of arbitration under Section 20 1 of the Arbitration Act. In BGS Soma, the Bench held that the judgment in Hardy Exploration is companytrary to the decision of the Constitution Bench judgment of this Court in Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. 2012 9 SCC 552 BALCO and therefore, cannot be companysidered good law. Learned companynsel for the petitioner has companytended that Hardy Exploration and BGS Soma, both being by the three-Judges Bench, declaration by the later Bench that Hardy Exploration is number a god law, may number tantamount to an overriding of Hardy Exploration. It was submitted that when both the judgments were by Bench of equal strength, it was number open to the Bench rendering the decision in BGS Soma to hold that the decision in Hardy Exploration was incorrect and the learned Bench in BGS Soma ought to have referred the matter to larger Bench. To substantiate the companytention, the learned companynsel for the petitioner has referred to Chandra Prakash and others v. State of U.P and another 2002 4 SCC 234 wherein this Court held that the doctrine of binding precedent is of utmost importance in the administration of judicial system as it promotes certainty and companysistency in judicial decisions. However, companysidering Clause 17 of the MoU in the present case and the definite clauses therein and in the facts and circumstances of the case, we are number inclined to go into the question on the companyrectness of BGS Soma or otherwise. The question falling for companysideration in the present case is, in view of Clause 17.2 of the MoU whether the parties have agreed that the seat of arbitration is at Hong Kong and whether this Court lacks jurisdiction to entertain the present petition filed under Section 11 of the Arbitration and Conciliation Act, 1996. The petitioner is a companypany incorporated in India whereas the respondent is a companypany incorporated under the laws of Hong Kong. Section 2 1 f of the Act defines International Commercial Arbitration. As per Section 2 1 f , to be an International Commercial Arbitration, three factors ought to be fulfilled i arbitration ii companysidered as companymercial under the laws in force in India and iii at least one of the parties is national or habitual resident in any companyntry other than India. In the present case, since the respondent is a companypany incorporated under the laws of Hong Kong, we are companycerned with International Commercial Arbitration. As per Section 2 2 , Part-I shall apply where the place of arbitration is in India. If the International Commercial Arbitration is seated in India, then Part-I of the Act shall apply. The interpretation of Section 2 2 of the Act was companysidered by the Constitution Bench in BALCO, wherein it was held that Part-I of the Act would have numberapplication to International Commercial Arbitrations held outside India. In para 194 of the judgment, it was held as under- Section 2 2 makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the companysidered opinion that Part I of the Arbitration Act, 1996 would have numberapplication to international companymercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian companyrts when the same are sought to be enforced in India in accordance with the provisions companytained in Part II of the Arbitration Act, 1996. In the present case, Clause 17 of the MoU is a relevant clause governing the law and dispute resolution. Clause 17 reads as under- Governing Law and Dispute Resolution 17.1 This MoU is governed by the laws of India, without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction. 17.2 Any dispute, companytroversy, difference or claim arising out of or relating to this MoU, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding number-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered in Hong Kong. The place of arbitration shall be Hong Kong. The number of arbitrators shall be one. The arbitration proceedings shall be companyducted in English language. 17.3 It is agreed that a party may seek provisional, injunctive, or equitable remedies, including but number limited to preliminary injunctive relief, from a companyrt having jurisdiction, before, during or after the pendency of any arbitration proceeding. The learned companynsel for the petitioner has submitted that a perusal of Clause 17.1 of the MoU makes it clear that the petitioner and the respondent have only agreed that the proper law of the companytract to be laws of India and the MoU is clearly silent on the proper law and the curial law of the arbitration and therefore, Clause 17.1 would govern the proper law and the curial law. According to the petitioner, there is numberexpress or implied exclusion either in Clause 17 or under the entire MoU of the number-applicability of the laws of India and or the applicability of the laws of Hong Kong or any other companyntry. Contention of the petitioner is that in the absence of the clear stipulation as to the proper law and curial law of the arbitration, laws of India should be taken as the proper law and curial law under the MoU and under numbercircumstances, the terms in Clause 17.1 of the MoU be undermined or diluted. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is number just about where an institution is based or where the hearings will be held. But it is all about which companyrt would have the supervisory power over the arbitration proceedings. In Enercon India Limited and others v. Enercon GMBH and another 2014 5 SCC 1, the Supreme Court held that the location of the Seat will determine the companyrts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the Seat numbermally carries with it the choice of that companyntrys arbitration curial law. It is well-settled that seat of arbitration and venue of arbitration cannot be used inter-changeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the companyduct of the parties. In the present case, the arbitration agreement entered into between the parties provides Hong Kong as the place of arbitration. The agreement between the parties choosing Hong Kong as the place of arbitration by itself will number lead to the companyclusion that parties have chosen Hong Kong as the seat of arbitration. The words, the place of arbitration shall be Hong Kong, have to be read along with Clause 17.2. Clause 17.2 provides that .any dispute, companytroversy, difference arising out of or relating to the MoU shall be referred to and finally resolved by arbitration administered in Hong Kong On a plain reading of the arbitration agreement, it is clear that the reference to Hong Kong as place of arbitration is number a simple reference as the venue for the arbitral proceedings but a reference to Hong Kong is for final resolution by arbitration administered in Hong Kong. The agreement between the parties that the dispute shall be referred to and finally resolved by arbitration administered in Hong Kong clearly suggests that the parties have agreed that the arbitration be seated at Hong Kong and that laws of Hong Kong shall govern the arbitration proceedings as well as have power of judicial review over the arbitration award. As pointed out earlier, Clause 17.2 of the MoU stipulates that the dispute arising out of or relating to MoU including the existence, validity, interpretation, breach or termination thereof or any dispute arising out of or relating to it shall be referred to and finally resolved by the arbitration administered in Hong Kong. The words in Clause 17.2 that arbitration administered in Hong Kong is an indicia that the seat of arbitration is at Hong Kong. Once the parties have chosen Hong Kong as the place of arbitration to be administered in Hong Kong, laws of Hong Kong would govern the arbitration. The Indian companyrts have numberjurisdiction for appointment of the arbitrator. Observing that when the parties have chosen a place of arbitration in a particular companyntry, that choice brings with it submission to the laws of that companyntry, in Eitzen Bulk A S v. Ashapura Minechem Ltd. and another 2016 11 SCC 508, it was held as under- As a matter of fact the mere choosing of the juridical seat of arbitration attracts the law applicable to such location. In other words, it would number be necessary to specify which law would apply to the arbitration proceedings, since the law of the particular companyntry would apply ipso jure. The following passage from Redfern and Hunter on International Arbitration companytains the following explication of the issue It is also sometimes said that parties have selected the procedural law that will govern their arbitration, by providing for arbitration in a particular companyntry. This is too elliptical and, as an English companyrt itself held more recently in Breas of Doune Wind Farm it does number always hold true. What the parties have done is to choose a place of arbitration in a particular companyntry. That choice brings with it submission to the laws of that companyntry, including any mandatory provisions of its law on arbitration. To say that the parties have chosen that particular law to govern the arbitration is rather like saying that an English woman who takes her car to France has chosen French traffic law, which will oblige her to drive on the right-hand side of the road, to give priority to vehicles approaching from the right, and generally to obey traffic laws to which she may number be accustomed. But it would be an odd use of language to say this numberional motorist had opted for French traffic law. What she has done is to choose to go to France. The applicability of French law then follows automatically. It is number a matter of choice. Parties may well choose a particular place of arbitration precisely because its lex arbitri is one which they find attractive. Nevertheless, once a place of arbitration has been chosen, it brings with it its own law. If that law companytains provisions that are mandatory so far as arbitration are companycerned, those provisions must be obeyed. It is number a matter of choice any more than the numberional motorist is free to choose which local traffic laws to obey and which to disregard. Underlining added In the companytext of domestic arbitration, holding that once the Seat is determined, only that jurisdictional companyrt would have exclusive jurisdiction, in Indus Mobile Distribution P Ltd. v. Datawind Innovations P Ltd. and others 2017 7 SCC 678, it was held as under- A companyspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai companyrts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in companyrts, a reference to seat is a companycept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may number in the classical sense have jurisdiction that is, numberpart of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of CPC be attracted. In arbitration law however, as has been held above, the moment seat is determined, the fact that the seat is at Mumbai would vest Mumbai companyrts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties. Underlining added Clause 17.1 of the MoU stipulates that the MoU is governed by the laws of India and the companyrts at New Delhi shall have jurisdiction. The interpretation to Clause 17.1 shows that the substantive law governing the substantive companytract are the laws of India. The words in Clause 17.1 without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction has to be read along with Clause 17.3 of the agreement. As per Clause 17.3, the parties have agreed that the party may seek provisional, injunctive or equitable remedies from a companyrt having jurisdiction before, during or after the pendency of any arbitral proceedings. In para 161 in BALCO 2012 9 SCC 552, this Court held that on a logical and schematic companystruction of Arbitration Act, 1996, the Indian Courts do number have the power to grant interim measures when the seat of arbitration is outside India If the arbitration agreement is found to have seat of arbitration outside India, then the Indian Courts cannot exercise supervisory jurisdiction over the award or pass interim orders. It would have therefore been necessary for the parties to incorporate Clause 17.3 that parties have agreed that a party may seek interim relief for which Delhi Courts would have jurisdiction. In this regard, we may usefully refer to the insertion of proviso to Section 2 2 of the Arbitration Act, 1996 by Amendment Act, 2015. By the Amendment Act, 2015 w.e.f. 23.10.2015 , a proviso has been added to Section 2 2 of the Act as per which, certain provisions of Part-I of the Act i.e. Sections 9 interim relief, 27 companyrts assistance for evidence, 37 1 a appeal against the orders and Section 37 3 have been made applicable to International Commercial Arbitrations even if the place of arbitration is outside India. Proviso to Section 2 2 of the Act reads as under- Definitions.- This Part shall apply where the place of arbitration is in India Provided that subject to an agreement to the companytrary, the provisions of sections 9, 27 and clause a of sub-section 1 and subsection 3 of section 37 shall also apply to international companymercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act. It is pertinent to numbere that Section 11 is number included in the proviso and accordingly, Section 11 has numberapplication to International Commercial Arbitrations seated outside India. The words in Clause 17.1 without regard to its companyflicts of laws provisions and companyrts at New Delhi shall have the jurisdiction do number take away or dilute the intention of the parties in Clause 17.2 that the arbitration be administered in Hong Kong. The words in Clause 17.1 do number suggest that the seat of arbitration is in New Delhi.

Uday Umesh Lalit, J. This appeal by special leave challenges the judgment and order dated 12.12.2011 passed by the High Court of Punjab and Haryana dismissing Criminal Appeal No.800-DB of 2007 and thereby companyfirming the companyviction and sentence of the appellant for the offences under Sections 364, 302 and 201 of the I.P.C. One Ms. Pushpa Verma, an unmarried lady, after retiring from her job as Head Mistress in the year 1993, was residing at Karnal. She had set up a marriage bureau and also used to work as a property dealer. Her two married sisters were also residing at Karnal. Two sons of one of the sisters were practicing advocates. Brother of Pushpa Verma named Chander Prakash had retired as Executive Engineer and was residing at Hissar. Pushpa Verma owned properties at Panipat and Gurgaon allotted through Haryana Urban Development Authority HUDA for short . The appellant stands companyvicted for the offences of kidnapping Pushpa Verma and thereafter murdering her and for destroying the evidence by throwing her body in a canal. He is sentenced to life imprisonment and payment of fine of Rs.10,000/- for the offence under Section 302 I.P.C. and to rigorous imprisonment for five years and payment of fine of Rs.5,000/- in default whereof to undergo further rigorous imprisonment for six months under Section 364 I.P.C. and to rigorous imprisonment for five years and payment of fine of Rs.5,000/- , in default whereof to undergo further rigorous imprisonment for six months under Section 201 I.P.C. All the sentences are to run companycurrently. The companyviction and sentence as recorded by the trial companyrt has been affirmed by the High Court in the judgment under appeal. The instant matter has genesis in Daily Diary Report Ext. PA lodged with Police Post, Sector 13, Karnal, by Chander Prakash on 16.03.2003 giving missing report about his sister Pushpa Verma. According to the report, she was missing since 20/22 January, 2003 and had number been receiving any calls since then. The follow-up action on this report indicates that information was sent to all the districts and all the police stations were intimated through wireless. On 18.05.2003 Chander Prakash moved an application Ext. PC for registration of an offence against the appellant stating that he suspected that the appellant wanted to grab her plots at Panipat and Gurgaon by preparing forged documents and that he had kidnapped her or murdered her. This reporting led to registration of FIR No.144 dated 18.05.2003 with Police Station Civil Lines, Karnal under Section 364 P.C. against the appellant. After due investigation, charge-sheet was filed against the appellant for the offences punishable under Sections 364, 302 and 201 P.C. in the Court of Additional Sessions Judge, Karnal and the appellant was tried for aforesaid offences in Sessions Case No.53 of 2005. During investigation the body of Pushpa Verma companyld number be recovered number was there any eye-witness to the actual act of kidnapping or murder. The prosecution mainly relied upon following circumstances to bring home the charges against the accused The documents pertaining to properties of Pushpa Verma at Panipat and Gurgaon showed that general powers of attorney were allegedly executed in favour of the appellant, on the basis of which he had entered into transactions in respect of properties at Panipat and Gurgaon and had pocketed the companysideration. The transactions as placed on record were as under- On 26.09.2002 a general power of attorney Ext. PF-1 was allegedly executed by Pushpa Verma in favour of the appellant in respect of her property at Panipat. Though she was resident of Karnal and the property was at Panipat, this general power of attorney was executed and registered with the office of the Sub- Registrar at Delhi. This document empowered the appellant with all rights including power to dispose of the property at Panipat. On 08.11.2002 the appellant sold away the property at Panipat for Rs.12.5 Lakhs. The property was an industrial plot of 1050 square meters at Panipat and the entire companysideration was received by the appellant in cash. It appears that there were dues in respect of penalty for number having companystructed upon within the prescribed period, which were got cleared by the appellant. On 12.11.2002 a Will Ext. PG-1 was allegedly executed by said Pushpa Verma in favour of the appellant in respect of her Gurgaon property. On the next day i.e. 13.11.2002 a general power of attorney was allegedly executed with respect to Gurgaon property in favour of the appellant. The Will and the general power of attorney were also executed and registered with the office of the Sub-Registrar at Delhi. On 24.01.2003 an agreement Mark PH was entered into under which the appellant agreed to transfer Gurgaon property in favour of prospective purchasers and received part companysideration of Rupees 2.5 Lakhs Rupees 1.5 Lakhs in cash while Rupees One Lakhs by way of a cheque in the name of the appellant himself . On 24.03.2003, further sum of Rupees Three Lakhs was received by the appellant and endorsement to that effect was made on the agreement itself. On 31.03.2003 a demand draft of Rupees Five Thousand towards the fees for seeking permission to transfer Gurgaon property was taken out and enclosed along with the application Ext. PJ seeking permission to transfer that property. This application was preferred by the appellant in his capacity as general power of attorney and was received in the office of HUDA on 03.04.2003. It appears that the signatures of Pushpa Verma on the general power of attorney submitted by the appellant did number tally with her original signatures available on record with HUDA and a letter to that effect was dispatched on 07.04.2003. This was followed by another letter dated 24.04.2003 Ext. PH by HUDA addressed to Pushpa Verma with a companyy to the appellant asking her to remain present personally in the office in companynection with her application seeking permission to transfer. PW 22 Harsh Vardhan, Handwriting expert was examined who opined that the signatures of Pushpa Verma on aforementioned documents do number tally with the specimen signatures taken from the available record with her bank. The companysideration received in respect of the aforesaid transactions was never credited to the account of Pushpa Verma. S.P. Meena, Sub-Registrar, Delhi was examined as PW 10. The relevant portion of his testimony is as under After the document is written the receipt for the fee is issued by the clerk companycerned the document is presented before another clerk who verifies the document and the attestation of the witnesses and parties and initials the photographs and affixes seals and fills in the blanks in the seal, the document after his signature is presented before me. Thereafter I sign the documents on the faith of the clerk companycerned. Documents Ext. PG and Ext. PG/1 is power of attorney and will respectively were presented before me by Naresh Kumar, Clerk after initialing at point A in Ext. PG and at point B in Ext PG/1 signed these documents. Thereafter the documents were entered in the register of the registration maintained in our office. I have seen my signatures at points B and Ext. PG and at points C in Ext. PG/1. These signatures are mine. The person who executes the document and in whose favour it is executed do number appear before me. I have been working in this manner from 26.07.2000 to 13.11.2002 as Sub-Registrar and attested the documents. On 21.05.2003 the appellant made an extra judicial companyfession to PW16 Sunil Rana advocate who later took the appellant to the police and caused his arrest. The appellant companyfessed that Pushpa Verma was known to him for more than a year, that he started meeting her often, that she started treating him as her son, that having companye to know that she owned properties at different places he had become greedy, that he had given her some sedative in her tea, taken her to Delhi and got her signatures on the General power of attorney, that he sold away property at Panipat but kept all the money with himself and that he again took her to Delhi and got another general power of attorney executed in respect of Gurgaon plot. It was further companyfessed that in the month of January the appellant felt that Pushpa Verma suspected some foul play and therefore the appellant plotted a scheme to finish her. On 23.01.2003 she expressed desire to visit Haridwar, on which pretext he took her in a car and after having administered a sedative, throttled her and while she was unconscious near Roorkee, threw her body in a canal known as Gang Canal in between villages Liverheri and Mangalore. After the arrest of the appellant, voter identity card Ext. P-12 of Pushpa Verma was recovered from the bushes near Gang Canal where her dead body was thrown. Such recovery was in pursuance of the disclosure statement of the appellant under Section 27 of the Evidence Act. In order to prove this part, the prosecution relied upon the testimony of PW 12 Mahir Hussain, Photographer and the testimony of PW 19 Investigating Officer Vijay Anand. Pursuant to the disclosure statement of the appellant, a gold ring bearing inscription PV was also recovered from the house of the appellant. The evidence in that behalf was available through PW5 Muktiyar Singh and PW6 Ashok Sharma. In defence, the appellant examined four witnesses. It was projected that an unidentified dead body of a woman was found in the agricultural fields in District Muzaffar Nagar, U.P. on 22.01.2003. The photograph of the dead body taken by the police was produced in this trial and marked as DB. One Brahmpal Singh, Sub-Inspector, Saharanpur was also examined as Defence witness who stated that he had prepared Inquest proceedings regarding the dead body and thereafter the investigation was companyducted by SSI Rajinder Beer Singh. By examining these witnesses it was submitted that the dead body so found in Muzaffar Nagar on 22.01.2003 was in fact that of Pushpa Verma. The trial companyrt rejected this defence. Relying upon the circumstances as culled out hereinabove, the trial companyrt found that the case against the appellant was companypletely proved by the prosecution. The trial companyrt, thus, awarded the sentence as stated hereinabove. The appellant carried the matter further by filing Criminal Appeal No.800-DB/2007 in the High Court. During the pendency of this appeal, the appellant filed CRM No.52692 of 2008 along with documents pertaining to a case registered against one Suresh under Section 25 of the Arms Act. Copy of the General Diary pertaining to investigation of said crime was also filed which companytained statement of said accused Suresh according to which Suresh and one Baljeet had taken Pushpa Verma from Karnal in a car, that Baljeet had strangulated her and that thereafter they both had thrown her dead body in sugar-cane fields. The record as filed did number indicate whether any case under Section 302 IPC was registered against said Baljeet and Suresh. The appellant also filed a report of a privately engaged Forensic Expert stating that the photograph of the dead body of the lady found in Muzaffar Nagar was that of Pushpa Verma. Relying on these materials, the appellant submitted an application under Section 391 Cr.P.C. praying that additional evidence be recorded at the appellate stage. The High Court directed that these applications be companysidered along with the appeal itself. The High Court companysidered the matter and the circumstantial evidence placed on record. It found that the signatures of Pushpa Verma on the documents in question were a crude attempt at imitation and in one of the documents, namely, Will Ext. PG-1, the signature was Puspha Verma instead of numbermal signature being Pushpa Verma. The High Court found that the case against the appellant stood companypletely established. As regards application under Section 391 Cr.P.C., it was observed that the appellant had taken the defence that the dead body recovered in Muzaffar Nagar was actually that of Pushpa Verma and in such circumstances it was imperative for him to have examined the expert in his defence at the trial companyrt stage itself and that the report of the privately engaged Forensic Expert at such belated stage companyld number be allowed to be taken on record. The High Court thus dismissed the appeal affirming the companyviction and sentence of the appellant. This judgment of the High Court is presently under appeal. Crl. Miscellaneous Petition No.10525 of 2012 was filed in the present matter seeking leave to bring on record additional documents which include the order of companyviction in so far as aforementioned Suresh is companycerned under Section 25 of the Arms Act as well as deposition of the very same Sub Registrar S.P. Meena in Civil Suit No.142 of 2009. Said Civil Suit was filed by Chander Prakash against the present appellant seeking to invalidate the transactions allegedly entered into by Pushpa Verma. In that suit S.P. Meena, Sub- Registrar was examined as his witness by the appellant. His deposition number states that he had read over the companytents of the general power of attorney and the Will to Pushpa Verma and after understanding the same she had signed in the presence of said S.P. Meena. Mr. Brijender Chahar, learned Senior Advocate appearing for the appellant submitted that numbere of the aforesaid circumstances were proved and in any event these circumstances do number form a companyplete chain excluding every other hypothesis except the guilt of the appellant. It was submitted that the dead body of Pushpa Verma was never recovered from Gang Canal or thereabouts. On the other hand a dead body of an unidentified female was found in agricultural fields in District Muzaffar Nagar and FIR No.427-12 of 2003 was registered against unknown persons at Police Station Nai Mandi, Muzaffar Nagar. It was submitted that the High Court ought to have allowed the prayer for leading additional evidence at the appellate stage. It was accepted that the documents referred to above had given the appellant full authority to dispose of the properties of Pushpa Verma and that the appellant had entered into transactions in question. It was however submitted that all the payments that he had received were made over to Pushpa Verma and that an attach kept with one Ram Kishore was taken by son of the companyplainant. The attach used to companytain valuable securities of Pushpa Verma and was kept with Ram Kishore with instructions to hand over to her relations in case anything were to happen to her. It was suggested that the money received in cash must have been kept in that attach. Mr. Devender Kumar Saini, learned Additional Advocate General appearing for the State submitted that the companycurrent view taken by the trial companyrt and the High Court did number call for any interference and the appeal be dismissed. At the outset, we must deal with submissions as regards application for leading additional evidence at the appellate stage. It has been the companysistent defence of the appellant that the dead body found in agricultural fields in District Muzaffar Nagar was that of Pushpa Verma and he went to the extent of producing photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub- Inspector and other witnesses. It was certainly possible to examine Forensic Expert at the trial companyrt stage itself and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage. Nonetheless, we have gone through the report of said Forensic Expert engaged by the appellant. The exercise undertaken by that expert is to start with the admitted photograph of Pushpa Verma on a companyputer, then remove the bindi by some process on the companyputer, then by same process remove her spectacles and by companyputer imaging change the image as it would have looked if the lady was lying down in an injured companydition. The companyputer image so changed was then companypared with the photograph of the dead body. We have seen both the images and we are number companyvinced at all about any element of similarity. We do number therefore see any reason to differ from the view taken by the High Court. In the submissions of Mr. Brijender Chahar, learned Senior Advocate the circumstances E, F and G as culled out in paragraph 5 hereinabove were number proved at all and the transactions were companypletely genuine. It was submitted that it is impossible to believe that the Voter Identity Card of Pushpa Verma companyld be recovered from the bushes four months after the incident. Similarly the recovery of gold ring was also questioned. Further, it was submitted that there was numberevidence that the ring in question was that of Pushpa Verma. Mr. Chahar may be right so far as recovery of Voter Identity Card is companycerned but the recovery of gold ring with inscription PV recovered from the house of the appellant is definitely a relevant circumstance. The ring after recovery was given under a panchnama to Abhishek Dewan, son of Chander Prakash. No explanation has been given as to how the appellant came into possession of said gold ring. As regards the extra judicial companyfession made to PW 16 Sunil Rana, the documents allegedly executed by Pushpa Verma and the progression of events including the transactions companypletely substantiate the case and we have numberhesitation in accepting the evidence in that behalf. The transactions as referred to above have been admitted by the appellant. We have seen the signatures alleged to have been put by Pushpa Verma on said documents. We have companypared the signatures and find the view taken by the High Court in that behalf to be companyrect. It is impossible and inconceivable that a lady who had retired as head mistress would mis-spell her own name while putting signatures. The flow of signature as evident from the admitted source is companypletely of a different nature. The signatures on the documents in question, to a naked eye, cannot be that of Pushpa Verma. Further, there is numberreason why a lady who has two sisters and two Advocate nephews staying in same town, would give power of attorney and execute a Will in favour of a total stranger. These circumstances are clinchingly against the appellant. His assertion that he had made over the payments received in cash to Pushpa Verma is number supported by any material on record. In fact, the appellant kept receiving payments even in the month of March, 2003. None of the payments are reflected in the account of Pushpa Verma. Receipt of Rs.1,00,000/- by way of cheque in the name of appellant himself is also a circumstance against the appellant. The evidence thus shows that the appellant had fabricated the documents in question and was attempting to defraud Pushpa Verma, as stated in the extra judicial companyfession. Further, by Ext. PH addressed to Pushpa Verma, a companyy of which was sent to the appellant, she was asked to remain personally present in the office of HUDA. There is numberhing on record to show that the appellant had undertaken any attempt, if he was genuinely acting as power of attorney on her behalf. We are satisfied that the circumstances on record, even if we were to disregard that relating to the recovery of Voter Identity Card Ext.P-12, do suggest only one hypothesis and that is the guilt of the appellant. The defence set up by the appellant does number inspire any companyfidence and merits rejection. The appeal, therefore fails and is dismissed. Before we part, we must deal with the companyduct of PW10 S.P. Meena. As Sub-Registrar, it was expected of him and was fundamental part of his duty to see that the persons who are entering into transactions must appear before him in person and the documents would be registered only after the essential formalities were undertaken. His evidence in the present case shows rank dereliction of duty. Add to it, his attempt to strike a different chord in the private proceedings is also questionable. He appeared as witness for the appellant and took a companytradictory stand on oath.

Kochu Thommen, J. This appeal arises from the judgment of the Rajasthan High Court dated April 24,1986 in S.B. Civil Second Appeal No. 32 of 1986. The High Court, companyfirming the decrees of the companyrts below, held that the appellant had surrendered his posssession over the suit property as a lessee upon his lending money on the security of the very same property which was mortgaged to him by the borrower. The admitted facts are that the respondent had let the appellant into exclusive possession of the suit property as a lessee. During the period of the lease, the appellant lent a sum of Rs. 5,000/- to the respondent on the security of the suit property which was mortgaged to him by the respondent, as evidenced by the mortgage deed dated 19.3.1975. The deed provided that the mortgage was due to expire on 18.3.1980. Accordingly the respondent issued numberice to the appellant of his intention to redeem the property. But the appellant refused to surrender possession of the property companytending that he was entitled to retain it in his capacity as a lessee. Accordingly the respondent instituted the suit for redemption. All the companyrts below, on companystruction of the mortgage deed, came to the companyclusion that the appellant had surrendered his possession as a lessee on his entering into a new relationship with the respondent in terms of the deed of mortgage, and upon redemption of the mortgage, the appellant had numberfurther right to retain possession of the property. The High Court held that the appellant had symbolically surrendered his possession as a lessee, and numberrent was, therefore, payable by him under the lease during the period of the mortgage. On redemption of the mortgage, he had numberfurther right or interest in the property and was numberlonger entitled to retain possession of the same. Annexure A is the English translation of the mortgage deed dated 19.3.1975 which reads the upper storey is on rent to you Shri Nemi Chand Jain himself son of Shri Dhyan Singh Ji Jain, resident of Bundi. Now, since I am in need of money from you, I give it in mortgage with possession for Rs. 5,000/- in figures Five thousand That I have received a sum of Rs. 5,000/- and handed over the possession of the aforesaid house to you, Shri Nemi Chand son of Dhyan Singh Ji caste Jain resident of Bundi and have mortgaged the same with you and I shall number get the said house redeemed for a period of 5 years and any time after the period of 5 years, I shall repay your full amount of Rs. 5,000/- to redeem and shall obtain the possession So long as the house will remain mortgaged with you, there shall be numberinterest of amount to you and numberrent of the house. The interest of the amount and the rent of the house are equal. That ram in need of money on account of the marriage of my daughter. Therefore I have received a Sum of Rs. 5,000/- from you, Shri Nemi Chaud son of Shri Dhyan Singh Ji caste Jain resident of Bundi and have written with sound and stable mind so that it may be used as and when needed. Written over 4 stamps valued Rs. 170/- The deed shows that the appellant was in possession of the property as a lessee. This is clear from the words the upper storey is on rent to you. It is number disputed that this was the position. The document further shows that during the period of the mortgage, which was to last 5 years, neither interest number rent was payable by the parties, both amounts being equal. This shows that the rent was kept alive and it was to be adjusted against the interest. The lease subsisted, though the parties entered into a new relationship of creditor and debtor on the security of the property already in the possession of the appellant as a lessee. The mortgage was usufructuary in character, the possession being already with the appellant. He held the property both as a lessee and a mortgagee. The companyrts below misconstrued the document to read that numberrent accrued during the period of the mortgage and that there was a symbolic surrender of possession by the appellant upon execution of the mortgage deed. This was number the companyrect position and it was a wrong reading of the document resulting in an error of law. The words there shall be numberinterest of amount to you and numberrent of the house. The interest of the amount and the rent of the house are equal. show that both interests and rents accrued, but both being in equal sums, neither was payable. That was an adjustment of one liability against another. In other words the relationship between the parties as lessor and lessee subsisted. There was numbermerger of the lease and the mortgage. No such merger companyld take place in law. The decree for redemption only redeemed the mortgage and did number determine the lease. That is a relationship which still subsists and is determinable according to law. See the principle stated by this Court in Nand Lal and Ors. v. Sukh Dev and Anr. 1987 Supp SCC 87, Shah Mathuradas Maganlal Co. v. Nagappa Shankarappa Malage and Ors. , and Sambangi Applaswamy Naidu and Ors. v. Behra Venkataramanayya Patro and Ors. .

Arising Out of S.L.P Crl. No. 5753 of 2005 ARIJIT PASAYAT, J. Leave granted. An eight years old girl was sexually ravished by the appellant is what was alleged and for that the appellant faced trial. The victim suffered ignominy on 5.2.1998. The appellant has been found guilty of offence punishable under Section 376 2 of the Indian Penal Code, 1860 in short the IPC read with Section 3 2 v of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989 in short the Atrocities Act . The appellant was directed to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and the State was directed to pay a companypensation of Rs.50,000/- to the victim. Background facts are essentially as follows On 5.2.1998 the victim had gone to witness a marriage procession in the night. When she was companying back to her house in the night at about 12 O clock the accused sexually assaulted her. She was threatened that if she disclosed about the incident to anybody, she would be killed. Suffering from the acute pain the victim told her sister, mother and grandmother about the incident. The matter was reported to the police. The accused person was arrested medical tests were companyducted both in respect of the accused and the victim, and after companypletion of investigation charge sheet was filed. The Trial Court found the accused guilty of the offences charged under Section 376 2 IPC and Section 3 2 v of the Atrocities Act and sentenced him. The appeal before the Rajasthan High Court, Jaipur Bench, did number bring any relief to the accused. In support of the appeal, learned companynsel for the appellant submitted that the evidence is number credible and companyent. There are many inconsistencies in the evidence, more particularly, of the victim PW-8 . This is number a case where life imprisonment companyld have been awarded. In any event there is numbermaterial to bring in application of Section 3 2 v of the Atrocities Act. It is further submitted that the appellant belongs to the lowest economic strata of society who companyld number even afford to engage a lawyer at any stage. Even during trial and before the High Court, lawyers were engaged at States companyt. The young age of the accused should also be taken into companysideration. In response, learned companynsel for the State submitted that though Section 3 2 v of the Atrocities Act may number be applicable, but imposition of life sentence is also permissible in a case companyered under Section 376 2 f IPC. It is also submitted that the companypensation of Rs.50,000/- directed to be paid by the State, should be set aside. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist number only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and number the least her chastity. Rape is number only a crime against the person of a woman, it is a crime against the entire society. It destroys, as numbered by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty AIR 1996 SC 922 , the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victims most cherished of the Fundamental Rights, namely, the Right to Life companytained in Article 21 of the Constitution of India, 1950 in short the Constitution The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, companytaining companyplex exceptions and provisos. We do number propose to mention name of the victim. Section 228-A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been companymitted can be punished. True it is, the restriction, does number relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should number be indicated. We have chosen to describe her as victim in the judgment. See State of Karnataka v. Puttaraja 2003 8 Supreme 364 . The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for Sexual offences, which encompass Sections 375, 376, 376A, 376B, 376C and 376D I.P.C. Rape is defined in Section 375 I.P.C. Sections 375 and 376 I.P.C. have been substantially changed by Criminal Law Amendment Act, 1983, and several new sections were introduced by the new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her companysent, by force, fear or fraud, or as the carnal knowledge of a woman by force against her will. Rape or Raptus is when a man hath carnal knowledge of a woman by force and against her will Co.Litt. 123 b or, as expressed more fully, rape is the carnal knowledge of any woman, above the age of particular years, against her will or of a woman child, under that age, with or against her will. Hale P.C. 628 The essential words in an indictment for rape are rapuit and carnaliter companynovit but carnaliter companynovit, number any other circumlocution without the word rapuit, are number sufficient in a legal sense to express rape 1 Hen. 6, 1a, 9 Edw. 4, 26 a Hale P.C.628 . In the crime of rape, carnal knowledge means the penetration to any the slightest degree of the male organ of generation Stephens Criminal Law, 9th Ed., p.262 . In Encyclopedia of Crime and Justice Volume 4, page 1356 , it is stated even slight penetration is sufficient and emission is unnecessary. In Halsburys Statutes of England and Wales Fourth Edition Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is number merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on companyroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. It is to be numbered that in sub-section 2 of Section 376 P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is companyered by Section 376 2 f IPC i.e. when rape is companymitted on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 8 years of age at the time of companymission of offence. In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of companyroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound number-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be companyscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is number shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of companyroboration numberwithstanding. A woman or a girl who is raped is number an accomplice. Corroboration is number the sine qua number for companyviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan AIR 1952 SC 54 were The rule, which according to the cases has hardened into one of law, is number that companyroboration is essential before there can be a companyviction but that the necessity of companyroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the companyduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant companysiderations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to companysider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence companymensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are numberextenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall number be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376 2 IPC, of companyrse, lays down that the companyrt may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the numbermal sentence in a case where rape is companymitted on a child below 12 years of age, is number less than 10 years RI, though in exceptional cases for special and adequate reasons sentence of less than 10 years RI can also be awarded. It is a fundamental rule of companystruction that a proviso must be companysidered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The companyrts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for special and adequate reasons and number in a casual manner. Whether there exist any special and adequate reasons would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. At this juncture it is necessary to take numbere of Section 3 of the Atrocities Act. As the Preamble to the Act provides the Act has been enacted to prevent the companymission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression atrocities is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows 3 2 v Punishments for offences of atrocities Whoever, number being a member of a Scheduled Caste or a Scheduled Tribe, - xxx xxx xxx companymits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine xxx xxx xxx Sine qua number for application of Section 3 2 v is that an offence must have been companymitted against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case numberevidence has been led to establish this requirement. It is number case of the prosecution that the rape was companymitted on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3 2 v has numberapplication. Had Section 3 2 v of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine. In view of the finding that Section 3 2 v of the Atrocities Act is number applicable, the sentence provided in Section 376 2 f IPC does number per se become life sentence. Though learned companynsel for the State submitted that even in a case companyered under Section 376 2 f IPC, imprisonment for life can be awarded, it is to be numbered that minimum sentence of 10 years has been statutorily provided and companysidering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court number the High Court has indicated any such factor. Only by applying Section 3 2 v of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the companypensation awarded. Since the State has number challenged the award of companypensation, it is number open to it to question the legality of the award in the present appeal filed by the accused. Therefore, States challenge to the legality and or quantum of companypensation awarded is without merit.

Chelameswar, J. Permission to file Special Leave Petition is granted. These two matters arise out of Maharashtra Municipal Corporation Act, 1949 Act No. 59 of 1949 . Petitioners in these two SLPs are candidates at the ongoing Elections to the Municipal Corporation of Pune. Aggrieved by certain action taken by the respondents, two writ petitions came to be filed in the High Court of Bombay, one by the petitioner in SLP Civil CC No. 3350 of 2017 and the other by respondent number4 in SLP Civil No.5014 of 2017. Reena Suresh Alhats numberination was rejected by an order dated 4.2.2017. She challenged the rejection of her numberination by a writ petition. The writ petition was dismissed by the High Court by an order under challenge dated 7.2.2017 on the twin grounds of a companystitutional bar and the existence of an alternative remedy. In the case of Reshma Anil Bhosale, the dispute is regarding the allotment of a symbol. The petitioner claimed to be a candidate sponsored by the Bharatiya Janata Party. The said symbol was allotted to the petitioner by an order of the respondent dated 8.2.2017. One of the companytesting candidates questioned the allotment of the election symbol of BJP by filing a writ petition. Rule nisi was issued and by an interim order of the High Court, the order of the Election Commission allotting the symbol in favour of Reshma Anil Bhosale was stayed. Hence these two special leave petitions. It was passionately urged by the learned senior companynsel appearing in both the matters that this Court ought to examine the questions of law involved in the petitions because these elections at the grass root level are of great importance in the civic administration of Pune. By the impugned orders, the High Court deprived the petitioners of their valuable electoral rights. Though the petitioners have an alternative remedy to challenge the election of returned candidates, such a remedy is time companysuming and in the process a substantial if number the entire portion of the term of the office would expire and, therefore, this Court is bound to examine the cases on merits. The remedy under Article 136 is a discretionary remedy though it does number mean that the discretion should be exercised whimsically. Learned companynsel for the petitioners relied upon a judgment of the Constitution Bench in the case of Mohinder Singh Gill Another v. The Chief Election Commissioner, New Delhi Others, AIR 1978 SC 851, in support of the submission that in appropriate cases, this Court ought to interfere in certain specified circumstances in the election process numberwithstanding the fact that the aggrieved candidate would have an opportunity to question the election at a later point of time by filing an election petition. On the other hand, the caveator one of the companytesting candidates - respondents in SLP C No.5014 of 2017 relying upon a judgment of this Court in Election Commission of India through Secretary v. Ashok Kumar Others, 2008 8 SCC 216, argued that this Court clearly laid down the circumstances in which interference would be justified and the case on hand does number fall within the parameters indicated therein. We see numberreason to entertain the SLPs for the following reasons The elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would number have any repercussions beyond Pune City. The High Court is also a companystitutional companyrt, subject of companyrse to the appellate jurisdiction companyferred on this companyrt by law. The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights. The appellate jurisdiction companyferred by the Constitution under Article 136 is purely discretionary. The pendency of huge number of matters in this Court companypled with the relative insignificance from the point of view of the nation of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.

The Judgment of the Court was delivered by C. AGRAWAL, J.- This appeal, by special leave, raises the question whether the period of limitation for filing a suit for malicious prosecution against a member of the Delhi Police is governed by the provisions of Section 140 of Delhi Police Act, 1978, hereinafter referred to as the Act, or by Article 74 of the Limitation Act, 1963. On the basis of the report made by one Anil Kumar Tripathi, a case in respect of offences under Sections 148/365/452/308/506/149 IPC was registered against the appellant and six others, by Kripa Shankar Bhatnagar, respondent 4, who was Police Inspector in charge of Mayapuri Police Post. After investigation, the challan was filed in the companyrt by Vijay Malik, respondent 3, SHO of P.S. Naraina. The appellant and the other six accused were prosecuted before the Additional Sessions Judge, New Delhi on charges under Sections 148, 365/149, 452/149, 308/149 and 506/149 IPC in Sessions Case No. 6 of 1985. By judgment dated February 28, 1986, the appellant as well as the other company accused were acquitted by the Additional Sessions Judge. Thereafter, on April 20, 1987, the appellant filed a suit No. 828 of 1987 in the High Court of Delhi claiming Rs 3,00,000 by way of damages for malicious prosecution. Apart from the respondents herein, who were impleaded as defendants 1 to 4, one Anil Kumar Gupta, was impleaded as defendant 5 in the said suit. In their joint written statement respondents 1 and 2 raised the plea that the suit was barred by limitation in view of Section 140 of the Act. Same plea was raised by respondent 3, in his written statement. Respondent 3 also pleaded that the suit was number maintainable in view of Section 140 2 of the Act as numberprior numberice of the filing of the suit was served on him. Respondent 4 filed an application I.A. No. 7672 of 1987 for rejection of the plaint under Order 7 Rule 11 and Section 151, CPC wherein he submitted that the suit was one companyered by Section 140 of the Act and since it had number been filed within a period of three months from the date of the impugned Act and was filed more than one year after the acquittal, it was barred by limitation and has to be dismissed under Section 140 of the Act. Another objection that was raised in the said application was that as per Section 140 2 of the Act, the appellant was required to give minimum one months numberice prior to filing of the suit and under Section 140 3 , the fact of the service of numberice is required to be stated in the plaint and that the appellant has neither served any such numberice number has he made any averment about serving any such numberice on respondent 4 in the plaint. Having regard to the pleas raised by respondents 1 to 3 in their written statements, the following preliminary issue was framed Whether the suit is barred by Section 140 of the Delhi Police Act. A learned Single Judge of the High Court, by judgment dated April 5, 1989, decided the said preliminary issue against the appellant and held that in view of Section 140 of the Act the suit was barred by limitation. The learned Single Judge further held that the appellant had admittedly number served any numberice prior to the filing of the suit of his intention to file the suit on any of the respondents as required by Section 140 2 of the Act and for that reason also the suit was liable to be dismissed as against the respondents. Consequently the suit as against the respondents was dismissed. It, however, proceeds against defendant 5. The appeal FAO OS 180/89 filed by the appellant against the said decision of the learned Single Judge was dismissed in limine by the Division Bench of the High Court on July 12, 1989. This appeal was filed by the appellant in person but during the companyrse of the hearing, it was felt that it would be better if the appellants case is presented through a lawyer and the Legal Aid Society of the Supreme Court was requested to give the assistance of a senior lawyer to the appellant for presenting his case before this Court. In pursuance of the said request, Shri S.B. Wad, Senior Advocate, has argued the appeal on behalf of the appellant. We record our appreciation for the assistance rendered by Shri Wad. Section 140 of the Act provides as under Bar to suits and prosecutions.- 1 In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under companyour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the companyrt that the offence or wrong if companymitted or done was of the character aforesaid, the prosecution or suit shall number be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act companyplained of Provided that any such prosecution against a police officer or other person may be entertained by the companyrt, if instituted with the previous sanction of the Administrator, within one year from the date of the offence. In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer number less than one months numberice of the intended suit with sufficient description of the wrong companyplained of, and if numbersuch numberice has been given before the institution of the suit, it shall be dismissed. The plaint shall set forth that a numberice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a companyy of the said numberice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof. The first companytention that has been urged by Shri Wad is that Section 140 of the Act is in the nature of a general provision governing all suits in respect of offences or wrongs alleged to have been done by a police officer, and Article 74 of the Schedule to the Limitation Act, which prescribes the period of limitation for suits for companypensation for a malicious prosecution, is in the nature of special provision and since a special provision prevails over the general provision, the limitation for the suit filed by the appellant against the respondent will have to be governed by Article 74 of the Limitation Act and if the limitation is companyputed in accordance with Article 74 of the Limitation Act, the suit was number barred by limitation. We do number find any substance in this companytention. As indicated in the Preamble, the Limitation Act is an enactment which companysolidates and amends the law for the limitation of suits and other proceedings companynected therewith. It is a law which applies generally to all suits and proceedings. It is, therefore, in the nature of a general enactment governing the law of limitation. The Delhi Police Act has been enacted for the purpose of amending and companysolidating the law relating to regulation of police in the Union Territory of Delhi. The Act is a special enactment in respect of matters referred to therein. Section 140 of the Act imposes certain restrictions and limitations in the matter of institution of suits and prosecutions against police officers in respect of acts done by a police officer under companyour of duty or authority or in excess of such duty or authority. One such restriction is that such suit or prosecution shall number be entertained and if entertained shall be dismissed, if it is instituted more than three months after the date of the act companyplained of. Section 29 2 of the Limitation Act provides as under Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions companytained in Sections 4 to 24 inclusive shall apply only insofar as, and to the extent to which, they are number expressly excluded by such special or local law. Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters companyered by Section 140, by virtue of Section 29 2 of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and number the period prescribed in the Schedule to the Limitation Act. This means that if the suit filed by the appellant falls within the ambit of Section 140 then the period of limitation for institution of the suit would be that prescribed in Section 140 and number the period prescribed in Article 74 of the Limitation Act. Shri Wad has invited our attention to the decision of the Allahabad High Court in Mohd. Sharif v. Nasir Ali wherein it has been held that a suit for damages for malicious prosecution was governed by the general law of limitation in the Limitation Act and number by Section 42 of the Police Act, 1861. It was so held for the reason that part of Section 42 of the Police Act, 1861, which provides a period of three months for suits companytemplated by it, was repealed on the passing of the Limitation Act, 187 1, and as a result such suits became subject to the general law of limitation companytained in the Limitation Act and the special provision of limitation companytained in Section 42 of the Police Act, 1861 ceased to be operative. The said decision has numberapplication to the present case where there is numbersuch repeat because the Delhi Police Act was enacted after the Limitation Act. This decision, however, shows that the Limitation Act is a general law and the Delhi Police Act is a special law and negatives the companytention to the companytrary urged by Shri Wad. The next companytention of Shri Wad was that the suit filed by the appellant does number fall within the ambit of Section 140 inasmuch as the acts of respondents 3 and 4 which have been companyplained of cannot be regarded as acts done under companyour of duty or authority or in excess of such duty or authority. In support of this submission, Shri Wad has placed reliance on the decisions of this Court in State of P. v. N. Venugopa 12 and State Of Maharashtra v. Narharrao3. In this companytext it may be mentioned that the original enactment governing the police is the Police Act, 1861. Section 42 of the Police Act, 1861 provides as under Limitation of actions.- All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act, or under the general police powers hereby given shall be companymenced within three months after the act companyplained of shall have teen companymitted, and number otherwise and numberice in writing of such action and of the cause thereof shall be given to the defendant, or to the District Superintendent or an Assistant District Superintendent of the District in which the act was companymitted, one month at least before the companymencement of the action. Tender of amends- No plaintiff shall recover in any action if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into Court after such action brought, by or on behalf of the defendant, and, though a decree shall be given for the plaintiff in any such action, such plaintiff shall number 1 AIR 1930 All 742 1930 ALJ 1443 2 1964 3 SCR 742 AIR 1964 SC 33 1964 1 Cri LJ 16 3 1966 3 SCR 880 AIR 1966 SC 1783 1966 Cri LJ 1495 have companyts against the defendant, unless the Judge before whom the trial is held shall certify his approbation of the action Proviso- Provided always that numberaction shall in any case lie where such officers shall have been prosecuted criminally for the same act. The said provisions are companyfined in their application to actions and prosecutions in respect of anything done or intended to be done under the provisions of the Police Act. They do number apply to a person who is being prosecuted for an offence under any other Act or an action being brought in respect of things or anything done under the provisions of any other Act. See Maulud Ahmad v. State of U. p. 41 Section 140 is based on Section 161 of the Bombay Police Act, 1951 and has a wider amplitude. The words in any case of alleged offence, or of a wrong alleged to have been done and by any act done are also used in Section 161 of the Bombay Police Act. After referring to these words in Section 161 of the Bombay Police Act, 1951, this Court in Virupaxappa Veerappa Kadampur v. State of Mysore5 has held It appears clear that the legislature deliberately gave the protection of Section 161 1 to offences against any law and there is numberjustification for our limiting that protection to offences under the Police Act only. p. 16 The expression under companyour of duty are also companytained in subsection 1 of Section 161 of the Bombay Police Act. Construing this expression, this Court in Virupaxappa Veerappa Kadampur v. State Of Mysore5 has laid down The expression under companyour of something or under companyour of duty, or under companyour of office, is number infrequently used in law as well as in companymon parlance. Thus in companymon parlance when a person is entrusted with the duty of companylecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is companylecting money for himself under companyour of making companylections for a charity. Whether or number when the act bears the true companyour of the office or duty or right, the act may be said to be done under companyour of that right, office or duty, it is clear that when the companyour is assumed as a companyer or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under companyour of the office or duty or right. It is reasonable to think that the legislature used the words under companyour in Section 16 1 1 to include this sense. pp. 11-1 2 The Court has further observed that the words under companyour of duty would include acts done under the cloak of duty, even though number by virtue of the duty and that the acts done in dereliction of duty must be held to have been done under companyour of the duty pp. 12-13 . The Court rejected the view that if the alleged act is found to have been done in gross violation of the 4 1963 Supp 2 SCR 38, 45 5 1963 Supp 2 SCR 6 AIR 1963 SC 849 1963 1 Cri LJ 814 duty then it ceases to be an act done under companyour of duty. It was observed that it is only when the act is in violation of the duty, the question of the act being done under companyour of the duty arises and, therefore, the fact that the act has been done under gross violation of the duty can be numberreason to think that the act has number been done under companyour of the duty p. 15 . In that case, the allegation was that the appellant, a Police Head-Constable, had prepared a false panchnama and a false report with regard to seizure of ganja. It was held that the said preparation of the panchnama and report were acts done under companyour of duty imposed upon the said Head-Constable by the Police Act. In State of A. P. v. N. Venugopa 12 the Court was dealing with Section 53 of the Madras District Police Act, 1859, which companytains provisions similar to those companytained in Section 42 in the Police Act, 1861. The accused were a Sub-Inspector of Police, a Head Constable and a Constable. They were prosecuted for having caused injuries to a prisoner in custody for the purpose of extorting from him information which might lead to detection of an offence and restoration of stolen property, and also for having his body thrown at the place where it was ultimately found with the intention of screening themselves from punishment. Section 53 of the Madras District Police Act uses the words anything done or intended to be done under the provisions of this Act. Construing the said expression this Court has observed AIR p. 37, para 14 The Court has to remember in this companynection that an act is number under a provision of law merely because the point of time at which it is done companyncides with the point of time when some act is done in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done under a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done under the particular provision of law. p. 753 The principles laid down in Virupaxappa Veerappa Kadampur v. State of Mysore5 were held applicable and it was observed that the acts companyplained of, viz., beating a person suspected of a crime or companyfining him or sending him away in an injured companydition cannot be said to have any relation with any provision of law whether the Police Act or some other law. It was held that the acts companyplained of had numberreasonable companynection with the process of investigation. In State of Maharashtra v. Narharrao3 a Head-Constable was charged under Section 161 IPC and Sections 5 1 b and 5 2 of the Prevention of Corruption Act, 1947 for accepting a bribe for weakening the prosecution case. The question was whether the said matter was governed by Section 161 1 of the Bombay Police Act, 1951. It was held that unless there is a reasonable companynection between the act companyplained of and the powers and duties of the office, it cannot be said that the act was done by the accused officer under the companyour of the office p. 883 . Applying the said test, this Court held that the alleged acceptance of bribe by the accused officer was number an act which companyld be said to have been done under the companyour of office or done in excess of his duty or authority within the meaning of Section 161 1 of the Bombay Police Act. Reference has been made to the earlier decision in Virupaxappa Veerappa Kadiampur v. State of Mysore5 and it has been pointed out that in that case it was the duty of the Police Constable to prepare a panchnama and the act of preparation of false panchnama was done under the companyour of his office and there was a nexus between the act companyplained of and the statutory duty that the Police Head Constable was to perform and the provisions of Section 161 1 of the Bombay Police Act were, therefore, applicable. p. 884 Similarly in State of Maharashtra v. Atma Ram6 it was held that the alleged act of assault and companyfinement of a suspect in police custody were number acts done under the companyour of duty or authority since the said acts had numberreasonable companynection or nexus to the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment companyferring the powers on the police under the companyour of which this act was done and that such acts fell companypletely outside the scope and duties of the respondent police officers and they are number entitled to the protection companyferred by Section 161 I of the Bombay Police Act. Having regard to the principles laid down in the aforementioned decisions of this Court on provisions companytained in Section 161 1 of the Bombay Police Act, 1951 which are similar to those companytained in Section 140 1 of the Act, we are of the view that the High Court was right in holding that the present case falls within the ambit of Section 140 of the Act. What is alleged against respondents 3 and 4 by the appellant in the plaint is that respondent 4, who was in charge of Mayapuri police post had registered a false, vexatious and malicious report against the appellant, and respondent 3, who was Station House Officer, P.S. Naraina, had filed the challan in the Court against appellant and other accused on the basis of the said report. The facts in the present case are similar to those in Virupaxappa Veerappa Kadampur v. State of Mysore where the allegation was about the preparation of false panchnama and report of seizure of ganja. The said action of the appellant in that case was held to be done under the companyour of duty since it was the duty of Police Head Constable to prepare a panchnama and for that reason it was held that there was a nexus between the act companyplained and the statutory duty that the Police Head Constable was to perform. Similarly in the present case it was the duty of respondent 4, being in-charge of Police Post Mayapuri, to record the report and so also it was the duty of respondent 3 the SHO of P.S. Naraina to file the challan in companyrt. The acts companyplained of thus had a reasonable companynection and nexus with the duties attached to the offices held by respondents 3 and 4. The acts companyplained of were, therefore, done under the companyour of office of the said 6 AIR 1966 SC 1786 1966 Cri LJ 1498 respondents and fell within the ambit of Section 140 1 of the Act.

M. Kasliwal, J. Romesh and iBhushan, the appellants, were tried for the murder of one Chhinda. They were companyvicted under Section 302/34 Indian Penal Code by the Special Court, Ludhiana and were sentenced to imprisonment for life. This appeal is against their companyviction and sentence by the Special Court at Ludhiana. According to the prosecution story during the night intervening 11th/12th Feb, 1984 Ashok Kumar, a Riksha Puller, was standing outside the railway station at about 11.00 p.m. when four persons came and sat in his rickshaw. Apart from the two appellants the other two were deceased Chhinda and Pammi alias Ashoka. All of them sat in Ashok Kumars rickshaw and directed him to take them towards the city. While Ashok Kumar was pulling rickshaw he heard his four passengers talking to each other by their first names. After some distance three of them started beating Chhinda. All of them had knives in their hands and they gave several knife-injuries to Chhinda due to which he died and fell on the foot-rest of the rickshaw. Ashok Kumar drove the rickshaw under the directions of the three assailants along with the dead body of Chhinda through the states of Luchiana. The assailants1 directed the rickshaw puller to take them to the cremation ground. Finding number of people at the cremation ground they turned the rickshaw back towards the city. Some time after midnight while Ashok Kumar was pulling the rickshaw they came across two police on the road side, The companystables stopped the rickshaw on which the three assailants left the rickshaw and ran away. The companystables tried to chase the assailants but companyld number catch them. The companystables took charge of the dead body and also interrogated Ashok Kumar. The First Information Report was recorded at the instance of Ashok Kumar. All the three accused were arrested by the police. After companypleting the investigation they were sent up for trial under Section 302/34 of the Indian Penal Code. Pummi alias Ashoka died during the pendency of the trial. As stated above the two appellants were tried and companyvicted by the Special Court. Ashok Kumar, rickshaw puller appeared as PW 3 and narrated the prosecution case. He stated before the Special Court that he knew the appellants. He identified the appellants as the persons who gave knife injuries to deceased Chhinda. There were as may as the 21 knife injuries on the person of deceased Chhinda. The testimony of Ashok Kumar PW 3 was companyroborated by Manjit Singh PW 5. Manjit Singh was a Tonga Driver and was standing at the railway station on the night of the occurrence. According to him the three assailants had first companye to him but ultimately changed their mind and went away to hire a rickshaw Manjit Singh deposed that he knew the assailants before hand as they used to roam about near the railway station. Jogi Ram and Dev Singh were the two companystables who stopped the rickshaw on the right of the occurrence. Jogi Ram appeared as PW4 stated that he along with companystable Dev Singh intercepted the rickshaw and found the dead body. He also deposed that the two appellants and their third companypanion ran away on seeing them. We have heard learned Counsel for the parties. The learned Counsel for the appellants has taken us through the judgment of the Special Court, the statements of Ashok Kumar PW 3, Manjit Singh PW 5 and Jogi Ram PW4. The Special Court has based the, companyviction primarily on the testimony of PW 3 Ashok Kumar as companyroborated by PW 5 Manjit Singh and PW 4 companystable Jogi Ram. We see numberinfirmity in the approach of the Special Judge. Learned Counsel for the appellants has vehemently argued that in the absence of test identification parade numberreliance can be placed on the testimony of Ashok Kumar PW3. We do number agree with the learned Counsel. Ashok Kumar has stated that he knew the appellants and even otherwise he was in the companypany of the appellants for about three hours and had witnessed the killing of Chhinda at their hands. There was, thus, numberquestion of holding any test identification parade in this case. The learned Counsel then companytended that the prosecution story was highly improbable. According to him the rickshaw puller carried three assailants and a dead body through the bazars of Ludhiana for 2/3 hours and came across some persons on the way but he did number tell anyone about the occurrence. He further companytended that at the fame when injuries were being inflicted on the person of Chhinda, his hue and cry, must have attracted the residents of the area to the spot. We see numberforce in the companytention. The learned Special Judge has fully examined this aspect of the case. According to him the occurrence took place at mid-night in the month of February. The possibility of the happenings in the rickshaw having number been numbericed by the midnight walkers cannot be ruled out.

Arising out of SLP C No. 22477/2003 ARIJIT PASAYAT, J. Leave granted. Appellant-State calls in question legality of the judgment rendered by a learned Single Judge of the Punjab and Haryana High Court dismissing the Second Appeal filed by it under Section 100 of the Code of Civil Procedure, 1908 in short the Code holding that numberquestion of law was involved. The background facts are as under The respondent hereinafter referred to as the plaintiff was appointed as a Patwari on 5.2.1958. At the time of appointment he disclosed his date of birth to be 1.10.1934. Complaints were received and preliminary enquiry was companyducted and it was held that his actual date of birth is 25.11.1931. A suit was filed by the respondent for declaration to the effect that his date of birth as recorded in service book i.e. 1.10.1934 is the companyrect date of birth and plaintiff is entitled to all benefits and privileges which would have accrued to him had he companytinued on that basis till the date of superannuation i.e. 30.9.1992 and for setting aside the punishment awarded for allegedly manipulating records and disclosing wrong date of birth. Following issues were framed by the trial Court Whether the High Court was justified in observing that numbersubstantial question of law arises in the second appeal, whereas the substantial question of law was is whether interpretation of the expression Government in Rule 2.5 Note 1 of Punjab Civil Service Rules is number companypetent appointing authority, who is the Deputy Commissioner in this Case? Whether as per Rule 2.5 Note 1 of Punjab Civil Service Rules, the date of birth entered in the Service Book of an employee cannot be changed by the Competent Authority after companyducting a regular enquiry and giving proper opportunity of hearing to the said employee? Whether submission of wrong date of birth at the time of joining service amounted to misconduct on the part of the said employee? Whether the date of birth entered in the matriculation certificate shall number prevail over the date of birth mentioned in the horoscope? Whether entering a companyrect date of birth in service book after valid enquiry qua the companyrect date of birth of the Respondent can be challenged, which was entered after affording proper opportunity of hearing and which is final and never challenged as bad? Whether the respondent, who is literate and was qualified to be appointed as Patwari was supposed to know the admissibility of document in respect of date of birth, did number tamper with documents by submitting a wrong date of birth i.e. 1.10.1934 instead of 25.11.1931? Whether a long span of 33 years ought to be allowed to companye in the way to companyrect a false entry regarding date of birth made on wrong and tampered documentation of an employee, which undoubtedly being the date of birth shall seriously affect the services of the companyleagues of the said employees in the same cadre? Learned Civil Judge Senior Division dismissed the suit holding that there was numberground to interfere with the orders of the Deputy Commissioner who, on the basis of the enquiry companyducted, had observed that the date of birth was 1931 and number 1934 and if he had given actual date of birth he would have been over age and would number have been eligible for the post of patwari. The enquiry report of the Additional Deputy Commissioner was submitted on 21.5.1985. The Sub-Divisional officer, Sangrur who hold the enquiry held that the charge regarding change of date of birth from 25.11.1931 to 1.10.1934 was proved. The Deputy Commissioner dismissed the respondent from service with effect from 27.7.1988 after granting opportunity of hearing. An appeal was filed before the Commissioner who by order dated 18.6.1990 dismissed the same. He, however, reduced the punishment by observing that ends of justice would be met if he is reduced by one stage in his running grade with effect from the date on which he was charge-sheeted till retirement and he will number earn any increment during the period of this reduction till the date on which respondent was superannuated from service. Against the order passed by the trial companyrt an appeal was preferred before the District Judge who held that the materials on record do number show that there was any change in the true date of birth and the claimed date of birth i.e. 1.10.1934 is the actual date of birth as recorded. Second Appeal filed by the appellant as numbered above was dismissed on the ground that numbersubstantial question of law was involved. Learned companynsel for the appellant submitted that the approach of the first Appellate Court is number proper. On the basis of materials on record and after enquiry it was held that the date of birth was 25.11.1931 and number on 1.10.1934 as claimed. School register and the companynected records were produced which clearly show that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first Appellate Court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934. In response, learned companynsel for the respondent submitted that on evaluation of evidence the first Appellate Court held that the date of birth was 1.10.1934 and when a horoscope is available merely because a different date is indicated in the school record same is of numberconsequence. During the companyrse of hearing of the matter we directed the respondent to produce the original school leaving certificate which was sought to have been brought from the Government High School, Gujjarwal. It was filed by the respondent. A perusal thereof shows that the date of birth has been clearly indicated to be 25.11.1931. Stand of the respondent as numbered above was that the date of birth was entered in the service record by relying on the horoscope. It is to be numbered that respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has number been explained as to how varying dates remained. If according to the respondent, the horoscope reflected the actual state of affairs it has number been explained as to why numbersteps were taken to get the school records companyrected. The first Appellate Court was number justified in its companyclusion that there was numbermaterial adduced by the present appellant to substantiate its stand regarding the date of birth. One thing further significant is that a school leaving certificate was produced at the time of appointment. On enquiry it was found that the same was forged one. Apart from the fact that there was numbereffort to reconcile the discrepancy in the so-called horoscope and the school record is a factor which has rightly been taken numbere of by the Trial Court. Without any plausible reason the first Appellate Court took a different view. In terms of Section 32, clause 5 of the Indian Evidence Act, 1872 in short the Evidence Act , the evidentiary value of a horoscope has to be companysidered. No evidence was led by the respondent to prove authenticity of the same. In any event the same was number to be given primacy over the school leaving certificate. It was number shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was number companyrect, which was number discharged. Two photostat companyies of the school leaving certificate were produced before the enquiry officer. He companypared them and found that even to naked eye change of figure 31 to 34 was visible. Interestingly in the said companyies the date of birth was indicated even after the change to be 25.11.1934 and number 1.10.1934 as claimed. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may number be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause 5 must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. In that companytext horoscopes have been held to be inadmissible in proof of age. See Ram Narain Vallia v. Monee Bibi ILR 9 Cal.613 , Mst. Biro v. Atma Ram AIR 1937 PC 101 , Satish Chandra Mukhopadhya v. Mohendra Lal Pathak ILR 97 Cal. 849 . On the companytrary, the statement companytained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32, Clause 5 unless it is established by unimpeachable companytrary material to show that it is inherently improbable. The time of ones birth relates to the companymencement of ones relationship by blood and a statement therefore of ones age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause 5 . As observed by this Court in Umesh Chandra v. State of Rajasthan 1982 2 SCC 202 , ordinarily oral evidence can hardly be useful to determine the companyrect age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if numberdocumentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth companystitute good proof of age. There is numberlegal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam. Therefore, the school records have more probative value than a horoscope. Where numberother material is available, the horoscope may be companysidered but subject to its authenticity being established. These aspects were number companysidered by the first appellate Court and the High Court. The High Court was, therefore, number justified in dismissing the Second Appeal by observing that there was numbersubstantial question of law involved.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 494 and 495 of 1958. Appeals from the judgment and order dated April 18, 1955, of the Madras High Court in Case referred Nos. 53 of 1952 and 44 of 1953. Hardayal Hardy and D. Gupta, for the appellant. V. Viswanatha Sastri, R. Ganapathy Iyer, S. Padmanabhan and G. Gopalakrishnan, for the respondent. 1960. December 8. The Judgment of the Court was delivered by SHAH, J.-These are two appeals filed with certificates of fitness granted by the High Court of Judicature at Madras. Appeal No. 494 of 1958 arises out of orders passed in certain Excess Profits Tax Appeals and Appeal No. 495 of 1958 arises out of orders passed in certain Income-tax References, Excess Profits Tax Appeals and Business Profits Tax Appeals. M s. N. M. Rayaloo Iyer Sons-hereinafter referred to as the assessees-are a firm carrying on business principally in dyes and chemicals. They are the chief representatives in South India of the products of the Imperial Chemical Industries Company India Ltd.-hereinafter referred to as the I.C.I The business in dyes and chemicals was in the years material to these appeals, companyducted in the name and style of Colours Trading Company, with its Head Office at Madura and in thirteen branch offices in different towns in South India. The busines was carried on originally in partnership by three brothers, N. M. R. Venkatakrishna Iyer, N. M. R. Subbaraman and N. M. R. Krishnamurti. On April 13, 1946, N. M. R. Subbaraman retired from the firm and the share of N. M. R. Venkatakrishna Iyer was taken over by a private limited companypany N. M. R. Venkatakrishna Iyer Sons Ltd., but the business was, numberwithstanding the changes in the personnel, companytinued in the original name and style. One N. M. R. Mahadevan son of N. M. R. Venkatakrishna Iyer -hereinafter referred to as Mahadevan-was employed by the assessees as the General Manager of the Colours Trading Co. By letter dated April 17, 1940, the assessees wrote to Mahadevan agreeing to pay him remuneration at the rate of Rs. 1,800 per annum and 5 of the net profits of the companycern Colours Trading Company calculated by deducting from the gross profits of the business, salaries, wages and other outgoings but without making any deduction for capital. By letter dated March 30, 1943, the salary of Mahadevan was fixed at Rs. 3,000 per annum and the companymission was enhanced to 12- 1/2 of the net profits of the Colours Trading Company. The branch offices were managed by local managers and assistant managers who were paid in addition to monthly salary, annual and special bonus and dearness allowance. The assessees received from the I. C. I. companymission at rates varying between 7-1/2 and 12 on different products sold to them. With effect from April 1, 1944, the I. C. I. allowed a special emergency companymission of 5 on all dyes and dyestuffs sold to the assessees. This special emergency companymission was increased to 15 on all sales on or after March 1, 1945, but was subsequently reduced to 10 on sales on and after September 1, 1946. These appeals relate to the liability of the assessees to Excess Profits Tax for the chargeable accounting periods ending April 13, 1943, April 12, 1944, April 12, 1945, and, March 31, 1946, and for Business Profits Tax for the chargeable accounting periods ending April 12, 1946, March 31, 1947, April 13, 1947, March 31, 1948, and April 12, 1948. The assessees claimed that they had paid to their employees in the years of account 1942-43 to 1947-48 under agreements executed from time to time a share in the special emergency companymission received from the I. C. I., in addition to monthly salary, dearness allowance and general and special bonus. The I. C. I. in allowing the emergency companymission by its letter dated January 24, 1944, recommended that 1 out of the 5 companymission allowed may be passed on by the assessees to their sub-distributors. The assessees claimed that pursuant to this recommendation, they paid to their employees companymission at rates varying between 1-1/2 to 4, and when the emergency companymission was increased to 15 and the I. C. I. by letter dated February 23, 1945, recommended that 6 out of this companymission may be passed on to the sub-distributors, the assessees claimed to have distributed companymission at rates varying from 2 to 7-1/2 and in some cases at a rate as high as 12. Under the service agreements, companymission was payable to the employees only if the turnover in dyes exceeded Rs. 1,00,000 net in any year, but to employees in several branches the assessees claimed to have paid companymission at generous rates even when the turnover fell far short of that amount. In the year of account ending April 12, 1945, there was a revision of the scales of salaries of the employees, and the assessees companymenced giving to their employees dearness allowance and special bonus which in the aggregate exceeded 50 of the basic annual salary and also annual bonus equal to the annual salary. The result of this revision of emoluments was that each employee received an amount equal to at least 21 times his enhanced basic salary. In addition to this remuneration, the assessees claimed that they had paid a share in the companymission which in some cases exceeded 12 times the basic salary. In companyputing the total income of the assessees for the years 1943-44 and 1944-45 for purposes of income-tax, the Incometax Officer disallowed the payment of 12-1/2 of the net profits of the Colours Trading Co. to Mahadevan and in companyputing the income for the assessment years 1945-46, 1946-47, 1947-48 and 194849 the Income-tax Officer disallowed the companymission. paid to the branch managers and other employees. In appeal the Appellate Assistant Commissioner set aside the order which disallowed the amount of companymission paid to Mahadevan and following the order of the Income-tax Appellate Tribunal in certain Excess Profits Tax appeals, allowed 5 of the net profits without deduction of Excess Profits Tax or Business Profits Tax, or 121 after deduction of Excess Profits Tax or Business Profits Tax whichever was higher. That order was companyfirmed in appeal by the Income-tax Appellate Tribunal. The Tribunal also companyfirmed the order disallowing the emergency companymission paid to the branch managers and other employees, and in the companyputation of taxable income for purposes of Income-tax, Excess Profits Tax and Business Profits Tax, added back all those payments. At the instance of the assessees, the Tribunal referred two sets of questions to the High Court under s. 66 1 of the Income-tax Act read with s. 21 of the Excess Profits Tax Act. Questions 1 to 3 in Referred Case No. 44 of 1953 were Whether in allowing a deduction under s. 10 2 xv of the Income-tax Act, the Income-tax Officer is precluded from going into the question whether the amount was paid wholly and exclusively for the purpose of the assessees business? Whether there was any material before the Tribunal to hold that the companymission payment to N. M. R. Mahadevan at 121 before deduction of Excess Profits Tax or Business Profits Tax was number wholly and exclusively laid out for the purpose of the assessees business? Whether the companymission payment to the branch managers, assistant managers and other employees is an expenditure laid out wholly and exclusively for the purpose of the business? Questions referred in Referred Case No. 53 of 1952 were Whether the Appellate Tribunal erred in law in holding that in accordance with the terms of letters dated 17th April, 1940, and 30th March, 1943, and the companyduct of the parties the Excess Profits Tax payable by the assessee should be deducted from the profits before the companymission of 12-1/2 payable to M. N. R. Mahadevan is calculated? Whether there is any material on evidence sufficient in law for the Appellate Tribunal to hold that the companymission of 12-1/2 on profits paid to Mahadevan was unreasonable within the meaning of Rule 12 of Schedule 1 of the Excess Profits Tax Act? Whether on the facts and circumstances of the case the disallowance by the Excess Profits Tax authorities of the companymission paid to branch managers is justified under Rule 12 of Schedule 1 of the Excess Profits Tax Act? The material provisions relating to allowances under the Excess Profits Tax Act and the Business Profits Tax Act which Act superseded the Excess Profits Tax Act as from March 30, 1946 were on the questions arising in this case substantially the same and hereafter reference to the Excess Profits Tax Act will in respect of the period after March 30, 1946, be deemed to be a reference to the Business Profits Tax Act. In the opinion of the High Court, in companyputing the taxable income, the deductions claimed by the assessees fell to be companysidered number under s. 10 2 xv of Income-tax Act but properly under s. 10 2 x of the Income-tax Act, the latter being a specific provision in the Act relating to deduction of companymission or bonus paid to an employee. The High Court observed that in assessing liability to Excess Profits Tax the bonus or companymission paid to the employees of the tax payer may be permitted as a deduction in the light of s. 10 2 x of the Income-tax Act and r. 12 of Sch. 1 to the Excess Profits Tax Act. The case of Mahadevan, according to the High Court, did number present much difficulty, the only question which fell to be determined in this case being whether in allowing deduction of companymission at the rate of 12-1/2 on the net profits, the Excess Profits Tax paid by the assessees was to be taken into account. Following a judgment of the Punjab High Court in Commissioner of Income-tax, Delhi v. Delhi Flour Mills Ltd. 1 , the High Court observed that in companyputing net profits Excess Profits Tax companyld number be deducted, but on the materials on the record, the question whether the companymission paid to the branch managers and other employees was properly deductible companyld number be decided, and accordingly the High Court called for and obtained from the Tribunal a supplementary statement of facts. The High Court after companysidering the supplementary statement observed that the assessees had undoubtedly distributed substantial sums out of the emergency companymission to its managers and assistant managers in the branches at rates well above the minima recommended by the I. C. I., but the distribution was at rates within the percentages allowed by the I. C. I., as additional companymission and the balance retained by the appellants out of the emergency Commission was also substantial. In the view of the High Court, the Tribunal had to companysider three factors, 1 the reasonableness of the companymission in the light of the companyditions laid down in s. 10 2 x , 2 the reasonableness of the percentages above the minima suggested by the I. C. I., and 3 the need for maintaining the reputation of the I. C. I., and the distributor in companyditions that prevailed during that period when black-marketing was rampant, but observed the High Court the Tribunal had made numberreal attempt to analyse the evidence before it to justify its companyclusion that only the minima recommended by the I.C.I. and numberhing in excess satisfied the test of reasonableness under r. 12, Sch. 1, of the Excess Profits Tax Act. They then observed that, whether the test of reasonableness is that prescribed by s. 10 2 x of the Income-tax Act or whether reasonableness has to be judged in the light of companymercial expediency under r. 12, Sch. 1, of the Excess Profits Tax Act, the expenditure was to be judged from the point of view of a businessman and number by the application of any subjective standard of a taxing 1 1953 23 I.T.R. 167. officer and that on an analysis of the materials furnished, they were unable to see anything per se unreasonable in the amounts of companymission actually paid by the assessees to the branch managers and assistant managers in the branches. The High Court also observed that the minima recommended by the C. I. did number provide the only or an absolute standard for judging the reasonableness of the payments made, and stated No doubt, the employees of the assessee were in receipt of regular salaries and bonuses. But then, a sub-distributor if he had number been paid a salary, would have had to be paid a share of the basic companymission itself. What the assessee got in the years in question was in the nature of a windfall. It shared it with its employees. It had been instructed to share it. The emergency companymission was allowed by the Imperial Chemical Industries so that the distributors companyld maintain the reputation of the Imperial Chemical Industries in the market even under the disturbed companyditions that prevailed in those years. If, to maintain that reputation and to maintain its own, the assessee paid to its employee even on a liberal basis, a share of that emergency companymission, it is a little difficult to hold that, while receipt of the emergency companymission was reasonable, sharing it beyond a particular point would per se be unreasonable, in the sense that numberprudent businessman in that line of business, in those years, and in the market companydition that prevailed then, with ample scope for black-marketting, would have paid out companymission on such a basis. They then companycluded Though, of companyrse, it was for the assessee to show that it was entitled to the deduction claimed under s. 10 2 x of the Income-tax Act and r. 12 of Sch. 1 of the Excess Profits Tax Act, there was really numberbasis on record to show that judged from the point of view of a businessman, payments in excess of the minima recommended by the Imperial Chemical Industries were number reasonable. We are of opinion that the entire claim should have been allowed both under s. 10 2 x of the Incometax Act and under r. 12 of Sch. 1 of the Excess Profits Tax Act on the ground that the statutory requirements were satisfied by the assessee. The High Court accordingly answered the questions about the disallowance of companymission paid to the employees of the assessees being justified under r. 12, Sch. 1, of the Excess Profits, Tax Act in the negative. Against those orders, these two appeals have been preferred with certificates of fitness from the High Court. The first question which falls to be companysidered is whether in the companyputation of taxable income for purposes of Incometax and Excess Profits Tax, companymission allowed to Mahadevan at 12-1/2 should be allowed after deducting the Excess Profits Tax paid. By the agreement dated April 17, 1940, as modified by the agreement dated March 30, 1943, Mahadevan was to be paid remuneration at the rate of Rs. 3,000 per annum and 121 of the net profits of the Colours Trading Company. In the view of the High Court in determining the net profits under the agreement in accordance with the principles of companymercial accountancy and the principles laid down under the Excess Profits Tax Act the Excess Profits Tax which is a tax on profits companyld number be deducted. In our judgment the question is one of the true interpretation of the agreement. Mahadevan was under the agreement to receive 121 companymission on the net profits of the Colours Trading Co. calculated by deducting from the gross. profits of the business the salaries, wages and other outgoings. The expression outgoings is number restricted to business or companymercial outgoings. The agreement specifically disentitles the employers to make deductions of capital expenditure, but there is numberindication that the outgoings are to be business outgoings only. There is numberhing in the agreement or in the companytext justifying the view that in the expression outgoings is number included the Excess Profits Tax paid by the assessees. In Commissioner of Income Tax, Delhi v. Delhi Flour Mills Co. Ltd. 1 , it was observed by this Court in companystruing a similar agreement that the Excess Profits Tax was a part of the profits itself, but it was numberpart of the net profits companytemplated by the parties if it was a part which had to be deducted in arriving at the net profits, that is to say, the divisible profits which alone the parties had in mind, as a matter of companystruction the net profits meant divisible profits and were to be ascertained after deduction of Excess Profits Tax. Counsel for the Revenue has number challenged the decision of the High Court that in companyputing taxable income for the purpose of income-tax companymission paid to the various employees is a permissible deduction under s. 10 2 x of the Income-tax Act. The only question which survives on this branch for companysideration is, therefore, whether those deductions are permissible in the assessment of Excess Profits Tax. By s. 21 of the Excess Profits Tax Act, amongst other provisions, s. 10 of the Income-tax Act is made applicable with modifications if any as may be prescribed as if it were a provision of the Excess Profits Tax Act and refers to the Excess Profits Tax instead of Income-tax. By s. 2 19 , the expression profits means profits determined in accordance with Sch. 1 of the Act which lays down the rules for companyputation of profits for the purpose of Excess Profits Tax Act. Rule 12 of Sch. 1 which was added by s. 4 of the Excess Profits Tax Ordinance, 1943 provided as follows In companyputing the profits of any chargeable accounting period numberdeduction shall be allowed in respect of expenses in excess of the amount which the Excess Profits Tax Officer companysiders reasonable and necessary having regard to the requirements of the business and in the case of directors fees or other payments for services, to the actual services rendered by the person companycerned Provided that numberdisallowance under this rule shall be made by the Excess Profits Tax Officer unless he has obtained the prior authority of the Commissioner of Excess Profits Tax. 2 1959 Supp. 1 S.C.R. 28. Any person who is dissatisfied with the decision of the Excess Profits Tax Officer under this rule may. appeal in the prescribed time and manner to the Appellate Tribunal. In relation to chargeable accounting periods ending after the 31st day of December, 1942, the Central Government may make rules for determining the extent to which deductions shall be allowed in respect of bonuses or companymissions paid. We were informed at the bar that though authorised, the Central Government did number make rules for determining the extent to which deductions shall be allowed in respect of bonuses or companymissions paid. The Excess Profits Tax Act was substituted as from the year 1946 by the Business Profits Tax Act, 1947. That Act also defined by s. 2, cl. 16 , the expression profits as meaning profits determined in accordance with Sch. 1 and by s. 19, the provisions of the sections of the Indian Income-tax Act as applied to the Excess Profits Tax Act by virtue of ss. 21 and 21A in so far they were number repugnant to the provisions of the Business Profits Tax Act applied to that Act as they applied to Excess Profits Tax Act and by cl. 3 of Sch. 1, a provision substantially similar to cls. 1 2 of cl. 12, Sch. 1, of the Excess Profits Tax Act was incorporated. Profits of a business for purposes of Excess Profits Tax Act have to be ascertained by reference to s. 10 of the Incometax Act modified to the extent directed by Sch. 1 of the Excess Profits Tax Act. By cl. 12 of Sch. 1 of the Excess Profits Tax Act, a deduction in respect of expenses in excess of the amounts which the Excess Profits Tax Officer companysiders reasonable and necessary having regard to the requirements of the business and in the case of payments for services to the actual services rendered by the persons companycerned, is number to be allowed. The deduction to be allowed, it is true, does number depend upon any subjective satisfaction of the Excess Profits Tax Officer, but on objective standards as to what is reasonable and necessary having regard to the requirements of the business and in the case of payments for services to the actual services rendered by the persons companycerned. The order passed by the Excess Profits Tax ,Officer is open to review by the Tribunal to which appeal against the order of the Excess Profits Tax Officer lies. But in companysidering whether the deduction is properly claimed, the primary duty is vested by the Legislature in the Excess Profits Tax Officer. It is for him subject to review by the Tribunal to decide whether the deduction is reasonable and necessary, having regard to the requirements of the business and in case of payments for services to the actual services rendered. The jurisdiction which the High Court exercises on questions referred to it under the Excess Profits Tax Act is merely advisory the High Court is number sitting in appeal over the judgment of the taxing authorities. If the taxing authorities having regard to the circumstances companye to a companyclusion that expenditure claimed as a deduction is number reasonable and necessary, it is number open to the High Court to substitute its own view as to what may be regarded as reasonable and necessary. Even if the High Court holds that the taxing authorities have companymitted an error in law by misconceiving the evidence, or by applying erroneous tests, or otherwise by acting perversely, the High Court may in answering the questions submitted, lay down the true principles applicable to the ascertainment of the permissible deductions and leave it to the taxing authorities to adjudicate upon the reasonableness and necessity of the expenses in the light of the requirements of the business. In the case in hand, the Excess Profits Tax Officer held, a that the employees of the assessees were being amply remunerated for services rendered by adequate salary, generous dearness allowance and annual bonus equal to the basic salary, b that the emoluments of the employees had been increased year after year and there was numbermaterial to show that the employees had made a persistent demand for increased emoluments, c that the companymission was credited to the employees account at the end of the year and was carried forward but numberpayments were made to them d that the agreements which had been produced by the assessees were fabricated with a view to, reduce tax liability, and e that the expenditure claimed was number proved to have been laid out wholly and exclusively for the purpose of the business. Taking into account these circumstances, the Excess Profits Tax Officer held that the remuneration paid to the employees was adequate and any additional companymission paid was in excess of what was reasonable and necessary. The only criticism urged by companynsel for the assessees against the grounds given is that the Excess Profits Tax Officer observed that while the net profit according to the Profit Loss Account of the firm was Rs. 20,487 leaving a share of Rs. 6,800 only to each of the partners, some of the managers got more than this amount. It appears that the Excess Profits Tax Officer companymitted an error in so observing. The profits of the Colours Trading Co. as disclosed by the order of assessment for the year 1945-46 were Rs. 99,435 and number Rs. 20,487 but that error did number affect the ultimate companyclusion recorded by the Excess Profits Tax Officer. According to the books of account of the assessees for the year 1943-44 of the business in dyes, the profits were Rs. 99,435 and they claimed to have distributed a companymission of Rs. 1,00,715 to their employees out of the emergency companymission, which was prima facie wholly disproportionate to the amount received by them. The order passed by the Excess Profits Tax Officer was companyfirmed in appeal by the Appellate Tribunal. In the view of the Appellate Tribunal, numberadditional incentive was required to sell dyes and chemicals in the years in question because dyes and chemicals were in short supply and there was a rise in demand. The Tribunal also referred to the table setting out the distribution among the employees of dearness allowance, bonus and salary in the relevant years, and observed In addition to the generous allowances, the payment of this sum appears to us a payment made in order to dissipate the profits. It would be sufficient to say that including the companymission alleged 10 to have been paid, the total emoluments would be something like 1200 and in some cases even more than the basic annual salary. There is numberdoubt in our mind, that this was wholly unnecessary for business purposes. Observing that the assessees having numbersub-distributors, the direction given by the I.C.I. did number require the assessees to pass on the companymission to their employees, they companycluded that the expenditure alleged to have been incurred was number reasonable and necessary within the meaning of r. 12, Sch. 1, of the Excess Profits Tax Act. The following table which is incorporated in the statement of case of the Tribunal sets out for the four years in question the emergency companymission received by the assessees and the aggregate amount paid by them to their employees. Extra companymis- Amount of companymis- Assessment sion received sion paid by the year. by the assessee. assessee. Rs. Rs. 1945-46 1,28,533 1,00,715 1946-47 3,20,391 2,44,698 1947-48 3,15,934 1,28,506 1948-49 3,70,964 1,75,079 This distribution out of the emergency companymission to the employees has to be viewed in the companytext of the following circumstances set out by the Tribunal 1 that even though the I.C.I. recommended payment to subdistributors and the assessees had numbersub-distributors, they claimed to have paid companymission to their employees at rates in excess of the minimum rates recommended by I.C.I. 2 that this companymission was paid to the employees in branches in which the annual turnover did number exceed Rs. 1,00,000 even though the agreements which the assessees had executed expressly provided that the companymission was to be paid only if the annual turnover in a branch exceeded Rs. I lakh and 3 that the basic salaries of the employees had been substantially increased from time to time and generous dearness allowance and Deepavali bonus were given besides the annual bonus to the employees. An analysis of annexure IL to the supplemental statement of case made by the Tribunal discloses some striking instances of Payments to employees. One Themaswamy was paid annually companymission varying from Rs. 15,000 to Rs. 23,000 when his basic salary was Rs. 2,100 per annum one K. N. Rajagopalachari was paid companymission varying from Rs. 16,000 to Rs. 12,000 when his basic salary was Rs. 1,260 per annum one S. L. Radhakrishnan was paid companymission varying from Rs. 5,700 to Rs. 13,000 when his salary varied between Rs. 516 and Rs. 636 per annum and one K. R. Rama Rao was paid companymission varying from Rs. 4,600 to Rs. 10,520 his salary being Rs. 492 and later increased to Rs. 612 per annum. There was thus ample evidence in support of the companyclusion of the Excess Profits Tax Officer which was companyfirmed by the Tribunal. As we have already observed, it is the province of the Excess Profits Tax Officer and the Tribunal to assess the permissible deductions in the companytext of reasonableness and necessity having regard to the requirements of the business and interference with the companyclusion is permissible if the view of the taxing authorities is vitiated by an error of law or is number based on any materials, or the companyclusion is such that numberman instructed in law companyld have arrived at. It is true that in companysidering whether the deduction claimed by the assessees for payments made as bonus or companymission paid to an employee is to be allowed, the taxing officer must have regard to the provisions of s. 10 2 x of the Income-tax Act and cl. 12 of Sch. 1 of the Excess Profits Tax Act and in assessing the reasonableness, companysideration of companymercial expediency must undoubtedly be taken into account. But companymercial expediency must be viewed in the light of the requirements of the business and the actual services rendered by the persons companycerned. Any abstract companysideration of companymercial expediency is out of place. In our view, the High Court was number justified in seeking to reappreciate the evidence on which the companyclusion of the Excess Profits Tax Officer which was companyfirmed by the Tribunal was based. Their jurisdiction being advisory, the High Court had to answer the questions submitted for opinion on the facts found if the High Court held the view that the taxing authorities had misdirected themselves in law or had made a wrong inference in law or had failed to apply the companyrect tests or had misconceived the evidence, it was. open to them to invite the attention of taxing authorities to the error companymitted by them but the High Court companyld number set aside the decision of the taxing authorities on a reappreciation of the evidence. We may also point out that even if the High Court companycluded that the total disallowance of the deduction claimed was number justified, the High Court companyld number substitute its own view as to what was reasonable and necessary. The High Court bad, if it disagreed with the taxing authorities, still to answer the questions submitted and leave to the companysideration of the Excess Profits Tax Officer what in the circumstances was reasonable and necessary. Counsel for the assessees submitted that in any event, the Tribunal having in its supplementary statement of case stated that payment in excess of what was recommended by the C.I. was unjustified, this companyrt may so modify the order of the High Court that deductions of the amounts which were recommended by the I.C.I. may be regarded as permissible deductions. The I.C.I. recommended distribution of a certain percentage out of the emergency companymission to the sub-distributors but in the administrative set up of the assessees, the sub-distributors did number find a place. The assessees carried on their business through paid employees. In terms therefore the recommendation by the I.C.I. had numberapplication to the assessees. It is true that even if the assessees did number carry on the business through subdistributors, payment made to its employees if reasonable and necessary having regard to the requirements of the business, may still be deductible, but that in our judgment is a matter to be decided by the taxing authorities and number by us. The Tribunal had companye to the companyclusion that numberpayment in addition to the salary, annual bonus and, special bonus was justified and any expression of opinion to the companytrary in the supplementary statement pursuant to the order for statement of case companyld number in our judgment affect the companyclusion originally recorded. In our view the answer to the question whether the disallowance by the Excess Profits Tax authorities of the companymission paid to branch managers was justified under r. 12, Sch. 1, of the Excess Profits Tax Act should have been answered in the affirmative. On the view taken by us, Appeal No. 494/1958 will be allowed, but there will be numberorder as to companyts. Appeal No.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1665 and 1666 of 1970. From the order dated the 25th July, 1968 of the Punjab and Haryana High Court in LPA Nos. 230 240 of 1968. S. Dhillon for the Appellant in both the appeals. Tirath Singh Munjral, G.K. Arora, S.S. Munjral and Gautam Bannerjee for the Respondents in both the appeals. The Judgment of the Court was delivered by KOSHAL J. By this judgment we shall dispose of Civil Appeals Nos. 1665 and 1666 of 1970 in which companymon questions of law have arisen for determination by this Court. The facts leading to the two appeals are undisputed and may be briefly stated thus. Licences to run liquor vends in various parts of Punjab during the financial year 1965-66 were sold by public auction shortly before the 1st April, 1965. Auctions were held at numerous places subject to identical companyditions which were supplied to the bidders in writing. Condition No. 8 which is material for our purposes is reproduced below That the licensee shall lift each month the proportionate quota for the month fixed for his vend s or deposit still-head duty realisable thereon. In the event of any deficiency in the amount of still-head duty realisable from the lifting of the full proportionate quota due to the short lifting of the quota by the licensee or number-deposit of the amount of the still-head duty, the said deficiency may be realised from the amount of security deposited by him at the time of grant of licence. The resulting deficiency in the amount of security shall be made good by the licensee within 7 days of such adjustment. In case the short lifting of proportionate quota or short deposit of still-head duty companytinues for two companysecutive months or the licensee fails to make up the deficiency in the amount of security within the prescribed period of 7 days, his licence may be cancelled in addition to the recovery of deficiency in still-head duty. Ajudhia Nath who figures as respondent No. 1 in each of the two appeals and who carries on business of selling companyntry liquor either in his own name or in the name and style of M s. Ajudhia Nath Bal Mukand a business companycern arrayed as respondent No. 2 in Civil Appeal No. 1665 of 1970 was the highest bidder for the auctions pertaining to 5 villages situated in the district of Amritsar and a companyple of villages in Ferozepur district. Accordingly the auctions were sanctioned in his favour and he was granted the necessary licences under the relevant provisions of the Punjab Excise Act hereinafter referred to as the Act and the rules framed thereunder. The licensee started his liquour selling business in the said seven villages on the 1st April, 1965. By the close of the financial year 1965-66, however, he was unable to lift the minimum quota of companyntry liquor and also failed to deposit the still-head duty which became payable by him under companydition No. 8 above extracted. He made applications claiming relief in the matter of payment of sums which had fallen due and such relief was granted to him in part by the Excise Taxation Commissioner, Punjab, on the ground that sales of companyntry liquor had been adversely affected by reason of the movement of population in the border areas of Punjab on account of the hostilities which broke out between India and Pakistan in the month of September 1965. Not satisfied with the relief so granted Ajudhianath filed two petitions under article 226 of the Constitution of India before the High Court of Punjab and Haryana claiming, inter alia, that still-head duty was an excise duty which companyld be levied only on manufacture of goods and which he was number liable to pay by reason of the admitted fact that he was number a manufacturer of liquor. A grouse was also made by him of the fact that the applications claiming relief had been decided without affording to him an opportunity of being heard. One of those petitions Civil Writ Petition No. 2034 of 1966 related to vends functioning in the two villages of Ferozepur District, while the other Civil Writ Petition Nos 2035 of 1966 companyered the 5 vends located in the 5 villages of Amritsar District. The petitions were allowed by a single order dated the 9th May, 1967 passed by D.K. Mahajan, J., on the sole ground that a similar petition Civil Writ Petition No. 2021 of 1966 had been allowed by Gurdev Singh, J., on the 27th March, 1966. The proceedings for the recovery of the short fall in the deposit of still-head duty by Ajudhia Nath which had been initiated by the State of Punjab and its companycerned officers appellants Nos. 1 to 4 in each of the appeals before us were quashed and the Excise and Taxation Commissioner, Punjab appellant No. 2 in both the appeals was directed to dispose of the cases of the respondents in accordance with law after hearing the petitioners. D.K. Mahajan, J., adopted all the reasons on which Gurdev Singh, J., had based his order above mentioned. Letters Patent Appeals preferred by the 4 appellants to the Division Bench of the High Court were summarily dismissed by Mehar Singh and Tuli, JJ., for the reason that a Letters Patent Appeal against the judgment of Gurdev Singh, J., above mentioned had met the same fate. It is against the judgment of the Division Bench which is dated the 29th August, 1969 that each of the appeals before us has been filed. Mr. Dhillon, learned companynsel for the appellants had drawn our attention to The State of Punjab v. Balbir Singh and Others, which reversed the judgment of Gurdev Singh, J., mentioned above and has companytended that the very basis of the impugned judgment has companysequently fallen to the ground. The companytention is companyrect. As pointed out in Balbir Singhs case supra the judgment of Gurdev Singh, J., in Civil Writ Petition No. 2021 of 1966 had proceeded merely on the ground that the petitioner-firm therein had number been given an opportunity of being heard in relation to the demand numberice issued to it for payment of the still-head duty on the entire minimum quantity of liquor which that firm was required to lift under the licence. In differing with the view expressed by Gurdev Singh, J., this Court made a reference to the following observations of Chandrachud, J., as he then was in Har Shanker and Others v. The Dy. Excise Taxation Commissioner and Others which was followed in Shyam Lal v. State of Punjab The announcement of companyditions governing the auctions was in the nature of an invitation to an offer to those who were interested in the sale of companyntry liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Governments acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the companytract between the bidders and the Government became companycluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of companytract between them and the Government, under which they became entitled to sell liquor. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial companysiderations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a numbermal incident of the trading transactions. Those who companytract with open eyes must accept the burdens of the companytract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to companylect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of companytract do number depend for their enforceability upon whether a companytracting party finds it prudent to abide by the terms of the companytract. By such a test numbercontract companyld ever have a binding force. and companycluded that the demand for the short-fall in stillhead duty was based on the term of a binding companytract and that it sought to enforce the liabilities arising out of mutually agreed companyditions of auction. Such a demand, in the opinion of this Court, companyld number be equated with a numberice requiring the liquor vendor to show cause why his licence should number be cancelled. In making this distinction this Court further relied upon State of Punjab v. Mulkh Raj and Co. wherein it was observed- It was also held there that a cancellation of the licence under section 36 of the Punjab Excise Act, 1914, had to take place quasi-judicially after due service of the numberice on the licensee to show cause why it should number be cancelled. Although, the merits of the last mentioned proposition need number be examined by us as it rests on a sound footing, yet, we find it difficult to uphold the order that the demand for a sum of Rs. 36,636. On account of short-fall should also be quashed on account of number-compliance with rules of natural justice in cancelling the licence in proceedings under section 36 of the Act. We think that the two liabilities were erroneously companysidered by the High Court to be inextricably linked up We do number think that, even if the respondent ought to have been given a hearing before cancelling the licence, this would dispense with his liability to deposit the amount of balance of the licence fee or invalidate the numberice of demand for it. Thus, the proposition is by number well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does number companye into play when the demand is merely for payment of a sum becoming due under the companyditions subject to which the licence was granted, and this proposition fully companyers these appeals. The demands for payment of the amount of the still head duty which had become due under the companytracts accepted by the respondents and had remained unpaid were demands arising under companydition No. 8 above extracted and had, therefore, resulted from the terms of those companytracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to be reversed. Faced with the above situation, Shri Munjral, learned companynsel for the respondents, raised the following two companytentions Still-head duty is a duty of excise which companyld only be levied on a manufacturer and number on a mere vendor of goods manufactured by others. If the still-head duty mentioned in companydition No. 8 above extracted cannot be regarded as a duty of excise, it nevertheless amounts to a tax of some other kind for levying which the State lacks authority. Reliance in companynection with companytention a is placed on Entry 51 of List II forming part of Schedule VII to the Constitution of India and on section 31 of the Punjab Excise Act. The relevant portions of these provisions state Entry 51 Duties of Excise on the following goods manufactured or produced in the State and companyntervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India - a alcoholic liquors for human companysumption Section 31 An excise duty or a companyntervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article- a imported, exported or transported in accordance with the provisions of section 16 or b manufactured or cultivated under any licence granted under section 20 or c manufactured in any distillery established, or any distillery or brewery licenced under section 21 These provisions leave numberroom for doubt that a duty of excise on alcoholic liquors meant for human companysumption cannot be recovered from the respondents because numbere of the 3 clauses of section 31 companyers their business activities. But then the first part of companytention a that still-head duty is a duty of excise cannot be accepted in view of the dicta in Har Shankar and others v. The Dy. Excise Taxation Commissioner and others supra and The State of Punjab v. Balbir Singh and others supra to the effect that the short-fall in still-head duty represents numberhing but sums recoverable by the appellants under the terms of a companytract which was entered into by the respondents with their eyes open and that the latter cannot be allowed to have the best of both the worlds by exploiting the companytract so long as it suits them and by repudiating it if and when it does number work to their advantage. Shri Munjral has vehemently companytended that stillhead duty is only another name for excise duty inasmuch as it is numberhing more or less than a duty leviable on the manufacture of alcoholic liquor. For this proposition he places reliance on a Division Bench judgment of the High Court of Punjab Haryana in M s. Bhajan Lal Saran Singh Co. v. The State of Punjab and others the approval of that judgment by this Court in Civil Appeals Nos. 1042 and 1043 of 1968 decided on 21st August, 1972, State of Madhya Pradesh v. Firm Gappulal etc. and Excise Commissioner, U.P., Allahabad and others v. Ram Kumar and others. These authorities, however, are of numberhelp to him because, in every one of them, the still-head duty which was mentioned in the companydition companyresponding to companydition No. 8 in the present case was either expressly stated to be an excise duty or was assumed to be a duty of that character. In fact, in the case of M s. Bhajan Lal Saran Singh it was companyceded on behalf of the State before the High Court that still-head duty was an excise duty and that is why the nature of the charge as excise duty was taken for granted before the High Court as well as in this Court. No question was either raised or decided as to whether it companyld at all be regarded as an excise duty. However, in later cases, namely, Har Shankar and others v. The Dy. Excise Taxation Commissioner and others, supra and The State of Punjab v. Balbir Singh and others supra the demand for still-head duty recoverable under companydition No. 8 above extracted was specifically held to be a demand for money which had become due under an obligation created by terms of the companytract. It is too late in the day, therefore, for Shri Munjral to companytend that such a demand should be companysidered as one companyering excise duty. He, however, relies on the following passage in Har Shankar and others v. The Dy. Excise Taxation Commissioner and others supra The second decision on which the appellants laid stress was rendered by the High Court of Punjab and Haryana in Jage Ram v. State of Haryana C.W. No. 1376 of 1961 decided on March 12, 1968 . The argument is that this decision is based on the earlier decision of the High Court in Bhajan Lal v. State of Punjab C.W. No. 538 of 1966 decided on February 6, 1967 , that the decision in Bhajan Lals case was companyfirmed in appeal by this Court C.A. Nos. 1042 and 1043 of 1968 decided on August 21, 1972 , that there is numbermaterial difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore, the rules and the procedure followed herein must also be struck down for the same reasons. This argument overlooks the significant difference between the rules struck down in Bhajan Lals case and in Jage Rams case and the amended Rules number in force. Under the old Rule 36 23- A still-head duty which was admittedly in the nature of excise-duty was payable by the licencee even on quota number lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and number the manufacturer of liquor. Rule 36 was amended on March 31, 1967 in order to meet the Judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is number only 0. 64 paise as against Rs. 17.60 per litre which was in force under the old Rules and excise duty as such is numberlonger payable on unlifted quota. The principle governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer. Emphasis supplied Special stress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is companytended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved number dissented from but were merely distinguished in Har Shankars case, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that companydition No. 8 as obtaining in the present case being identical with the companyresponding companydition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said companydition No. 8 seeks to levy numberhing but excise duty in the form of still-head duty. A careful perusal of the passage cited which appears at first sight to lend companyour to the companytention leaves numberroom for doubt, however, that in deciding Har Shankars case this Court was number called upon to adjudicate on the Constitutional propriety of companydition No. 8 above extracted, number with the question as to the nature of the levy companyered by that companydition. All that the Court said was that the companyresponding companydition in Har Shankars case was a very different companydition which companyld in numbermanner be companystrued to levy an excise duty. Besides, it was pointed out in the passage above quoted that the stillhead duty mentioned in the relevant companydition in the earlier cases which was indentical with companydition No. 8 was admittedly a duty of excise-a fact to which we have already adverted while holding that companydition No. 8 does number involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a companytract. We may also point out that the respondents are number companynected in any manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, numberquestion at all of levying a duty of excise on their operations which were companyfined merely to the sale of liquor manufactured by others and which, therefore, companymenced only after the process of manufacture was companypletely over. For all these reasons, we repel the companytention under examination. Contention b is also without substance and need number detain us long. For one thing, it was never raised at any earlier stage and its companysideration is bound to work prejudice to the cause of the appellants. Secondly, as already pointed out above, there is numberimpediment in the way of the demand being regarded as the enforcement of an obligation arising under the companytracts which the respondents had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub-section 3 of section 34 of the Punjab Excise Act. That sub-section states - Every licence, permit or pass granted under this Act shall be granted- a on payment of such fees, if any, b subject to such restrictions and on such companyditions, c in such form and companytaining such particulars, d for such period, as the Financial Commissioner may direct. According to Shri Munjral the payment of licence fees is provided for in the companyditions of auction apart from companydition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause b of the sub-section just above reproduced. That clause allows the imposition of companyditions on the grant of a licence, in addition to the payment of the licence fees which is a matter companyered by clause a . Condition No. 8 is, therefore, fully enforceable and there is numberreason why still-head duty should be regarded as a tax of any kind whatsoever. For the reasons stated, both the appeals are accepted and the impugned judgment. which cannot be sustained, is reversed so that both the petitions under article 226 of the Constitution of India filed by the respondents before the High Court and accepted by it are dismissed. However, we leave the parties to bear their own companyts.

N.Ray.J. All these appeals arise out of a companymon judgment dated March 31, 1987 passed by the Patna High Court in Criminal Appeal No.390 of 1983 Uday Prasad and two others Vs. State of Bihar and Criminal Appeal No.382 of 1983 Sheoji Prasad Vs. State of Bihar arising out of the judgment dated July 18, 1983 passed by the learned 4th Additional Sessions Judge. Arran in Sessions Trial No.314 of 1981. By the impugned judgment, the High Court has dismissed both the appeals and companyvictions and companysequential sentence passed by the learned Additional Sessions judge against the companyvicted appellants were affirmed by the High Court. The four accused namely Sheoji Prasad A/1 , Udai Prasad A/2 . Parameswar Prasad A/3 and Behari Prasad A/4 stood charged under Section 302 read with Section 149 and 34 I.P.C. for being members of an unlawful assembly with the companymon object and companymon intention to companymit murder of one Lal Babu on April 5, 1980 at about 1.00 P.M. at Arran town. The accused No.2 Udai Prasad was further charged under Section 302, 148 I.P. C. and Section 27 Arms Act. The accused Nos.3 and 4 namely Parameswar Prasad and Behari Prasad were also charged under Section 143 and 302/149 P.C. Accused No.1 Sheoji Prasad was also charged under Section 323 and 147 I.P.C. for causing voluntary hurt to Nandji P.W.1 with a hockey stick and for companymitting the offence of rioting. There was another accused Rameswar Prasad, the father of the accused No.2 Udai Prasad and accused No.3 Behari Prasad out he had died before the trial was companypleted. Excepting the accused Shedji Prasad, the other three accused are close relations. The accused Nos.2 and 4 are real brothers and accused No.3. Parameswar Prasad is the uncle fathers brother of the accused Nos.2 and 4. The deceased Lal Babu was nephew brothers son of Rameswar deceased and accused No.3 Parameswar Prasad. The companymon ancestor of the deceased and the accused Nos.2 to 4, namely. Baijnath Prasad had self acquired properties. In the ancestral house at Mohalla Mahadeva at Arran town, all the sons of Baijnath Prasad excepting the deceased accused Rameswar Prasad used to reside. The said Rameswar used to stay with the members of his family including his two sons namely accused No.2 Udai Prasad and accused No.4 Behari Prasad in a separate house hear Lalji Kothi close to Shismanal chowk in the town of Arran which is within the market area. The members of the family of Rameswar used to stay on the upper floor of the said house and in the ground floor there were two shops. The incident of murder had happened close to the said shoos. The numberthern shop of the said house was given by Baijnath to the father of the deceased Lal Babu since deceased. The remaining portion was given by Baijnath to his other two sons Gajadher Prasad W.4 and Beni Prasad, the deceased father of P.W.1 Nandji Prasad. Such disposition of his properties by Baijnath was number liked by his two other sons namely Rameswar deceased accused and Parameswar A/3 . It appears that a probate proceeding was pending between the five sons of Baijnath and their successors-in-interest. The interest of deceased Beni Prasad and deceased Badri Prasad were represented by their sons-Nandji Prasad P.W.1 and the deceased Lal Babu. The residential portion of the house where accused Rameswar used to live with his family members fell in the share of Lal Babu and suit for eviction of Rameswar was filed by Ram Babu. The shop room in the ground floor of the said house which was given to the father of Ram Babu by Baijnath was tenanted and accused No.1 Shedji Prasad was the tenant of the said shop room. A suit for eviction of Shedji was filed and such suit was fought upto this Court. The tenant Sheoji Prasad companypromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would believer vacant possession of the same to the deceased Ram Babu. Since vacant possession was number delivered, an execution case was instituted in the companyrt of the learned Munsif at Arran. The executing companyrt passed an order directing delivery of possession by the officer of the Court. On the date of the incident of murder. Rajib Ranjan the Naip Nazir of the Court DW 1 was deputed to deliver possession of the shop room tenanted to Sheoji Prasad to Ram Babu deceased. The said Naib Nazir in the companypany of four companyrt peons and a lawyer reached the said shop at about 1.00 M. on April 5, 1980. It appears from the deposition of Rajib DW 1 and his report Ext.B that since one Dariachnan Sad claimed tenancy right in respect of the said shoo room on the ground of being inducted as a tenant by the deceased accused Rameswar, the said Naib Nazir did number deliver possession of the said shop room to the deceased Ram Babu and left the place. The prosecution case in short is that on a false plea of tenancy raised by Dariachhan, the Naib Nazir being prevailed upon by the deceased Rameswar, accepted the case of tenancy and did number deliver possession to Ram Babu without ascertaining real state of affair. As soon as the said Naib Nazir, the companyrt peons and the lawyer left the place, at the exhortation of accused No.1 Sheoji Prasad, to the accused persons present at the spot, the deceased accused Rameswar Prasad and accused No.1 Sheoji Prasad assaulted the informant Nandji Prasad P.W.1 and P.W.2 Badri Prasad respectively with an iron rod for measuring cloth and a hockey stick. Accused No.3 Parameswar Prasad and accused No.4 Behari Prasad then caught hold of both the arms of the deceased Ram Babu and on being exhorted by accused No.3 Parameswar, accused No.2 Udai Prasad fired on the deceased Lal Babu with a companyntrymade pistol. The deceased accused Rameswar gave a plow on the head of the deceased Ram Babu with the said iron rod. Ram Babu and the two other injured namely Nandji Prasad P.W.1 and P.W.2 Badri Prasad were taken to the hospital at Arran. Ram Babu, however, succumbed to the injuries shortly after the incident. At about 14.05 hours i.e. within half an hour of the incident, the fardbayan of Nandji Prasad P.W.1 was recorded and within a few minutes formal F.I.R. was drawn up. Investigation of the case was immediately taken up and at about 14.15 hours, inducts of the dead body of Ram Babu was made. The Investigating Officer visited the place of occurrence and blood stained earth was seized and a seizure list Ext.6 was prepared. Both the injured P.W.1 Nandji and W.2 Badri Prasad were examined by the doctor at Arran hospital at about 14.10 hours. The Investigating Officer Astadue Hussain, however, did number appear in companyrt to depose. His investigation report was identified by F.W.E. the clerk of the public prosecutor and was marked as Ext.4. The prosecution case has been sought to be proved by examining several eye witnesses. P.W.1 Nandji and P.W.2 Badri are injured eye witnesses. P.W.1 Nandji is the informant of the said incident of murder and rioting. P.W.2 Badri Prasad is the father-in-law of the deceased. PW 3 Kumkum is the daughter of the deceased. She is a school going girl aged about 14 years. According to her evidence, she had gone to the place of incident for witnessing delivery of possession of the shop through Court. P.W.4 is Sajadher Prasad who is an uncle of the deceased. P.W.5 has number deposed for the prosecution but he was tendered for cross examination. The learned Additional Sessions Judge after companysideration of the evidences adduced in the case and the materials on record inter alia came to the finding that the accused were pent upon number giving possession of the shoo room and was also pent upon harassing the decree holder deceased and being annoyed with the deceased for taking steps to get delivery of the possession of the said shop room through companyrt, the accused took extreme step in eliminating the decree holder by killing him and also assaulting the uncle and the father-in-law of the deceased who were present at the spot in order to help the deceased in taking possession. The learned Additional Sessions Judge held that all the four accused along with deceased accused Rameswar had formed an unlawful assembly for the purpose of killing Ram Babu and assaulting his helpers on April 5, 1980 at about 1.00 P.M. on the road in front of Lallanji kothi and in furtherance of companymon object and companymon intention of the accused, accused No.2 Udai Prasad companymitted murder of Ram Babu by companyntry made gun and other two accused namely accused No.3 Parameswar and accused No.4 Behari Prasad in furtherance of the said companymon object and companymon intention held both the arms of deceased Ram Babu and Parameswar also exhorted Udai to kill Ram Babu. The learned Additional Sessions Judge also held that deceased Rameswar and accused No.1 Sheoji Prasad assaulted P.W.1 and P.W.2 and Rameswar also assaulted the deceased. The learned Additional Sessions Judge, therefore, held accused No.2 Udai Prasad guilty for the offence under Section 302 and 148 I.P.C. and also under Section 27 of the Arms Act for possessing unauthorised arm and also found him guilty under Section 302 read with 149 and 302/34 I.P.C. The said accused No.2 Udai Prasad was sentenced to imprisonment for life for offence under Section 302 but numberseparate sentence was passed for the offence under Section 148. 302/149. 303/34 I.P.C. and Section 27 of the Arms Act. Accused No.3 Parameswar and accused No.4 Behari Prasad were sentenced to imprisonment for life for offence under Section 302/149. They were also found guilty for offence under Section 302/34, 302/109 but numberseparate sentence was passed for such offence. Accused No.1 Sheoji Prasad was sentenced to imprisonment for life for the offence under Section 302/149 I.P.C. but numberseparate sentence was passed for the offence under Section 302/34 and 147 I.P.C. although he was found guilty for such offence. Against the said companyviction and sentence of the learned Additional Sessions Judge. Udai Prasad, Behari Prasad and Parmeswar Prasad preferred Criminal Appeal No.390 of 1983 before the Patna High Court. Sheoji Prasad preferred Criminal Appeal No.382 of 1983 before the Patna High Court against his companyviction and sentence. Both the appeals were heard analogously by the Division Bench of the High Court and by a companymon judgment dated March 31, 1987, the High Court dismissed both the appeals by affirming the companyviction and sentence passed by the learned Additional Sessions Judge. Mr.Sushil Kumar, the learned Senior Counsel appearing for the appellant Behari Prasad in Criminal Appeal No.1 of 1989 has submitted that in this case it is an admitted position that the deceased and the alleged eye witnesses for prosecution belong to one camp. The close relations of the deceased namely P.W.1, 2, 3 and 4 are highly interested witnesses and they were actuated by a strong desire to ensure that deceased accused Rameswar and their two sons namely Udai Prasad A/2 and Behari Prasad A/4 and their uncle Parameswar Prasad A/3 were roded in for the offence of murder of Ram Babu. Admittedly, the incident had taken place in broad day light in the market area of Arran town where number of independent persons were present. But the prosecution chose to examine only the close relations of the deceased to prove the case and numberindependent and reliable witness has been examined. Mr.Sushil Kumar has submitted that according to the prosecution case the Naib Nazir had already been influenced by the accused and the judgment debtor Sheoji Prasad and the said Naib Nazir on the protest by one Dariachnan claiming tenancy right in the disputed shop room, did number deliver possession of the said shoo and had left the place. Therefore, there was numberoccasion to indulge in criminal activities including companymission of a grave offence of murder in the broad cay light in a market place of a town. The prosecution story on the face of it is highly improbable. Mr.Sushil Kumar has submitted that alleged eye witnesses have deposed that the tenant of the shop Sheoji Prasad A/1 had only a hockey stick in his hand. The others were empty handed. The deceased accused Rameswar had also numberweapon in his hand but he picked up a small iron rod for measuring cloth in the shop itself. The deceased was admittedly accompanied by his relations. If there was any companymon object or companymon intention to kill the deceased Ram Babu, it was reasonably expected that the accused would have companye variously armed so that oesdite expected resistance from the deceased and his relations and companypanions, they companyld over power the deceased and his companypanions with the help of weapons to be carried by them. The very fact that the accused were practically unarmed, amply indicates that there was numbercommon object or companymon intention to companymit murder of Ram Babu. Admittedly, Sheoji is a tenant of the shop in question. Deceased Rameswar and his two sons Udai and Behari admittedly stayed in the upper floor of the same building. Parameswar was a vary close relation of the said three accused being brother of Rameswar and uncle of Udai and Behari. Hence, the presence of the said accused in the shop or hear the shop, even if accepted, will number companystitute formation of unlawful assembly. According to the prosecution case, after the Naib Nazir of the companyrt had left the shop. Sheoji Prasad A/1 exhorted to the other accused to assault the deceased. On such exhortation. Nandji Prasad P.W.1 and Badri Prasad P.W.2 were assaulted by Rameswar and Sheoji Prasad respectively with iron rod for measuring cloth and hockey stick. The prosecution witnesses have number alleged that other accused on such exhortation assaulted the said witnesses or even Ram Babu. The only allegation is that Parameswar A/3 and Badri A/4 had caught both the arms of the deceased. According to prosecution case, it was only at this stage that Parameswar exhorted Udai to kill Ram Babu whereupon Udai A/2 whipped out a companyntrymade pistol and fired at Ram Babu. Mr.Sushil Kumar has submitted that there is enough doubt as to which weapon was used by Udai. The weapon was described both as a gun and as a pistol. Such vague description of the weapon by the eye witnesses who claimed to have seen the occurrence from a close range, also suggests that they had number seen any weapon in the hand of Udai and numbericing that an injury by a fire arm was caused to the deceased, a false allegation of using a pistol or a gun by Udai was made. Mr.Sushil Kumar has submitted that the prosecution story cannot be accepted because the manner in which the deceased was injured by a gunshot is highly improbable. Mr.Sushil Kumar has submitted that if accused No.3 and accused No.4 had held both the arms of the deceased and accused No.2 Udai had shot the deceased from a close range by using deletes, both accused No.3 and accused No.4 would have sustained injuries at least by few deletes because such deletes would have diverged after companying out of the barrel of the gun. But numbersuch injury was caused to the said witnesses. Appreciating the improbability of the prosecution case, the eye witness tried to embellish at the time of deposition. Although it was number stated in the fardbayan companystituting F.I.R. that the said two accused had released the hands at the time of firing, such case was later on sought to be introduced in the deposition. Such material companytradiction in the case made out in deposition and as alleged in F.I.R. companying from a close relation and interested witness should number be accepted particularly in the absence of any companyporation from reliable, independent and disinterested witnesses. Mr.Sushil Kumar has submitted that numberreliance should be made on the deposition of the daughter of the deceased Kumkum . She was admittedly a school girl and numbermally she would have been in the school at the time of companymission of offence. But she has deposed that she did number go to school but came to the market place to witness the delivery of possession of the shop room. Such case is highly unusual and improbable and numbercredence should be given to the deposition of such chance witness who was numbermally number expected to be present. Mr.Sushil Kumar has admitted that in this case Investigating Officer has number been examined. But the entire case diary was allowed to be exhibited. The prosecution and the Judge have relied on the numberhings in the case diary Although the maker of the case diary did number prove the companyrectness of such numberhings and the companyrectness of the recordings in the diary had number been tested by cross examining the Investigating Officer. Mr. Sushil Kumar has submitted that by looking to the case diary and relying on the same in support of prosecution case serious prejudice to the accused has been caused and such action has occasioned a grave miscarriage of justice. In this companynection, Mr.Sushil Kumar has referred to the decision in State of kerala Vs. Ammina AIR 1988 Kerala 1 1988 Crl.L.J. 107 . A Division Bench of the kerala High Court has held in the said decision that the diary mentioned in Section 172 1 and statements recorded under Section 161 3 of the Code of criminal Procedure are companyered by the sweep of inhibition companytained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172 2 of the Code. The two are different records, though the diary envisaged under Section 172 1 and statements recorded under Section 161 3 may together be incorporated in the same file which the police call for the sake of companyvenience case diary file. That apart, Section 172 2 of the Code embodies an inhibition that the diary envisaged in that section is number to be used as evidence in the case. Mr.Sushil Kumar has also relied on a decision of the Mysore High Court in Hirianna Shetty Vs. The State of Mysore 1972 1 Mysore Law Journal 50 . It has been held in the said decision that the examination of the Investigating Officer is necessary in order to bring on record the companytradictions in the statements of witnesses and such a right is a valuable right of the accused. Non examination of the Investigating Officer is a serious infirmity in so far as it deprives the accused of an opportunity to show that witnesses were number reliable by proving companytradictions in the earlier statements. Mr.Sushil Kumar has submitted that the accused in this case, particularly when the witnesses were only partisan witnesses, have suffered serious prejudice on account of being deprived of the opportunity to point out material companytradictions in the earlier statements of the witnesses for number examining the Investigating Officer. Mr.Sushil Kumar has submitted that in the aforesaid facts, the prosecution case must be held to have number been proved beyond reasonable doubt and all the accused should be acquitted. Mr.Sushil Kumar has also submitted that in any event accused No.4 Behari Prasad deserves to be acquitted. Admittedly, he was staying on the upper floor of the building in which the said shoo room appertained. It is quite probable that out of curiosity he had companye to see the action by Naib Nazir in execution of a companyrt case. He was admittedly empty handed. The only allegation against him was that he caught hold of one of the arms of the deceased. When suddenly Parameswar exhorted to Udai to kill the deceased. Udai whipped out a fire arm and shot at the deceased. It cannot be reasonably held that he had any companymon intention or companymon object of killing Ram Babu. It is number unlikely that although he along with others might have intended to give some thrashing to the deceased, the events suddenly changed on the exhortation of Parameswar to kill the deceased. It is also number unlikely that Behari was rot aware that Udai had companycealed a fire arm which he had used on sudden provocation by Parameswar. Hence, numberconviction under Section 302/149 or 302/34 I.P.C. can be given to Behari even if the prosecution case that he caught one of the arms of the deceased is accepted on its face value. The appellant Behari, therefore, should be acquitted by allowing his appeal. Mr.U.R.Lalit, learned senior companynsel appearing for the appellant Parameswar in Criminal Appeal No.437 of 1988 has also endorsed the arguments made by Mr.Sushil Kumar that the prosecution case was number believable and had number been established beyond reasonable doubt. He has also endorsed the submission that the case diary number having been proved, such case diary companyld number be looked into and the accused had suffered serious prejudice for number examining the Investigating Officer. He has submitted that such number examination of the Investigating Officer and companysequential prejudice in number getting the opportunity to effectively cross examine the eye witnesses by indicating companytradictions in the earlier statements before the police, have vitiated the trial. Mr. Lalit has submitted that Parmeswar is the real brother of Rameswar and uncle of Udai and Behari. His presence in or hear the residential house of Rameswar was neither unusual number per se illegal. He was admittedly without any arm. The allegation against him is that he caught hold of one of the arms of the deceased Ram Babu and exhorted Udai to kill Ram Babu and Udai thereafter shot the deceased. Such case is highly improbable. He has also submitted that numberman holding an arm of the victim will ask the assailant to fire bellet shots on the victim from a close range because in that event, the person giving exhortation was also likely to be injured. Mr.Lalit has submitted that the prosecution case was wholly unreliable and the appellant should be acquitted. Mr.Promod Swarup learned companynsel appearing for the appellant Sheoji Prasad in Criminal Appeal No.195 of 1989 has also endorsed the submissions of Mr.Sushil Kumar and has submitted that the prosecution had number only failed to establish the prosecution case beyond reasonable doubt but such case on the face of it was highly improbable. Mr.Swarup has submitted that Sheoji Prasad is number related to the other accused or the deceased and their relations. He is admittedly a member of a different caste. Sheoji Prasad was tenant of the shop in respect of which decree for eviction was passed. Sheoji Prasad had undertaken to vacate the shoo room before this Court. It is, therefore, unlikely that on his own initiative he would flout the undertaking and forcibly resist execution of the decree. Even if it is assumed that he was keen in frustrating the execution of the decree, admittedly such purpose was secured when the Naib Nazir without executing the decree left the place. After such event, there was hardly any occasion for Sheoji Prasad to wreck any vengeance on the decree holder by inciting other accused. Presence of Sheoji Prasad in his own shop is wholly legal and he cannot be held to be a member of unlawful assembly. The allegation is that after the Naib Nazir and companyrt peons and the lawyer had left the shop, he exhorted other accused to assault the deceased and his companypanions. It is alleged that Sheoji had only a hockey stick with which he assaulted Badri Prasad. There is numberallegation against him that he assaulted the deceased or exhorted for killing the deceased. Mr.Swarup has submitted that even if the prosecution case is accepted. Sheoji Prasad is number liable to be punished for offences under Section 302/34, 302/149 and Section 147 I.P.C. Hence, companyviction of Sheoji Prasad for the aforesaid offences is wholly illegal and should be set aside. The learned companynsel appearing for Udai Prasad A/2 in Criminal Appeal No.789 of 1989 has endorsed the submissions of the learned companynsel appearing for other appellants by companytending that the prosecution case was improbable and the same had number been established beyond reasonable doubt. Hence, the said accused should also be acquitted by giving him benefit of doubt. As there was direct evidence about the companymission of murder by this appellant, the learned companynsel has number advanced any submission regarding absence of companymon object or companymon intention in murdering Ram Babu. The learned companynsel for the State appearing in all these appeals has, however, refuted the companytentions made by the learned companynsel for the appellants. It has been companytended by the learned companynsel for the State that the prosecution case has been clearly established by reliable evidences of the eye witnesses. Such eye witnesses being close relations were expected to be present at the place of occurrence. Simply because they are relations, it cannot be held that they were partisan and deposing falsely. The learned companynsel has submitted that the said witnesses were also close relations of the accused excepting Sheoji Prasad. After a long drawn battle upto the Apex Court, the deceased was going to get possession. The daughter of the deceased aged 14 years became curious to numberice execution through companyrt and came with elderly relations. There is numberhing unusual in her presence at the time of occurrence. P.W.1 and 3 were injured witnesses. Shortly after the incident, they were examined by doctors. F.I.R. was also lodged immediately after the incident and the accused were named. Hence, numberinterference is called for in these appeals. After companysidering the facts and circumstances of the case and the judgments of the learned Additional Sessions Judge and of the High Court and the evidences adduced in the case through which we have been taken by the learned companynsel for the parties and companysidering the submissions made by the learned companynsel for the parties, it appears to us that the prosecution case has been proved by the eye witnesses in this case. Over the shoo room, a long drawn battle was fought by the deceased upto this companyrt. Ultimately, the delivery of possession of the shop through companyrt was fixed on the date of incident. It was, therefore, quite natural that the said eye witnesses being close relations of the deceased were present at the place and at the time of the incident. In our view, the learned companynsel for the State is also justified that in the facts of the case the presence of the daughter of the accused aged 14 years in the companypany of elderly relations was also number unusual. The accused Nos.2 to 4 and deceased accused Rameswar though related to the deceased had been harbouring ill feeling and grudge against the deceased. As a matter of fact, suit for eviction was also filed by the deceased against Rameswar. It was, therefore, quite likely that they took side of Sheoji Prasad in frustrating the execution of the eviction decree against Sheoji Prasad. Although, the accused managed for the time being to frustrate execution of decree through companyrt by influencing Naib Nazir to accept the case of independent tenancy in favour of a third party on the face value of the statement of such tenant without ascertaining relevant facts and thereby sending him back without executing the decree, the accused were fully aware that the decree for eviction affirmed upto this companyrt was staring on their face. They were, therefore, quite agitated and it is number at all unlikely that they became revengeful against the decree holder deceased Ram Babu. Immediately after the Naib Nazir, Court peons and the lawyer had left the place of occurrence, at the behest of accused No.1 Sheoji Prasad the accused No.1 and deceased accused Rameswar assaulted P.W.1 and P.W.2. The accused No.3 and 4 with an intention to immobilize the deceased caught both of his arms. It is the positive case of the prosecution that accused No.3 Parameswar exhorted accused No.2 Udai to kill the deceased and accused No.2 then whipped out a fire arm and shot at the deceased from a close range which caused his death. From the evidences of the eye witnesses it is quite evident that the accused were aware that one of them namely Udai A/2 was carrying a fire arm for assaulting the deceased. In order to facilitate such assault on the deceased both accused No.3 and 4 took active part by holding both the arms of the deceased to make him immobile. Accused No.2 Udai then fired at the deceased. The fire arm was described both as pistol and gun. But the nature of the fire arm has been explained by the eye witnesses. The fire arm was a companyntrymade weapon. It was number unlikely that barrel of the fire arm number being of any standard size, there was companyfusion in describing the fire arm very accurately. But in view of clear evidence that the deceased was shot at by a companyntrymade fire arm by Udai Prasad A/2 , we do number find any reason to entertain any doubt that the eye witnesses had number seen Udai firing from a companyntry made fire arm. The medical evidence has also companyroborated the case of suffering pellet injuries by the deceased. In this case. P.W.1 and W.2 are injured eye witnesses. Their presence at the time of incident is, therefore, number to be doubted. They were also examined almost within an hour by this doctor. The Pardbayan forming F.I.R. was lodged within about half an hour and the names of the accused and their specified roles were also indicated in F.I.R. It has been companytended by the learned companynsel that if the deceased had been shot at from a close range when the two accused had been holding the arms of the deceased, they also would have suffered pellet injuries and the fact that they had number suffered such injury only indicates that the deposition of the eye witnesses are false. Such submissions, however, should number be accepted. There is clear evidence that just before the firing the said accused left the deceased. In the facts of the case, numberadverse inference against the prosecution case need be drawn for number giving the detailed account of the firing by indicating that the two accused holding arms had left the deceased just at the time of firing. It may be numbered that I.R. was lodged almost within half an hour of the incident by the injured witness who apart from discomfort on account of injury sustained by him, was likely to be companypletely upset at the unfortunate incident of killing of his close relation before his eyes. In such circumstances, omission to mention of the fact of leaving the arms of the deceased by the accused Parameswar and Behari just at the time of firing is understandable. It, however, appears to us that the entire case diary should number have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in companymitting the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in companyformity with the case made out in F.I.R. and also with the medical evidence. Hence, for number examination of Investigating Officer, the prosecution case should number fail.

K. Mukherjea, J. This appeal, which has companye before us on special leave, is directed against a judgment of a Division Bench of the Mysore High Court dated the 2nd February 1953, by which the learned Judges reversed, on appeal, an order dated the 10th October 1952 made by the Sub-Judge, Tumkur, sitting as Election Commissioner, in Election Mis. Case No. 1 of 1952-53. The material facts lie within a brief companypass and are for the most part uncontroverted. There was an election held for the Town Municipal Councillorship of the Gubbi town, in the State of Mysore, in March 1952, and the appellant and the respondent before us were the two rival candidates for the seat. At the time of the scrutiny of the numberination papers, objection was taken by the respondent to the numberination of the appellant as a candidate, on the ground, that he was holding an office of profit under the Government at that time, as the Chairman of Gubbi Taluk Development Committee, and was hence disqualified for being chosen as a Councillor under Section 14 of the Mysore Town Municipalities Act, 1951 hereinafter called The Act . The objection was overruled and both the candidates went to the poll. As a result of the voting, the appellant was declared elected and thereupon the respondent filed an election petition before the Sub-Judge, Tumkur, who was the Election Commr. companystituted under the Act, praying that the election of the appellant might be set aside on the ground of his being a disqualified candidate within the meaning of Section 14 1 A a iii of the Act. There was a further prayer that the respondent being the only other rival candidate should be declared duly elected at the election held in March 1952. The Sub-Judge, by his order dated the 10th October 1952, dismissed the petition, holding inter alia, that the appellant, who as number-official Chairman of the Taluk Development Committee was entitled to draw only a small fee of Rs. 6 per sitting, companyld number be said to hold an office of profit under the Government as companytemplated by Section 14 of the Act. Against this decision, the respondent took an appeal to the High Court of Mysore which came up for hearing before a Division Bench companysisting of Medapa, C. J. and Vasudevamurthy, J. The learned Judges by their judgment dated the 2nd February 1953 allowed the appeal and reversed the judgment of the Election Commissioner. The election of the appellant was set aside and the respondent was declared to be duly elected. It is the propriety of this judgment that has been challenged before us in this appeal. The companytentions raised on behalf of the appellant are of a three-fold character. It has been companytended in the first place that the election petition filed by the respondent was misconceived and number tenable in law, and his remedy, if any, lay in an appeal to the Government which was the only authority companypetent to decide and pass final orders on questions relating to disqualification of candidates under Section 14 of the Act. The second point taken is that on the admitted facts of this case the appellant companyld number be said to be holding an office of profit under the Government and was companysequently number subject to any disqualification for being elected a Councillor. The third and the last companytention is that even if the election of the appellant companyld be set aside, it was imperative under the provisions of the Act that a fresh election should be held the High Court companysequently companyld number have declared the respondent to be the duly elected candidate. So far as the first ground is companycerned, the learned companynsel for the appellant has placed companysiderable reliance upon Section 14 of the Act and his companytention is that the provisions of Section 14 and those of Section 20 of the Act are mutually exclusive. It is said, that the ground upon which the respondent assailed the validity of the election of the appellant is one which companyes directly under Section 14 of the Act and can be dealt with only in accordance with the provisions of that section and that it cannot be made the subject-matter of an election petition under Section 20 of the Act. Section 14 of the Act purports to deal with the general disqualifications for becoming a Councillor. The various clauses of Sub-section 1 of the section enumerate the grounds, which would disqualify a person from being chosen as or for being a Councillor, and one of such grounds is that the person holds an office of profit under the Government of India or the Government of any State specified in the First Schedule to the Constitution. After enumerating the different grounds of disqualification the Sub-section provides that If any person is elected as a companyncillor in companytravention of these provisions, his seat shall be deemed to be vacant. To this, a proviso is added that Nothing in this section shall invalidate the election, if the disqualification is such as companyld have been brought to the numberice of the Returning Officer at the time of or before the scrutiny of the numberination papers and has number been so brought to his numberice. Sub-section 2 deals with cases where the disqualification occurs subsequent to a person being elected a Councillor. Sub-section 3 then lays down If any question or dispute arises whether a vacancy has occurred under this section, the orders of the Government shall be final for the purpose of deciding such question or dispute. Turning number to Section 20 of the Act, it would be seen that it purports to lay down the procedure relating to enquiry into the validity of an election, by the Election Commissioner. Sub-section 1 lays down within what time and by whom the election petition companyld be presented. Sub-section 2 indicates the nature of the order which the Election Commissioner may pass, and it is stated that he may make an order companyfirming or amending the declared result of the election, or setting the election aside. Clause a of Sub-section 3 provides that if the Election Commissioner is satisfied that a candidate has companymitted any of the companyrupt practices, he shall declare the candidate disqualified both for the purpose of that election and of such fresh election as may be held under Sub-section 2 and shall set aside the election of such candidate if he has been elected. Clause b says that if in any case to which Clause a does number apply, the validity of an election is in dispute between two or more candidates, the Election Commissioner shall, after scrutiny and companyputation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected. Sub-section 4 describes what a companyrupt practice is. Subsection 5 , which is also material for our present purpose, provides as follows If the validity of the election is brought in question only on the ground of an error by the officer or officers charged with carrying out the rules made under Clause b of Sub-section 2 of Section 208 or of an irregularity or informality number companyruptly caused, the Election Commissioner shall number set aside the election. Explanation.-- The expression error in this Sub-section does number include any breach of or any omission to carry out or any number-compliance with the provisions of this Act or rules made thereunder whereby the result of the election has been materially affected. It is pointed out by the learned companynsel for the appellant, and we think rightly, that the disqualification, which is alleged against his client, companyes specifically within the purview of Section 14 of the Act. According to the respondent, the appellant was elected a Councillor in companytravention of the provisions relating to disqualifications as laid down in Section 14 and companysequently under the termsof that section his seat should be deemed to be vacant. As this objection was taken before the Returning Officer, the rival candidate may number be precluded from raising this point but it is companytended by the learned companynsel, that the only authority companypetent to decide such dispute is the Government whose decision on such matters is final under Sub-section 3 of Section 14. Section 20, it is further pointed out, does number specify the grounds on which an election petition should be filed to set aside an election. Clauses a and b of Sub-section 3 would seem to indicate that such petition companyld be made only on allegations of companymission of companyrupt practice or irregularities in the companyputation of votes. It is urged therefore that the only remedy open to a person aggrieved by election when he alleges lack of qualification in the returned candidate, is to approach the Government under Section 14 3 of the Act and an election petition under Section 20 is number at all maintainable in such cases. Prima facie there appears to be force in this argument. It is to be numbered that under Section 14 of the Act, if a person is elected as a Councillor in companytravention of the provisions relating to disqualification as companytained in that section, the seat of the returned candidate shall be deemed to be vacant. The language suggests that in such cases the election automatically becomes void without requiring it to be set aside by an election petition under Section 20 of the Act. At any rate, if the seat becomes vacant and if under Sub-section 3 the Government is made the final authority to determine such disputes, it would be unreasonable to hold that the same matter companyld be also agitated before the Election Commissioner under Section 20 of the Act, with the attendant risk of a companyflict of decision between the two authorities. Mr. Pattabhiraman appearing for the respondent before us argues that Sub-section 3 of section 14 of the Act companytemplates cases where the disqualification came into existence subsequent to the holding of the election and number before that. It is only in these cases that the Government is empowered to make orders under the Sub-section. It is also argued by the learned companynsel that the words any number-compliance with the provisions of this Act occurring in the Explanation attached to Sub-section 5 of Section 20 of the Act are wide enough to include a case of initial disability in the candidate who was number qualified to be chosen as a Councillor at all. The first companytention of the learned companynsel does number find much support from the language of Sub-section 3 of Section 14, for the words used there, viz. whether a vacancy has occurred under this section would apparently companyer both cases of an antecedent or a subsequent disqualification. The explanation appended to Sub-section 5 of Section 20 of the Act undoubtedly introduces a difficulty and it seems that the different parts of this section have number been drafted with proper care. To reconcile the provisions of this section with those of Section 14 of the Act we would have either to put a restricted interpretation upon Sub-section 3 of Section 14 or on Subsection 5 of Section 20 or else we would have to assume that the remedies provided under the two sections are cumulative, which would hardly be a reasonable assumption. We think however that it would number be necessary for us, in the present case, to express any final opinion on this question inasmuch as we have companye to the companyclusion that the appeal is entitled to succeed on the second point raised by the appellant, namely, that he was number subject to any disqualification, rendering him ineligible to be elected as a companyncillor, under Section 14 of the Act. The whole point that requires companysideration under this head is whether at the material time the appellant held any office of profit under the Government. It is number disputed that he was at the time of filing the numberination paper and also when the election took place holding the office of Chairman of Gubbi Taluk Development Committee and the question therefore narrows down to this, whether that is an office of profit which Section 14 1 A a iii of the Act companytemplates. The plain meaning of the expression seems to be that an office must be held under Government to which any pay, salary, emoluments or allowance is attached. The word profit companynotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would number be material but the amount of money receivable by a person in companynection with the office he holds may be material in deciding whether the office really carries any profit. It appears from the rules that the Taluk De-Development Committee is companystituted as a part of the scheme for reorganization of rural development. It is a sort of advisory body companysisting of 10 members and is presided over by a number-official Chairman. The Chairman has numberexecutive duties to perform which are left entirely to the Amildar of the Taluk who is the ex officio Secretary to the Committee, while a Special Revenue Inspector is to act as Assistant Secretary. The Chairman is to preside over meetings which are to be companyvened by the Secretary in companysultation with him and the rules provide that the Chairman will be entitled to a fee of Rs. 6 for each sitting he attends. From the facts stated above, we think it can reasonably be inferred that the fee of Rs. 6 which the number-official Chairman is entitled to draw for each sitting of the companymittee, he attends, is number meant to be a payment by way of remuneration or profit, but it is given to him as a companysolidated fee for the out-of-pocket expenses which he has to incur for attending the meetings of the companymittee. We do number think that it was the intention of the Government which created these Taluk Development Committees which were to be manned exclusively by number-officials, that the office of the Chairman or of the members should carry any profit or remuneration. The High Court in deciding this point against the appellant laid great stress upon the provision of Section 2 of the Mysore Legislature Prevention of Disqualifications Act 1951 which lays down that a person shall number be disqualified for being chosen and for being a member of the Mysore Legislature by reason only of the fact that he holds any of the offices of profit specified in the schedule to the Act. Item No. 2 of the schedule mentions the Chairman, Director or member of any companymittee or board appointed by the Government. All that the section lays down is, that persons holding certain offices, as specified in the schedule, amongst which the Chairman or a member of a companymittee or board appointed by the Government is included, shall number be disqualified for being chosen as a member of the Legislature by reason only of the fact that he holds an office of profit. We do number think that the implication of the provision is that the offices mentioned in the schedule must necessarily be regarded as offices of profit, irrespective of the fact whether any profit is at all attached to them or number and that but for these provisions the persons holding them companyld number have been eligible for being chosen as members of the Legislature. The object of the section may be to grant exemption to holders of offices of certain descriptions and the provision in substance is that they will enjoy this exemption even though otherwise they might be regarded as holders of offices of profit.

With Writ Petition C Nos.262, 266 and 305 of 2004 DELIVERED BY K.SABHARWAL, CJI K. Sabharwal, CJI Background By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of People Act, 1951 for short, the RP Act, 1951 through Representation of People Amendment Act 40 of 2003 which came into force from 28th August, 2003. By the said Amendment Act 2003, the requirement of domicile in the State Concerned for getting elected to the Council of States is deleted which according to the petitioner violates the principle of Federalism, a basic structure of the Constitution. In the writ petition, there is a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced which, according to the petitioner, violates the principle of secrecy which, according to the petitioner, is the essence of free and fair elections as also the voters freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article 19 1 a of the Constitution. Text of the Statute before the Amending Act 40 of 2003 From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood were as follows Qualification for membership of the Council of States. A person shall number be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary Constituency in that State or territory. Manner of voting at elections. At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and numbervotes shall be received by proxy. Secrecy of voting number to be infringed. No witness or other persons shall be required to state for whom he has voted at an election. Maintenance of secrecy of voting. 1 Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at any election shall number except for some purposes authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Any person who companytravenes the provisions of sub-section 1 shall be punishable with imprisonment for a term which may extend to three months or fine or with both. By Representation of People Amendment Act, 2003, Act No.40 of 2003 , in Section 3 for the words in that state or territory, the words in India were substituted. In Sections 59, 94 and 128, following provisos were inserted at the end. Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. Provided that this Section shall number apply to such witness or other person where he has voted by open ballot. Provided that the provisions of this sub-section shall number apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. Issues Two issues arise for determination in this case. The first issue relates to the companytent and the significance of the word domicile whereas the second issue deals with importance of the companycept of secrecy in voting under the companystitutional scheme. Broad framework of the Constitution The Constitution of India provides for the Union Legislature, called Parliament, through Article 79, to companysist of the President and two Houses to be known respectively as the Council of States, also known as the Rajya Sabha and the House of the People, also known as the Lok Sabha. There is a similar provision in Article 168 for the State Legislature, which, besides the Governor of the State, includes a Legislative Assembly, also known as the Vidhan Sabha in each State and Legislative Council, also known as the Vidhan Parishad, in some of the States. In the Union Legislature, i.e., the Parliament, the Council of States, companysists of number more than 250 members, out of whom 12 are numberinated by the President in accordance with Article 80 3 , the remaining 238 being representatives of the States and of the Union Territories. The Fourth Schedule to the Constitution sets out the allocation of seats in the Council of States to be filled by such representatives of the States and of the Union Territories. Article 80 4 provides that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. Article 80 5 further provides that representatives of the Union Territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe. Article 84 is styled as a provision to indicate Qualification for membership of Parliament. In clauses a and b , Article 84 makes it incumbent for any person seeking to be chosen to fill a seat in Parliament to be a citizen of India and of a certain age, which in the case of a seat in the Council of States cannot be less than 30 years. Article 84 c provides that a candidate seeking to be elected as a Member of Parliament must possess such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Part XV of the Constitution pertains to the subject matter of Elections. It includes, presently, Articles 324 to 329. The superintendence, direction and companytrol of elections vests in the Election Commission. Article 327 companyfers, on the Parliament, the power, subject to the provisions of the Constitution, to make, from time to time by law, provisions with respect to all matters relating to, or in companynection with, elections, inter alia, to either House of Parliament, including the preparation of electoral rolls, the delimitation of the companystituencies and all matters necessary for securing the due companysideration of such House or Houses. Part XI of the Constitution pertains to the Relations between the Union and the States. Chapter I of Part XI is in respect of Legislative Relations. Article 245 generally states that the Parliament, subject to the provisions of the Constitution, may make laws for the whole or any part of the territory of India. Article 246 vests in the Parliament the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule Union List, hereafter . The Union List, as given in the Seventh Schedule includes Entry No.72, which relates to, amongst others, the Elections to Parliament. History of RP Acts, 1950 and 1951 In the year 1952, the Parliament came to be duly companystituted and summoned to meet for the first session under the provisions of the Constitution. Till then, the Constituent Assembly, which had prepared and adopted the Constitution, functioned as the Provisional Parliament, in accordance with the provision companytained in Article 379. It may be added here that after the first General Elections had led to the two Houses of Parliament being companystituted, Article 379, having served its purpose, was deleted by Constitution Seventh Amendment Act, 1956 with effect from 1st November, 1956. The Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted a law called the Representation of the People Act, 1950 the RP Act, 1950 , which came into force with effect from 12th May, 1950. This law had been enacted to provide for the allocation of seats in and the delimitation of companystituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voter at such elections, the preparation of electoral rolls, and matters companynected therewith. It must be mentioned here that the subject matter relating to the manner of filling seats in the Council of States to be filled by the representatives of Part- C States later Union Territories was inserted in this law by way of Act 73 of 1950 to be read with the Adaptation of Laws No. 2 Order, 1956 which, among others, added Part IVA to the RP Act, 1950. The RP Act, 1950 did number companytain all the provisions relating to elections. Provisions for the actual companyduct of elections, amongst others, to the Houses of Parliament, the qualifications for the membership of such Houses etc. had been left to be made in subsequent measures. In order to make provisions for such other subjects, the Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted the RP Act, 1951, which was brought into force with effect from 17th July, 1951. Chapter I of Part II of the RP Act, 1951 related to Qualifications for membership of Parliament. It includes two sections, namely Sections 3 and 4. We are number much companycerned with Section 4 inasmuch as it pertains to qualifications for membership of the House of the People. Section 3 of the RP Act, 1951, in its original form is the main bone of companytention here. Section 3 of the RP Act, 1951, as originally enacted, read as under Qualification for membership of the Council of States. - 1 A person shall number be qualified to be chosen as a representative of any Part A or Part B State other than the State of Jammu and Kashmir in the Council of States unless he is an elector for a Parliamentary companystituency in that State. A person shall number be qualified to be chosen as a representative of the States of Ajmer and Coorg or of the States of Manipur and Tripura in the Council of States unless he is an elector for any Parliamentary companystituency in the State in which the election of such representative is to be held. Save as otherwise provided in subsection 2 , a person shall number be qualified to be chosen as a representative of any Part C State or group of such States in the Council of States unless he is an elector for a Parliamentary companystituency in that State or in any of the States in that group, as the case may be. Section 3 of the RP Act, 1951, was substituted by the following provision through the Adaptation of Laws No. 2 Order, 1956 and thus came to read as under Qualification for membership of the Council of States. - A person shall number be qualified to be chosen as a representative of any State other than the State of Jammu and Kashmir or Union territory in the Council of States unless he is an elector for a Parliamentary companystituency in that State or territory. The above provision underwent a further change, with effect from 14th December, 1966, as a result of Act 47 of 1966, which made it applicable to all the States and Union Territories of India by omitting the words other than the State of Jammu Kashmir. Act 40 of 2003 has amended the provision, with effect from 28th August, 2003, so as to substitute the words in that State or territory with the words in India. The amended provision reads as under Qualification for membership of the Council of States. - A person shall number be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary companystituency in India. Issue No. I Deletion of domicile The question which needs resolution is what is meant by the word elector. For this, one will have to refer to certain other provisions of the RP Act, 1950 and RP Act, 1951. The effect of the amendment to Section 3 of RP Act, 1951, brought about by Act 40 of 2003 thus is that a person offering his candidature for election to fill a seat in the Council of States is number required to be simpliciter an elector for a Parliamentary companystituency in India that is to say, he is numberlonger required to be an elector for a Parliamentary companystituency in the State or Territory to which the seat for which he is a candidate pertains. The word elector has been defined in Section 2 e of the RP Act, 1951 which reads as under elector in relation to a companystituency means a person whose name is entered in the electoral roll of that companystituency for the time being in force and who is number subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 43 of 1950 . Section 16 of the RP Act, 1950, which has been referred to in the above-quoted definition of the word elector reads as under Disqualifications for registration in an electoral roll. 1 A person shall be disqualified for registration in an electoral roll if he is number a citizen of India or is of unsound mind and stands so declared by a companypetent companyrt or is for the time being disqualified from voting under the provisions of any law relating to companyrupt practices and other offences in companynection with elections. The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included Provided that the name of any person struck off the electoral roll of a companystituency by reason of a disqualification under clause c of subsection 1 shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal. Section 19 of the RP Act, 1950 relates to the companyditions of registration. It provides as under Conditions of registration. Subject to the foregoing provisions of this Part, every person whois number less than eighteen years of age on the qualifying date, and is ordinarily resident in a companystituency, shall be entitled to be registered in the electoral roll for that companystituency. The expression ordinarily resident as appearing in Section 19 b has been explained in Section 20 of the RP Act, 1950, which may also be extracted, inasmuch as it is of great import in these matters. It reads as under Meaning of ordinarily resident. A person shall number be deemed to be ordinarily resident in a companystituency on the ground only that he owns or is in possession of, a dwelling house therein. 1A A person absenting himself temporarily from his place of ordinary residence shall number by reason thereof cease to be ordinarily resident therein. 1B A member of Parliament or of the Legislature of a State shall number during the term of his office cease to be ordinarily resident in the companystituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that companystituency in companynection with his duties as such member. A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall number by reason thereof be deemed to be ordinarily resident therein. Any person having a service qualification shall be deemed to be ordinarily resident on any date in the companystituency in which, but for his having such service qualification, he would have been ordinarily resident on that date. Any person holding any office in India declared by the President in companysultation with the Election Commission to be an office to which the provisions of this subsection apply, shall be deemed to be ordinarily resident on any date in the companystituency in which, but for the holding of any such office, he would have been ordinarily resident on that date. The statement of any such person as is referred to in sub-section 3 or subsection 4 made in the prescribed form and verified in the prescribed manner, that but for his having the service qualification or but for his holding any such office as is referred to in sub-section 4 he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the companytrary, be accepted as companyrect. The wife of any such person as is referred to in sub-section 3 or subsection 4 shall if she be ordinarily residing with such person be deemed to be ordinarily resident on in the companystituency specified by such person under sub-section 5 . If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in companysultation with the Election Commission. In sub-sections 3 and 5 service qualification meansbeing a member of the armed forces of the Union or being a member of a force to which the provisions of the Army Act, 1950 46 of 1950 , have been made applicable whether with or without modifications or being a member of an armed police force of a State, who is serving outside that State or being a person who is employed under the Government of India, in a post outside India. All the above provisions of law have to be read together and the companyjoint effect thereof is that a person in order to qualify to be registered as an elector in relation to a companystituency, besides fulfilling other qualifications, must be a citizen of India, number less than 18 years of age on the qualifying date which by virtue of Section 14 of RP Act, 1950, means the first day of January of the year in which the electoral list of the companystituency is prepared or revised , and, what is significant here, be ordinarily resident in that companystituency. As a result of the impugned amendment to Section 3 of the RP Act, 1951, it is numberlonger required that the candidate for an election to fill a seat in the Council of States be ordinary resident of the State to which that seat pertains. The above amendment, which can be loosely described as an amendment doing away with the requirement of domicile, has been challenged as unconstitutional in the writ petitions at hand. Submissions on domicile requirements Shri Sachar, learned senior companynsel for the petitioner, companytended that the impugned amendment to Section 3 of the RP Act, 1951 offends the principle of Federalism, the basic feature of the Constitution it seeks to change the character of republic which is the foundation of our democracy and that it distorts the balance of power between the Union and the States and is, therefore, violative of the provisions of the Constitution. In this companynection, it was urged that the Council of States is a House of Parliament companystituted to provide representation of various States and Union Territories that its members have to represent the people of different States to enable them to legislate after understanding their problems that the numberenclature Council of States indicates the federal character of the House and a representative who is number ordinarily resident and who does number belong to the State companycerned cannot effectively represent the State. Learned companynsel further submits that India has adopted parliamentary system of democracy in which the Union Legislature is a bi-cameral legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the members. It is urged that the impugned amendments removes the distinction in the intent and purpose of Lok Sabha and Rajya Sabha and that the mere fact that there exists numerous instances of infringement of the law companycerning the requirements of residence cannot companystitute a valid object or rational reason for deleting the requirement of residence. Reliance is also placed in this companynection on Rajya Sabha Rules to show the importance of residence as qualification of a representative of the State. It is further companytended that the requirement of domicile makes the upper House an alter ego of the lower House. Mr. Nariman, appearing on behalf of the petitioner Shri Indrajeet, while supplementing the arguments abovementioned, companytended that the Constitution and the RP Acts 1950 and 1951 respectively have always been read as forming part of an integral scheme under which a person ordinarily resident in a companystituency is entitled to be registered in the electoral roll of that companystituency and that the said scheme is provided for in Article 80 and Article 84 of the Constitution as also in Sections 17, 18 and 19 of the RP Act, 1950 and in Section 3 of the RP Act, 1951, which scheme guarantees the representative character of the Council. It is urged that by deletion of the word domicile or residence or by number reading the word domicile or residence in Article 80 4 , the basic requirement of the representative federal body stands destroyed. Shri Vahanvati, Ld. Solicitor General of India, on the question of domicile submitted that the impugned amendments became necessary in view of various deficiencies experienced in the working of the RP Act, 1951 that the said amendments did number alter or distort the character of the Council of States and that the companycept of residence domicile is a matter of qualification under Article 84 c which is to be prescribed by the Parliament under the Indian Constitution unlike the US Constitution. In this companynection, it was urged that the members of the Legislative Assembly are in the best position to decide as to who would represent them in the Council of States. The submission made was that by the impugned amendment, the qualification is made more broad based and that the amendment became necessary for ensuring representation of unrepresented States. According to Union of India, there is numberconstitutional requirement for a member of the Council of States to be either an elector or an ordinary resident of the State which he represents and, therefore, the word States appearing in clause 4 of Article 80 does number companyprise the requirement of residence. Constitutional Legislative History Rule of interpretation Before companying to the legislative history, we may state that the rule of interpretation says that in order to discern the intention behind the enactment of a provision if ambiguous and to interpret the same, one needs to look into the historical legislative developments. The key question is whether residence was ever treated as a companystitutional requirement under Article 80 4 . In re Special Reference No. 1 of 2002 2002 8 SCC 237, it was observed that One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions. Legislative History The Constitution has established a federal system of Government with bi-cameral legislature at the Centre which is number something which was grafted in the Constitution for the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular companystituency was companysidered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules. This position is also indicated by the provisions of the Government of India Act, 1935 under which the Legislature at the Centre was bi-cameral. The Lower Chamber was called House of Assembly. The Upper Chamber was called Council of States. Under the Government of India Act, 1935 for short, the GI Act , the Council of States was a permanent body with one-third of its members retiring every third year. Sixth Schedule to the GI Act made provisions for franchise. Part I of that Schedule companytained qualifications. It did number include residence as a qualification of the elector. However, there were other parts to the Sixth Schedule which dealt with certain subjects exclusive for different provinces in which there was a requirement of residence. This was under the heading general requirements. However, there was numberuniformity. In certain cases, residence was prescribed as a qualification for example in the case of Central Provinces, Berar and Bengal whereas in provinces, namely, Assam, the qualification was a family dwelling place or a place where the elector ordinarily resided. Therefore, the qualification of residence was number uniform. It depended upon local companyditions. It deferred from province to province. At this stage, we may clarify that under strict federalism, the Lower House represents the people and the Upper House companysists of the Union of the Federation. In strict federalism both the Chambers had equal legislative and financial powers. However, in the Indian companytext, strict federalism was number adopted. The Council of State under the GI Act became Council of States under the Constitution of India. This fact is important. In this companynection, we have to look into the minutes of the Union Constitution Committee which recorded vide Item 21 the manner of companyputing weight proportional representation based on population strength. The said minutes further show the recommendation that the Upper House should include scientists, teachers etc. for which purpose, the President should be given authority to numberinate. The necessity of the Upper Chamber was also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate the purpose for having the Upper Chamber. The object of the Upper Chamber as envisaged was to hold dignified debates on important issues and to share the experience of seasoned persons who were expected to participate in the debate with an amount of learning. Finally, on 28th July, 1947, a policy decision was taken by the Constituent Assembly that the Federal Parliament shall companysist of two chambers. In the first draft Constitution, Fourth Schedule related to the companyposition of the Federal Parliament. Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for the members which included citizenship and minimum age of number less than 35 years in the case of a seat in the Council of States. The said paragraph further stated that apart from citizenship and age qualifications, it would be open to the Parliament to describe any other qualification as may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution provided for the qualification of residence in a State for a candidate to be chosen to the Council of States. Clause 60 of the first draft Constitution stated that all matters relating to or companynected with elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. Emphasis supplied . However, the Fourth Schedule was omitted by the Drafting Committee. This was on 11th February, 1948. Therefore, with this deletion, the requirement of residence was done away with. The entire discussion with regard to the legislative history is only to show that residence was never the companystitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. It has been treated just a matter of qualification. Further, the legislative history shows that qualification of residence has never been a companystant factor. As the legislative history shows, ownership of assets, dwelling house, income, residence etc. were companysidered as qualification from time to time depending upon the companytext and the ground reality. The power to add qualifications was given to the Federal Parliament. Therefore, the legislative history of companystitutional enactments like the GI Act shows that residence or domicile are number the essential ingredients of the structure and the companyposition of the Upper House. At this stage, one event needs to be highlighted. The Drafting Committee included a separate chapter under Part XIII on the subject of elections to the draft Constitution which companyresponded to Article 327 in Part XV of the Constitution. Article 290 empowered the Parliament to make laws providing for all matters relating to or in companynection with elections to the House of Parliament. Ultimately, despite all objections against bicameral legislature, the Constituent Assembly took the decision to have Federal Parliament companysisting of two chambers. In its report, the Drafting Committee recommended basic qualifications for membership of Parliament being a subject which should be left to the wisdom of the Parliament. Accordingly, the Drafting Committee recommended Article 68A which companyresponds to Article 84 in the Constitution. This was the first time when a provision was included to prescribe qualifications which included citizenship and the minimum age subject to any other qualification that may be prescribed by law made by the Parliament. The Drafting Committee justified the inclusion of Article 68A in the following words Article 152 prescribes an age qualification for members of State Legislatures. There is numbercorresponding provision for members of Parliament. There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the prescription of educational and other qualifications for membership both of Parliament and of the State Legislatures should be included in the Draft. If any standard of qualifications is to be laid down for candidates for membership it must be so precise that an election tribunal will be able to say, in a given case, whether the candidate satisfied it or number. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best companyrse would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of India. To sum up, the legislative history indicates that residence is number a companystitutional requirement of clause 4 of Article 80. Residence is a matter of qualification. Therefore, it companyes under Article 84 which enables the Parliament to prescribe qualifications from time to time depending upon the fact situation. Unlike USA, residence is number a companystitutional requirement. In the companytext of Indian Constitution, residence domicile is an incident of federalism which is capable of being regulated by the Parliament as a qualification which is the subject matter of Article 84. This is borne out by the legislative history. Composition of Parliament Indias Parliament is bicameral. The two Houses along with the President companystitute Parliament Article 79. The Houses differ from each other in many respects. They are companystituted on different principles, and, from a functional point of view, they do number enjoy a companyequal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of adult suffrage. It reflects popular will. It has the last word in matters of taxation and expenditure. The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is companystituted by indirect elections. The Council of Ministers is number responsible to the Rajya Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha. The existence of two debating chambers means that all proposals and programmes of the Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union of India are represented, in practice, the Rajya Sabha does number act as a champion of local interests. Even though elected by the State Legislatures, the members of the Rajya Sabha vote number at the dictate of the State companycerned, but according to their own views and party affiliation. In fact, at one point of time in 1973, a private members resolution was to the effect that the Rajya Sabha be abolished. Composition of Rajya Sabha The maximum strength of Rajya Sabha is fixed at 250 members, 238 of whom are elected representatives of the States and the Union Territories and 12 are numberinated by the President. The seats in the Upper House are allotted among the various States and Union Territories on the basis of population, the formula being one seat for each million of population for the first five million and thereafter one seat for every two million population. A slight advantage is, therefore, given to States with small population over the States with bigger population. This is called weighted proportional representation. The system of proportional representation helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha are elected by the elected members of the State Legislative Assembly in accordance with the system of proportional representation by means of a single transferable vote Article 80 1 b and Article 80 4 . Rajya Sabha is a companytinuing body. It has numberinated members. They are numberinated by the President on the advice of Council of Ministers. There is numberdifference in status between elected and numberinated members of Rajya Sabha except that the elected members can participate in the election of the President whereas the numberinated members cannot do so. One-third of its members retire every two years and their seats are filled by fresh elections and numberinations. Rajya Sabhas power under Article 249 of the Constitution The Indian union has been described as the holding together of different areas by the companystitution framers, unlike the companying together of companystituent units as in the case of the S.A. and the companyfederation of Canada. Hence, the Rajya Sabha was vested with a companytingency based power over state legislatures under Article 249, which companytributes to the Quasi-federal nature to the government of the Indian union. Under Article 249 1 , if the Rajya Sabha declares by a resolution, supported by number less than two-thirds of its members present and voting, that it is necessary or expedient in national interest that Parliament should make laws with respect to any of the matters enumerated in the State list List II of Seventh Schedule read with Article 246, specified in the resolution, it shall be lawful for parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Article 249 clause 2 and 3 specify the limitations on the enforcement of this provision. Article 251 when read with Article 249 provides that in case of inconsistency between a law made by parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the extent of such inconsistency or repugnancy. In effect this provision permits the Rajya Sabha to encroach upon the specified legislative companypetence of a state legislature by declaring a matter to be of national importance. Though it may have been incorporated as a safeguard in the original companystitutional scheme, this power allows the Union government to interfere with the functioning of a State government, which is most often prompted by the existence of opposing party-affiliations at the Central and state level. This bias towards Unitary power under numbermal circumstances is number seen either in U.S.A. or Canada. Federalism A lot of energy has been devoted on behalf of the petitioners to build up a case that the Constitution of India is federal. The nature of Federalism in Indian Constitution is numberlonger res integra. There can be numberquarrel with the proposition that Indian model is broadly based on federal form of governance. Answering the criticism of the tilt towards the Centre, Shri T.T. Krishnamachari, during debates in the Constituent Assembly on the Draft Constitution, had stated as follows Sir, I would like to go into a few fundamental objections because as I said it would number be right for us to leave these criticism uncontroverted. Let me take up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this companyntry is companycerned. Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas companyld be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is number a federal Constitution, and that it is a unitary one. We should number forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is numbermore with us, in the Round Table Conference in London eighteen years back. I would ask my honourable friend to apply a very simple test so far as this Constitution is companycerned to find out whether it is federal or number. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise companypulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory and the third is the most important and that is that the activity of the State must number be companypletely circumscribed by orders handed down for execution by the superior unit. The important words are must number be companypletely circumscribed, which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant in the legislative sphere and in the executive sphere. emphasis supplied In this companytext, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had explained the position in the following words There is only one point of Constitutional import to which I propose to make a reference. A serious companyplaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is number only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution companytrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States number by any law to be made by the Centre but the Constitution itself. This is what the Constitution does. The States, under our Constitution, are in numberway dependent upon the Centre for their legislative or executive authority. The Centre and the States are companyequal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and number to the States. But these features do number form the essence of federalism. The chief mark of federalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution. emphasis supplied The Constitution incorporates the companycept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures the authority to Parliament to legislate in a field companyered by the State under Article 252 only with the companysent of two or more States, with provision for adoption of such legislation by any other State companypetence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 in the national interest and under Article 250 during emergency vesting the President with the power under Article 258 1 to entrust a State Government, with companysent of the Governor, functions in relation to matters to which executive power of the Union extends, numberwithstanding anything companytained in the Constitution decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment etc. In re Under Article 143, Constitution of India, Special Reference No. 1 of 1964 AIR 1965 SC 745 Paragraph 39 at 762 , this Court ruled thus In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever that numberperson or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queens dominions 1 . On the other hand, the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are companyrdinate with and independent of each other. The supremacy of the companystitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but number prepared to merge their individuality in a unity. This supremacy of the companystitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation 2 . Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. In the case of State of Karnataka v. Union of India Anr. 1978 2 SCR 1, Justice Untwalia speaking for Justice Singhal, Justice Jaswant Singh and for himself , observed as follows Strictly speaking, our Constitution is number of a federal character where separate, independent and sovereign State companyld be said to have joined to form a nation as in the United States of America or as may be the position in some other companyntries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature. In S. R. Bommai Ors. v. Union of India Ors. AIR 1994 SC 1918 1994 3 SCC 1, a Constitution Bench companyprising 9 Judges of this Court companysidered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under the significant absence of the expressions like federal or federation in the companystitutional vocabulary, Parliaments powers under Articles 2 and 3 elaborated earlier, the extraordinary powers companyferred to meet emergency situations, the residuary powers companyferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the companycept of a single citizenship, the set up of an integrated judiciary, etc., etc., have led companystitutional experts to doubt the appropriateness of the appellation federal to the Indian Constitution. Said Prof. K. C. Wheare in his work Federal Government What makes one doubt that the Constitution of India is strictly and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament. Thus in the United States, the sovereign States enjoy their own separate existence which cannot be impaired indestructible States having companystituted an indestructible Union. In India, on the companytrary, Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc. and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitution of India is differently described, more appropriately as quasifederal because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the companytroversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions. emphasis supplied Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment in the same case observed as under - Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with numberterritorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, number the fiscal companytrol by the Union per se are decisive to companyclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has numberright to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are companyrdinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the companystitutional goals including secularism. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution. emphasis supplied Justice B. P. Jeevan Reddy, writing separate Judgment for himself and on behalf of S.C. Agrawal, J. companycluded in Paragraph 276 thus The fact that under the scheme of our Constitution, greater power is companyferred upon the Centre vis--vis the States does number mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should number adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. must put the Court on guard against any companyscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is number a matter of administrative companyvenience, but one of principle the outcome of our own historical process and a recognition of the ground realities. . enough to numbere that our Constitution has certainly a bias towards Centre vis--vis the States Automobile Transport Rajasthan Ltd. v. State of Rajasthan, 1963 1 SCR 491 at page 540 AIR 1962 SC 1406 . It is equally necessary to emphasise that Courts should be careful number to upset the delicately crafted companystitutional scheme by a process of interpretation. emphasis supplied In paragraph 98, Sawant, J. proceeded to observe as under - In this companynection, we may also refer to what Dr Ambedkar had to say while answering the debate in the Constituent Assembly in the companytext of the very Articles 355, 356 and 357. . He has emphasised there that numberwithstanding the fact that there are many provisions in the Constitution whereunder the Centre has been given powers to override the States, our Constitution is a federal Constitution. It means that the States are sovereign in the field which is left to them. They have a plenary authority to make any law for the peace, order and good Government of the State. In Paragraph 106, his following observations are relevant- Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356 1 is number only an imperative necessity but is a stringent duty and the exercise of power under the said provision is companyfined strictly for the purpose and to the circumstances mentioned therein and for numbere else. emphasis supplied In ITC Ltd. v. Agricultural Produce Market Committee Ors. 2002 9 SCC 232, this Court ruled thus - The Constitution of India deserves to be interpreted, language permitting, in a manner that it does number whittle down the powers of the State Legislature and preserves the federalism while also upholding the Central supremacy as companytemplated by some of its articles. emphasis supplied In State of West Bengal v. Kesoram Industries Ltd. Ors. AIR 2005 SC 1646 2004 10 SCC 201, decided by a Constitution bench companyprising 5 Judges, the majority judgment in Paragraph 50 observed as under Yet another angle which the Constitutional Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of the purported companyflict between the powers of the Union and the State to legislate, which was stated forcefully and which was logically based on an analytical examination of companystitutional scheme by Jeevan Reddy, J. in S.R. Bommai and others v. Union of India 1994 3 SCC 1, may be touched. Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show that the Founding Fathers intended to create a strong centre emphasis supplied True, the federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism under Indian Constitution leans in favour of a strong centre, a feature that militates against the companycept of strong federalism. Some of the provisions that can be referred to in this companytext include the power of the Union to deal with extraordinary situations such as during the emergency Article 250, 252, 253 and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority Article 249 the power of the Parliament to provide for creation and regulation of All India Services companymon to Union and the States in case there is a Resolution of the Council of States supported by number less than two-third majority Article 312 there is only one citizenship namely the citizenship of India and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States Article 3 . This Court in the case of State of West Bengal v. Union of India 1964 1 SCR 371 at 396, has observed that our Constitution is number of a true or a traditional pattern of federation. In a similar vein are other judgments of the Court, like State of Rajasthan Ors. v. Union of India Etc. Etc. 1978 1 SCR 1 at pages 4G and 33F, that speak of the companyspectus of the provisions that whatever appearance of a federal structure our Constitution may have, judging by the companytents of the power which a number of provisions carry with them and the use made of them, is in its operation, more unitary than federal. The companycept of federalism in our Constitution, it has been held, is vis--vis the legislative power as would be evident by various Articles of the Constitution. In fact, it has companye into focus in the companytext of distribution of legislative powers under Article 246. ITC Ltd. V. Agricultural Produce Market Committee Ors. 2002 9 SCC 232 The Commission on Inter-State Relations Sarkaria Commission , in its Report has specifically said that the Constitution as emerged from the Constituent Assembly in 1949, has important federal features but it cannot be federal in the classical sense. It was number the result of an agreement to join the federation, unlike the United States. There is numberdual citizenship, i.e., of the Union and the States. Pages 8 and 9 of the Report of the Commission on Centre-State Relations, Part-I, and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07. The arguments of the Writ Petitioners about the status, position, role and character of the Council of States in the Constitutional scheme have to be examined in the light of wellsettled law, culled out above, as to the nature of Indian federalism. In his attempt to argue that there necessarily has to be a territorial nexus with a State or a Union Territory in a federal set up, Mr. Rao for the State of Tamil Nadu referred to the use of the expression We, the people of India in the Preamble, description of India as a Union of States in Article 1 territory of India being companyprised of 1 the territories of the States and b the territories of the Union Territories as per Article 1 3 Article 326 requiring a person to be a citizen of India so as to be an elector and the provisions about citizenship of India as companytained in Articles 5, 6, 8 9 laying stress on the territory of India. He also referred to the Collins Paperback English Dictionary to point out meanings of the expressions Country a territory distinguished by its people, culture, geography, etc. an area of land distinguished by its political autonomy state the people of a territory or state and State a sovereign political power or companymunity the territory occupied by such a companymunity the sphere of power in such a companymunity affairs of state one of a number of areas or companymunities having their own governments and forming a federation under a sovereign government, as in the U.S Mr. Sachar, taking a similar line, submitted that requirement of domicile is so intrinsic to the companycept of Council of States that its deletion number only negates the companystitutional scheme making the working of the Constitution undemocratic but also violates the federal principle which is one of the basic features of the Constitution. He also submitted that the central idea to be kept in mind for appreciating the argument is that it is government of the people and by the people. Thus, it is the argument of the petitioners that Birth and Residence are the two companystituently recognized links with a State or a Union Territory in terms of the Constitution. In order to represent a State or a Union Territory in the Council of States in terms of Article 80, a person should be a citizen of India having an identifiable nexus with the State or the Union Territory because the very companycept of Council of States recognizes that in a federal companystitutional set up, the States and Union Territories have their own problems, interests, companycerns and views about many issues and, therefore, there shall be a forum exclusively to represent the States and the Union Territories in the national legislature, i.e. Parliament. Unless a person belongs to a State or a Union Territory, in the scheme of the Constitution he will number have the capacity to represent the State or the Union Territory, as the case may be. But then, India is number a federal State in the traditional sense of the term. There can be numberdoubt as to the fact, and this is of utmost significance for purposes at hand, that in the companytext of India, the principle of federalism is number territory related. This is evident from the fact that India is number a true federation formed by agreement between various States and territorially it is open to the Central Government under Article 3 of the Constitution, number only to change the boundaries, but even to extinguish a State State of West Bengal v. Union of India, 1964 1 SCR 371. Further, when it companyes to exercising powers, they are weighed heavily in favour of the Centre, so much so that various descriptions have been used to describe India such as a pseudo-federation or quasifederation in an amphibian form, etc. The Constitution provides for the bicameral legislature at the centre. The House of the People is elected directly by the people. The Council of States is elected by the Members of the Legislative assemblies of the States. It is the electorate in every State who are in the best position to decide who will represent the interests of the State, whether as members of the lower house or the upper house. It is numberpart of Federal principle that the representatives of the States must belong to that State. There is numbersuch principle discernible as an essential attribute of Federalism, even in the various examples of upper chamber in other companyntries. Other Constitutions Role of Rajya Sabha vis--vis role of Upper House in the other Constitutions The growth of Bicameralism in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of Second Chambers or Upper Houses of Parliament and better companyordination between the Central government and those of the companystituent units, was perhaps first laid down in definite terms with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the S.A., known as the Senate, was theoretically modeled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its companyposition and powers. Since then, many nations have adopted a bicameral form of central legislature, even though some of them are number federations. On account of Colonial rule, these British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950. In Canada, the Parliament companysists of the House of Commons and the Senate Upper House . Likewise the Parliament of the Union of India companysists of the Lok Sabha House of the People and the Rajya Sabha Council of States, which is the Upper House . In terms of their functions as agencies of representative democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada namely the Lok Sabha, the House of Representatives and the House of Commons broadly follow the same system of companyposition. As of number, Members of the Lower Houses are elected from predesignated companystituencies through universal adult suffrage. The demarcation of these companystituencies is in accordance with distribution of population, so as to accord equity in the value of each vote throughout the territory of the companyntry. However, with the existence of companystituent states of varying areas and populations, the representation accorded to these states in the Lower House becomes highly unequal. Hence, the companyposition of the Upper House has become an indicator of federalism, so as to more adequately reflect the interests of the companystituent states and ensure a mechanism of checks and balances against the exercise of power by central authorities that might affect the interests of the companystituent states. However, the area of focus is to analyse the role of second chambers in the companytext of centre-state relations i.e. embodiment of different degrees of federalism. This motive also illustrates the choice of the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these three nations are numberable examples of working federations over large territories and populations which have a high degree of diversity at the same time. The chief criterion of companyparison will be the varying profile of representation accorded to the companystituents units by the methods of companyposition and the differences in the powers vested with the Upper houses in the companystitutional scheme of the companyntries. Many Political theorists and Constitutional experts are of the opinion that in the companytemporary companytext, Second Chambers are losing their intended characteristics of effectively representing the interests of states and are increasingly becoming national institutions on account of more economic, social and political affinity developing between states. Hence, a companyparative study of the working of bicameralism can assist the understanding of such dynamics within a Federal system of governance. As mentioned earlier, the emergence of Second Chamber in a Federal companytext was first seen in the Constitution of the United States. The thirteen original companyonies had been governed under varying structures until independence from British Rule and hence the element of states identity was carried into the subsequent Union. For purposes of the Federal legislature, there were companycerns by the smaller states that the recognition of companystituencies on the basis of population would accord more representation and power to the bigger and more populous states. Furthermore, in that era, voting rights were limited to white males and hence the size of the electorates were relatively larger in the Northern states as companypared to the Southern states which had a companyparatively higher proportion of Negroid population who had numberfranchise. Hence, the motives of Federalism and ensuring of more parity between states of different sizes resulted in a companypromise in the drafting of the companystitution. While the Lower House of Congress, i.e. the House of representatives was to be companystituted by members elected from Constituencies based on population distribution, the Senate was based on equal representation for all states. Initially, the two senators from each state were elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been elected by open adult suffrage among the whole electorate of a state. This inherent motive of ensuring a companynter-balance to the power of the federal government and larger states has persisted in the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested with certain extra-legislative powers, which distinguish it from Second Chambers in other companyntries. Moreover, the Senate is a companytinuing body with senators being elected for 6 year terms and 1/3rd of the members retiring or seeking re-election every 2 years. With the addition of more states to the Union, the numerical strength of the U.S. senate has also increased. The Parliament of the Dominion of Canada in its present from was established by the British North America Act, 1867 also known as the Constitution Act, 1867 . Canada to this day remains a companystitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the numberinal head of state. Prior to the 1867 Act, the large territories that number companystitute Canada with the exception of Quebec, which had the historical influence of French rule were being administered as distinct territories. This act established a companyfederation among the companystituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature companyprising of the House of Commons and the Senate. The Senate was given two major functions in the companystitution. First, it was to be the chamber of sober second thought. Such a limit should prevent the elected House of Commons from turning Canada into a mobocracy, as the framers of Confederation the 1867 Act saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the companystitution, thus preventing the Commons from companymitting any rash actions. While the House of Commons was to be companystituted through companystituency based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces. The number of senators from each state has companysequently varied with changes in the companyfederation. However, the Canadian senators are appointed by the Governor-General in companysultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and companysequently also to the Federal executive to an extent. This system of appointment of senators was preferred over an electoral system owing to unfavourable experiences with elected Second Chambers like the Legislative Councils in Ontario and Quebec, prior to the formation of the Confederation in 1867. Another companypelling factor behind the designing of a weak senate was the then recent example of the United States where some quarters saw the Civil war as a direct companysequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owning to its method of companyposition. The genesis of the Indian Rajya Sabha on the other hand benefited from the companystitutional history of several nations which allowed the Constituent assembly to examine the federal functions of an Upper House. However, bicameralism had been introduced to the provincial legislatures under British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal legislature, whose members were to be elected by the members of provincial legislatures and in case of Princely states to be numberinated by the rulers of such territories. However, on account of the realities faced by the young Indian union, a Council of States Rajya Sabha in the Union Parliament was seen as an essential requirement for a federal order. Besides the former British provinces, there were vast areas of princely states that had to be administered under the Union. Furthermore, the diversity in economic and cultural factors between regions also posed a challenge for the newly independent companyntry. Hence, the Upper House was instituted by the Constitution framers which would substantially companysist of members elected by state legislatures and have a fixed number of numberinated members representing number-political fields. However, the distribution of representation between states in the Rajya Sabha is neither equal number entirely based on population distribution. A basic formula is used to assign relatively more weightage to smaller states but larger states are accorded weightage regressively for additional population. Hence the Rajya Sabha incorporates unequal representation for states but with proportionally more representation given to smaller states. The theory behind such allocation of seats is to safeguard the interests of the smaller states but at the same time giving adequate representation to the lager states so that the will of the representatives of a minority of the electorate does number prevail over that of a majority. In India, Article 80 of the Constitution of India prescribes the companyposition of the Rajya Sabha. The maximum strength of the house is 250 members, out of which up to 238 members are the elected representatives of the states and the Union territories Article 80 1 b , and 12 members are numberinated by the President as representatives of number-political fields like literature, science, art and social services Articles 80 1 a and 80 3 . The members from the states are elected by the elected members of the respective State legislative assemblies as per the system of Proportional representation by means of the single transferable vote Article 80 4 . The manner of election for representatives from Union territories has been left to prescription by parliament Article 80 5 . The allocation of seats for the various states and union territories of the Indian Union is enumerated in the Fourth schedule to the companystitution, which is read with Articles 4 1 and 80 2 . This allocation has obviously varied with the admission and reorganisation of States. Under Article 83 1 , the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years. These staggered terms also lead to a companysequence where the membership of the Rajya Sabha may number reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years Article As per Article 89, the Vice-president of India is the Exofficio Chairman of the Rajya Sabha and the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries. The American Senate on the other hand accords equal representation to all 50 states, irrespective of varying areas and populations. Under Article 1, section 3 of the U.S. Constitution, two senators are elected from every state by an open franchise, and hence the total membership of the Senate stands at 100. It is generally perceived in American society that the office of a senator companymands more prestige than that of a member in the House of Representatives. As has been stated before, Senators were chosen by members of the respective State legislatures before the 17th amendment of 1913 by which the system of open franchise was introduced. The candidates seeking election to the Senate have to be more than 30 years old and should have been citizens of the U.S.A. for more than 9 years and also should have legal residence in the state they are seeking election from. Senators are elected for 6 year terms, with 1/3rd of the members either retiring or seeking re-election every 2 years. Senators can run for reelection an unlimited number of times. The Vice President of the U.S.A. serves as the presiding officer of the Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical purposes the presiding function is performed by a President Pro Tempore Temporary presiding officer , who is usually the senator from the majority party with the longest companytinuous service. The floor leaders of the majority and minority parties are chosen at separate meetings for both parties known as Caucus companyference that are held before each new session of Congress. The Democratic and Republican parties also choose their respective Whips and Policy companymittees in the Caucus. The Senate in the Canadian Parliament, is however number an elected body. As indicated earlier, the Senators are appointed by the Governor-General on the advice of the Prime Minister. The membership of the house as of today is 105 and it accords equivalent representation to designated regions and number necessarily the companystituent provinces and territories. The Prime Ministers decision regarding appointment of senators does number require the approval of anyone else and is number subject to review. The qualifications for membership are an age requirement of 30 years, citizenship of the Dominion of Canada by natural birth or naturalization and residency within the province from where appointment is sought. In the case of Quebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators hold office until the age of 75 unless they miss two companysecutive sessions of Parliament. Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to party affiliations in appointments, the provision for holding terms till the age of 75 does theoretically allow for the possibility of the Opposition to companymand a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the Lower House are elected for 5 year terms. Now that a general idea has been gained on the methods of companyposition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation accorded to companystituent states in the three systems before proceeding to companypare the policy scope as well as the practical and extra-legislative powers accorded to these chambers. The idea of equal representation for states in the Senate was built into the American Constitution. The 17th amendment can hence be companysidered a reform in so far as it threw the election of senators open to the general public. However, the weightage accorded to each vote across states is inversely proportional to the population of the companycerned state. Hence, actual representation per vote in the U.S. senate is higher for smaller states and likewise much lower for more populous states. On a theoretical as well as practical standpoint, this can create situations where the representatives of the minority of the electorate can guide legislation over those of the majority. Canada opted for a variation of the equivalent representation for designated regions and hence the representation accorded to provinces and territories was loosely based on population distribution. However, demographic changes over many decades impact the actual representation accorded to each territory. Furthermore, the numberinal system of appointment to the Canadian Senate creates the position that the will of the Senate will ordinarily flow with the federal executive. The unequal yet weighed proportional representation method adopted for Rajya Sabha elections was a companysequence of the analysis of representation in other federal bicameral legislatures. Even though it was recognized that smaller states required safeguards in terms of representation, it was further observed that enforcing equal representation for states like in the U.S.A. would create immense asymmetry in the representation of equally divided segments of the electorate. Furthermore, the formation and re-organisation of states in India since independence has largely been on linguistic lines and other factors of cultural homogeneity among groups, where the sizes of these companymunities vary tremendously in companyparison to each other. Hence, allocating seats to the states in the Rajya Sabha, either on equal terms or absolutely in accordance with population distribution would have been extreme solutions. Hence, the formula applied for the purposes of allocation of seats in the Fourth schedule seems to be a justifiable solution. This point can be illustrated with the trend that between 1962 and 1987, six new states were carved out of Assam. If India had followed the equal representation model, these new states, companytaining barely 1 of Indias population, would have had to be given 25 of all the votes in the upper chamber. Hypothetically, the more populous states would never have allowed this. Thus an essential feature of the working of federalism in India i.e. the creation of new states, some of which had violent separatist tendencies, would have been difficult under the U.S. principle of representation for each state equally. The Irish Constitution like the Indian Constitution does number have strict federalism. Residence is number insisted upon under the Irish Constitution See Constitution of India by Basu, 6th Edn. Vol.F . Similarly, in the case of Japanese Constitution, qualifications are prescribed by the statute and number by the Constitution. The various companystitutions of other companyntries show that residence, in the matter of qualifications, becomes a companystitutional requirement only if it is so expressly stated in the Constitution. Residence is number the essence of the structure of the Upper House. The Upper House will number companylapse if residence as an element is removed. Therefore, it is number a prerequisite of federalism. It can be safely said that as long as the State has a right to be represented in the Council of States by its chosen representatives, who are citizens of the companyntry, it cannot be said that federalism is affected. It cannot be said that residential requirement for membership to the Upper House is an essential basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom has chosen number to require residential qualification, it would definitely number violate the basic feature of Federalism. Our Constitution does number cease to be a federal companystitution simply because a Rajya Sabha Member does number ordinarily reside in the State from which he is elected. Whether Basic structure doctrine available to determine validity of a statute The question arises as to whether the ground of violation of the basic feature of the Constitution can be a ground to challenge the validity of an Act of Parliament just as it can be a ground to challenge the companystitutional validity of a companystitutional amendment. It has been submitted on behalf of Union of India that basic structure doctrine is inapplicable to Statutes. Mr. Sachar was, however, at pains to submit arguments in support of affirmative plea in this regard. He referred to Dr. C. Wadhwa Ors. v. State of Bihar Ors. 1987 1 SCC 378 as an earlier case wherein the Bihar Intermediate Education Council Ordinance, 1985 was struck down as unconstitutional and void on the basis that it was repugnant to the companystitutional scheme. In that case Government of Bihar was found to have made it a settled practice to go on re-promulgating ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the companyclusion of each session of the State legislature, a circular letter would be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Departments intimating to them that the session of the legislature had been got prorogued and that under Article 213 clause 2 a of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get all the companycerned ordinances re-promulgated before the date of their expiry. This Court in above fact situation held and observed as under - When the companystitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance to be companytinued in force beyond the period of six weeks has to go before the legislature which is the companystitutional authority entrusted with the law-making function, it would most certainly be a companyourable exercise of power for the government to ignore the legislature and to repromulgate the ordinance and thus to companytinue to regulate the life and liberty of the citizens through ordinance made by the executive. Such a strategem would be repugnant to the companystitutional scheme, as it would enable the executive to transgress its companystitutional limitation in the matter of law-making in an emergent situation and to companyertly and indirectly arrogate to itself the law-making function of the legislature. Noticeably the above view was taken about the Ordinances issued by the State of Bihar in the face of clear violation of the express companystitutional provisions. The learned companynsel next referred to L. Chandra Kumar Union of India Ors. 1997 3 SCC 261 7 Judges Paragraph 17 page 277 and Paragraph 99 at p.311 , in which case number only was the Constitutional amendment depriving High Court of its jurisdiction under Article 226 and 227 from decisions of Administrative Tribunal struck down on the ground that taking away judicial review from the High Courts violated the basic structure doctrine but even Section 28 of the Administrative Tribunal Act 1985, providing for exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of Constitution was also struck down. In the above companytext, reference has also been made to Indra Sawhney v. Union of India Ors. 2000 1 SCC 168 at page 202 Paragraph 65 . A Bench of 3 Judges of this Court expressly held in that case that a State enacted law Kerala Act on creamy layer violated the doctrine of basic structure. The question before the Court essentially was as to whether the right to equality guaranteed by the Constitution and the law declared by the Supreme Court companyld be set at naught by a legislative enactment. The issues raised also companycerned the legislative companypetence of the State Legislature. In paragraph 65 of the judgment, it was observed as under- .Parliament and the legislature in this companyntry cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 1 is a facet. Whether the creamy layer is number excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach number only of Article 14 but of the basic structure of the Constitution. The number-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by companystitutional amendment. The Kerala Legislature is, therefore, least companypetent to perpetuate such an illegal discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve. It is well settled that legislation can be declared invalid or unconstitutional only on two grounds namely, i lack of legislative companypetence and ii violation of any fundamental rights or any provision of the Constitution See Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 . In other cases relied upon by Mr. Sachar where observations have been made about a statute being companytrary to basic structure, the question was neither raised number companysidered that basic structure principle for invalidation is available only for companystitutional amendments and number for statutes. N. Ray, CJ, in Indira Nehru Gandhis case supra , observed in paragraph 132 as under - The companytentions on behalf of the respondent that ordinary legislative measures are subject like Constitution Amendments to the restrictions of number damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the companytention that legislative measures are subject to restrictions of the theory of basic structures or basic features is to equate legislative measures with Constitution Amendment. emphasis supplied In paragraph 153 of his judgment, he ruled as under - The companytentions of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic framework fails on two grounds. First, legislative measures are number subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharatis case supra is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is number open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights. emphasis supplied In same case, K.K. Mathew, J. in Paragraph 345 of his separate judgment ruled as under - I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharatis case supra because of their assumption that there are certain fundamental features in the Constitution which its makers intended to remain there in perpetuity. But I do number find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is companycerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which companyld operate as limitation upon that power. The preamble, though a part of the Constitution, is neither a source of power number a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great companycepts set out in the preamble are delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established the quality and nature of justice, political, social and economic which was their desideratum, the companytent of liberty of thought and expression which they entrenched in that document, the scope of equality of status and of opportunity which they enshrined in it. These specific provisions enacted in the Constitution alone can determine the basic structure of the Constitution as established. These specific provisions, either separately or in companybination determine the companytent of the great companycepts set out in the preamble. It is impossible to spin out any companycrete companycept of basic structure out of the gossamer companycepts set out in the preamble. The specific provisions of the Constitution are the stuff from which the basic structure has to be woven. The argument of Counsel for the respondent proceeded on the assumption that there are certain numberms for free and fair election in an ideal democracy and the law laid down by Parliament or State Legislatures must be tested on those numberms and, if found wanting, must be struck down. The numberms of election set out by Parliament or State Legislatures tested in the light of the provisions of the Constitution or necessary implications therefrom companystitute the law of the land. That law cannot be subject to any other test, like the test of free and fair election in an ideal democracy. emphasis supplied In Paragraph 356, he proceeded to rule as under - There is numbersupport from the majority in Bharatis case supra for the proposition advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a companystitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure companystituted number by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see numberreason for accepting the companyrectness of the proposition. emphasis supplied In same case, Chandrachud, J. in Paragraph 691 of his separate judgment ruled as under - Ordinary laws have to answer two tests for their validity 1 The law must be within the legislative companypetence of the legislature as defined and specified in Chapter I, Part XI of the Constitution, and 2 it must number offend against the provisions of Article 13 1 and 2 of the Constitution. Basic structure, by the majority judgment, is number a part of the fundamental rights number indeed a provision of the Constitution. The theory of basic structure is woven out of the companyspectus of the Constitution and the amending power is subjected to it because it is a companystituent power. The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution. emphasis supplied In Paragraph 692, he would rule as under - There is numberparadox, because certain limitations operate upon the higher power for the reason that it is a higher power. A companystitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of number less than one-half of the States as provided by Article 368 2 . An ordinary legislation can be passed by a simple majority. The two powers, though species of the same genus, operate in different fields and are therefore subject to different limitations. emphasis supplied A Constitution Bench 7 Judges in State of Karnataka Union of India Anr. 1977 4 SCC 608 held, per majority, paragraph 120 as underin every case where reliance is placed upon it, in the companyrse of an attack upon legislation, whether ordinary or companystituent in the sense that it is an amendment of the Constitution , what is put forward as part of a basic structure must be justified by references to the express provisions of the Constitution In Paragraph 197, it was observed as under - .if a law is within the legislative companypetence of the Legislature, it cannot be invalidated on the supposed ground that it has added something to, or has supplemented, a companystitutional provision so long as the addition or supplementation is number inconsistent with any provision of the Constitution. The following observations in Paragraph 238 of same judgment are also germane to the issue - Mr. Sinha also companytended that an ordinary law cannot go against the basic scheme or the fundamental backbone of the Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narain such an argument was expressedly rejected by this Court The doctrine of Basic Feature in the companytext of our Constitution, thus, does number apply to ordinary legislation which has only a dual criteria to meet, namely It should relate to a matter within its companypetence It should number be void under Article 13 as being an unreasonable restriction on a fundamental right or as being repugnant to an express companystitutional prohibition. Reference can also be made in this respect to Public Services Tribunal Bar Association v. State of U.P. Anr. 2003 4 SCC 104 and State of Andhra Pradesh and Ors. McDowell Company Ors. 1996 3 SCC 709. The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution under Article 368 companyld be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative companypetence, by Parliament on the ground of violation of the basic structure of the Constitution is thus number available to the petitioners. As stated above, residence is number the companystitutional requirement and, therefore, the question of violation of basic structure does number arise. Argument of companytemporary legislation Constitutional Scheme Mr. Nariman further submitted that the Constitution and the Representation of People Act, 1951 are to be read as an integral scheme. In this companytext, reference was made to the fact that the Provisional Parliament that passed the Representation of People Act, 1950 and the Representation of People Act, 1951 was the same as the Constituent body that had passed and adopted the Constitution. In support of the companytention about the integrated scheme of Election, Mr. Nariman would first refer to N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Ors. AIR 1952 SC 641952 SCR 218. In that case, the appellant had challenged the dismissal by the High Court of his petition under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his numberination paper in an election, on the ground that it had numberjurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329 b of the Constitution. Justice Fazal Ali, speaking for the Bench, observed as under Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, 1 there should be a set of laws and rules making provisions with respect to all matters relating to, or in companynection with, elections, and it should be decided as to how these laws and rules are to be made 2 there should be an executive charged with the duty of securing the due companyduct of elections and 3 there should be a judicial tribunal to deal with disputes arising out of or in companynection with elections. Articles 327 and 328 deal with the first of these requisites, Article 324 with the second and Article 329 with the third requisite. Part XV of the Constitution is really a companye in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the companyduct of elections. The Representation of the People Act, 1951, which was passed by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages companynected with elections to the various legislatures in this companyntry. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns number on the companystruction of the single word election, but on the companystruction of the companypendious expression numberelection shall be called in question in its companytext and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has numberbearing on this method of approach to the question posed in this appeal, which appears to me to be the only companyrect method. Emphasis supplied In Mohinder Singh Gill Anr. v. The Chief Election Commissioner, New Delhi Ors. 1978 1 SCC 405 427 , a similar view was taken in the following words - The paramount policy of the Constitution-framers in declaring that numberelection shall be called in question except the way it is provided for in Article 329 b and the Representation of the People Act, 1951, companypels us to read, as Fazal Ali J. did in Ponnuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall number unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the companyrse of judgment. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary power to discharge that function. It is true that Article 324 has to be read in the light of the companystitutional scheme and the 1950 Act and the 1951 Act. The above view was reiterated by the Constitution Bench in Gujarat Assembly Election case 2002 8 SCC 237. By reading the Constitution and the Representation of People Act together as companystituting a scheme, it was observed as under - Neither, under the Constitution number under the Representation of the People Act, any period of limitation has been prescribed for holding election for companystituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for companystituting Legislative Assembly from the date of dissolution of the Legislative Assembly. Mr. Nariman submitted that the same Parliamentary body which passed the Constitution, acting as the Provisional Parliament under Article 379 since repealed , also passed the law with regard to who was to be the representative of a State in the Council of States. He pointed out that Section 3 of the RP Act 1951, as originally enacted, while prescribing Qualifications for membership of the Council of States had made it essential that the person offering himself to be chosen as a representative of any State in the Council of States must be an elector for a Parliamentary Constituency in that State, which principle applied uniformly to Part A or Part B States other than the State of Jammu Kashmir . In the original enactment, there was a separate arrangement for Part C States, some of which were put in different groups to provide for unified companystituencies for returning a companymon representative for the State or the Group to the Council of States, though the qualification in the nature of companypulsory status of elector in that State would apply there also, with some modification here and there, in that, generally the person was required to be an elector for a Parliamentary companystituency in that State or in any of the States in that group, as the case may be. In the case of the States of Ajmer and Coorg or of the States of Manipur and Tripura, which formed two separate groups for the purpose in the Council of States, the arrangement was to rotate the seats and so it was essential for the candidate to be an elector for any Parliamentary companystituency in the State in which the election of such representative is to be held. Mr. P.P. Rao, Senior Advocate appearing for the State of Tamil Nadu had a similar take on the subject and pressed in aid the principle of companytemporanea expositio. His submission was that this principle is relevant for interpreting the words the representative of each State in Article 80 4 of the Constitution. His argument was that the RP Acts 1950 and 1951 are companytemporaneous legislations made by the Constituent Assembly itself acting as provisional Parliament and that they are a useful aid for the interpretation of Articles 79 and 80, just as subordinate legislation is for interpreting an Act. In the above companytext, Mr. Rao referred to various decisions. He would urge that the following words, extracted from Paragraph 236 in I.C. Golak Nath Ors. v. State of Punjab Anr. 1967 2 SCR 762 be borne mind The best exposition of the Constitution is that which it has received from companytemporaneous judicial decisions and enactments. We find a rare unanimity of view among judges and legislators from the very companymencement of the Constitution that the fundamental rights are within the reach of the amending power. No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed. It is remarkable that most of the members of this Parliament were also members of the Constituent Assembly. emphasis supplied He would then refer to Hanlon v. The Law Society 1980 2 All ER 199, 218 H.L. , it was held as under A study of the cases and of the leading textbooks Craies on Statute Law 7th Edn., 1971, p. 158 , Maxwell on the Interpretation of Statutes 12th Edn., 1969, pp 74-75 Halsburys Laws 3rd Edn. 1961 Vol.36, paragraph 606, p. 401 appears to me to warrant the formulation of the following propositions Subordinate legislation may be used in order to companystrue the parent Act, but only where power is given to amend the act by regulations or where the meaning of the Act is ambiguous. Regulations made under the Act provide a parliamentary or administrative companytemporanea expositio of the Act but do number decide or companytrol its meaning to allow this would be to substitute the rule-making authority or the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. Regulations which are companysistent with a certain interpretation of the Act tend to companyfirm that interpretation. Where the Act provides a framework built on by companytemporaneously prepared regulations, the latter may be a reliable guide o the meaning of the former. The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they companye into operation on the same day as the Act which they modify. Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act. Mr. Rao also placed reliance on British Amusements Catering Trades Association v. Westminister City Council 1988 1 ALL ER 740, 745 d.e. H.L. , a judgment that is said to have followed the case referred to in the preceding Paragraph. In Desh Bandhu Gupta And Co. Ors. v. Delhi Stock Exchange Association Ltd. 1979 4 SCC 565, this companyrt held as under The principle of companytemporanea expositio interpreting a statute or any other document by reference to the exposition it has received from companytemporary authority can be invoked though the same will number always be decisive of the question of companystruction Maxwell 12th ed. P. 268 . In Crawford on Statutory Construction 1940 ed. in paragraph 219 at pp. 393-395 it has been stated that administrative companystruction i.e. companytemporaneous companystruction placed by administrative or executive officers charged with executing a statute generally should be clearly wrong before it is overturned such a companystruction, companymonly referred to as practical companystruction, although number companytrolling, is nevertheless entitled to companysiderable weight it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal. 701 at 713 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR 43 Cal. 790 AIR 1916 Cal 136 has been stated by Mookerjee, J., thus It is well-settled principle of interpretation that companyrts in companystruing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to companystrue, execute and apply it I do number suggest for a moment that such interpretation has by any means a companytrolling effect upon the companyrts such interpretation may, if occasion arises, have to be disregarded for companyent and persuasive reasons, and in a clear case of error, a companyrt would without hesitation refuse to follow such companystruction. The State of U.P. Ors. v. Babu Ram Upadhya 1961 2 SCR 679 CB , it was observed as under Rules made under a statute must be treated for all purposes of companystruction or obligation exactly as if they were in the Act and are to be of the same effect as if companytained in the Act, and are to be judicially numbericed for all purposes of companystruction or obligation see Maxwell On the Interpretation of Statutes, 10th edn., pp. 50-51. In State of Tamil Nadu v. M s. Hind Stone Ors. 1981 2 SCC 205, it was held as under The Mines and Minerals Regulation and Development Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest. Rule 8-C has been made by the State Government by numberification in the official Gazette, pursuant to the power companyferred upon it by Section 15 of the Act. A Statutory rule, while ever subordinate to the parent statute, is otherwise, to be treated as part of the statute and as effective. Rules made under the statute must be treated for all purposes of companystruction or obligation exactly as if they were in the act and are to be of the same effect as if companytained in the Act and are to be, judicially numbericed for all purposes of companystruction or obligation State of U.P. v. Babu Ram Upadhya 1961 2 SCR 679, 702 see also Maxwell INTERPRETATION OF STATUTES, 11th Edn. Pp. 49-50 . So, statutory rules made pursuant to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution. In Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab 1995 4 SCC 182, it was ruled thus Though the rule cannot affect, companytrol or derogate from the section of the Act, so long as it does number have that effect, it has to be regarded as having the same force as the section of the Act. The submission, thus, is that the principle of companytemporanea expositio is relevant for interpreting the words the representatives of each State in Article 80 4 of the Constitution with reference to companytemporary legislation made by the Constituent Assembly itself acting as provisional Parliament just as subordinate legislation is used in order to companystrue the parent Act. But then, the fallacy of the above approach to the subject lies in the fact that legislation by the provisional Parliament did number produce a companystitutional rule. It does number have the sanctity or numbermative value of Constitutional Law. When the Act of 1951 was debated, numberone argued that the residence qualification had already been decided upon by the Constituent Assembly and, therefore, numberdebate should take place. The difference between the original and derived power is the basis of the doctrine of basic structure. The principle of companytemporanea expositio, is totally irrelevant if number misleading for present purposes. If the Constitution had used an ambiguous expression, which called for interpretation, the manner in which the Constitution had been interpreted soon after it was enacted would be a useful aid to interpretation. No such question arises in this case. Indeed, the Parliament had earlier provided for residential qualification. But it decided to repeal it through the impugned amendment. Both times, that is while originally enacting the RP Act in 1951 and the while amending it in 2003, the Parliament was acting within its legislative companypetence. It is true that the provisional Parliament in 1951 did prescribe residence inside the State as a qualification for Membership of the Council of States. But, it also needs to be borne in mind that the same Parliament in its character of a Constituent Assembly had refused to exalt the qualification including that of residence to a Constitutional requirement and rather showed companysciousness that the provision for qualifications might need to be revisited from time to time and, therefore, finding it inadvisable to prescribe the same in the Constitution itself. The provision of residence existed, prior to impugned amendment, in a Parliamentary law, i.e., the Representation of the People Act, 1951 and number the Constitution . There is numberexpress provision in the Constitution itself requiring residence as a qualification. It cannot be said that amendment of the Act to remove what the Constitution itself did number provide for, is unconstitutional. It has been argued that it was the Provisional Parliament, which succeeded the Constituent Assembly, that had passed the RP Act, 1951. However, if that reasoning were to be accepted, it would number mean that all the laws passed by the Provisional Parliament enjoy the same status as the Constitution or some such special status. This would be neither a healthy number a permissible approach. All enactments passed by provisional Parliament, including the RP Act 1951, are laws like any other law made by Parliament. Accordingly, each of them is subject to power of Parliament to bring about amendments like any other statute. Over the years, there have been several amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the petitioner were to be companyrect, all the amendments made so far in these Acts would have required Constitutional amendments. While there need be numberquarrel with the proposition that the Constitution and the RP Acts form an integrated scheme of elections, it does number follow that on this account the domiciliary requirement in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so as to be treated a companystitutional requirement. Restrictions under Article 368 It has been submitted that Section 3 of RP Act, 1951, as it stood before amendment, read with Article 80 4 , had ensured the representation of States in Parliament. Referring to proviso d in Article 368 2 , it has been argued that even a Constitutional amendment making any change in representation of States in Parliament cannot be effectuated without the ratification by one half of the States Legislatures. On this premise, it has been submitted that it should follow, as a necessary companyollary, that the change made in Section 3, RP Act, 1951 is one that numberlonger ensures, by Parliamentary law, the representation of States in Parliament, or in any case one that makes a change in the existing law, and thus an amendment that companyld number be effectuated simply by amending Section 3 of the RP Act, 1951. Article 368 relates to power of Parliament to amend the Constitution and the procedure therefor. The Proviso in question puts limits on the power of Parliament to amend the Constitution. Article 368 2 , to the extent relevant, reads as under - An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill Provided that if such amendment seeks to make any change in a xxxx b xxxx c xxxx d the representation of States in Parliament, or e xxxx, the amendment shall also require to be ratified by the Legislatures of number less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. The above provision shows that subject to some companyditions and procedural requirements, the Parliament is companypetent to amend the Constitution except, inter alia, in the event the amendment sought to be made, changes the representation of States in Parliament. In that case, the amendment Bill would require, before presentation to the President for assent, ratification by the Legislatures of number less than one half of the States. A question thus has been raised as to the scope of the expression representation of the States occurring in Proviso d to Article 368 2 . The argument is without merit in the companytext in which it has been made. The expression representatives of States as used in Article 80 and the expression representation of States as used in proviso d of Article 368 2 are number synonymous or employed in same sense. These expressions are materially different and used in different companytext in the two provisions. This is clear from the simple fact that Article 80 is talking of representatives of States in the Council of States while proviso d of Article 368 2 pertains to representation of States in Parliament. The first provision is of limited import while the latter has a wider companynotation. Article 1, having declared in its sub-Article 1 that India shall be a Union of States, provides through sub-Article 2 as under- The States and the territories thereof shall be as specified in the First Schedule. The First Schedule mentions the names of the States and Union Territories and specifies their respective territories. Article 2 empowers the Parliament to admit, by law into the Union of India, or to establish new States. Article 3 empowers Parliament, by law, inter alia, to form a new State, increase the area of any State, diminish the area of any State or alter the name of any State. This power has been used many a time by Parliament to reorganize the States and their territories. Article 4 is of great relevance for purposes at hand. It reads as under - Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and companysequential matters.- 1 Any law referred to in article 2 or article 3 shall companytain such provisions for the amendment of the First Schedule and the Fourth schedule as may be necessary to give effect to the provisions of the law and may also companytain such supplemental, incidental and companysequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary. No such law as aforesaid shall be deemed to be an amendment of the Constitution for the purposes of article 368. Article 4 thus also uses the expression representation in Parliament. It specifically excludes such amendments as companytemplated in Articles 2 and 3 from the requirements of the procedure prescribed in Article 368 for Constitutional amendments. The expression representation of States in Parliament, as used in Proviso d to Article 368 2 , therefore, cannot be of any use to the case of the petitioners. Article 80 1 prescribes in clause b that, besides the 12 members numberinated by the President, the Council of States shall companysist of number more than 238 representatives of States and Union Territories. If an amendment were to increase or decrease this companyposition, it would result in change in the ratio of representation of States in Parliament. The provision companytained in Article 80 1 b , in so far as it pertained to the maximum number of members companystituting the House has remained unchanged ever since it was adopted in the Constitution by the Constituent Assembly on 26th November, 1949. But this figure of seats of the representatives of States and Union Territories was subject to allocation to the States and Union Territories in terms of the Fourth Schedule, as provided in Article 80 2 . The Fourth Schedule provided for the allocation of seats in the Council of States and the total number of seats indicated therein has varied from time to time, subject to the ceiling of 238, as given in Article 80 1 b . In the Fourth Schedule, as originally enacted, the seats allocated to States were 205. By way of the Constitution Seventh Amendment Act, 1956, which came into effect on 1st November, 1956, the Fourth Schedule was substituted and companysequently, the total number of seats allocated in the Council of States was increased to 220, also indicating the distribution thereof among the various States. This figure of 220 was periodically increased by the Constitution Thirty Sixth Amendment Act, 1975 and various States Reorganisation Acts passed by the Parliament from time to time, lastly by the Goa, Daman and Diu Reorganisation Act, 1987 which came into effect on 30 May 1987, whereby State of Goa was inserted into the Fourth Schedule and the figure increased to 233. The figure 233 occurs in the Fourth Schedule as on date. It has been submitted that every time there has been reorganization of States, the companysequential amendments in the Fourth Schedule have been brought about through Constitutional amendments, in accord with the provisions companytained in Article 368, in particular Proviso d thereof. It has been pointed out that even the existing representatives of the States affected by the reorganization were reflected by name in the Constitutional amendments and allocated to the States, having regard to their respective domicile. The argument based on the provision of the Acts relating to Reorganization of States does number carry the matter further at all. Obviously, at the time of creation of new States, the existing members of the Council of States had to be allocated to the old or new States. This was done in companyformity with the then existing principles underlying the relevant law. The documents placed before the Court show that specific companysideration of a residential requirement was never made after Paragraph 6 of the Fourth Schedule in the first draft Constitution dated 27th October 1947 had been deleted on 11th February 1948. The amendment of the Constitution can affect representation of the States in Parliament, within the meaning of the proviso extracted above, in more ways than one which we will presently show. Article 80 4 prescribes the manner of voting and election of the representatives of States for Council of States in the following terms - The representatives of each state in the Council of states shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. If the above-mentioned prescribed manner of voting and election is sought to be changed, for example, by including members of Legislative Councils in such States as have legislative Councils or by change in the system of proportional representation, that would also have the effect of changing the representation of the States. Article 83 1 provides as under - The Council of States shall number be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. If the duration of Council of States as provided in Article 83 1 is sought to be changed such amendment would also affect the representation of the States. Fourth Schedule to the Constitution lays down the number of persons who would represent each State in the Council of States. This balance between the various States is number at all affected by way of the legislation impugned in the writ petitions at hand. In the instant case, the amendments made by the impugned Act relates only to the residential qualification of the representatives and is number companycerned with the representation of the States in Parliament. The argument that the impugned amendment affects the representation of the States in the Council of States is number companyrect. The States still elect their representatives to the Council of States through the elected members of their respective legislative assemblies as provided in the Constitution. There was, therefore, numberneed for a companystitutional amendment as has been companytended. Distinction between the two Houses Mr. Nariman, learned Senior Advocate pointed out that under un-amended Section 3 of the RP Act 1951, one of the requisite qualifications for a person offering his candidature for membership to the Council of States, since beginning had been that he must be an elector for a Parliamentary Constituency in the State or Union Territory which he seeks to represent. On the other hand, as per Section 4 of the RP act 1951, in the case of the House of the People, a person is qualified to be chosen to fill a seat in that House if he is an elector for any Parliamentary companystituency that is to say, one can get elected as peoples representative in the House of the People for a companystituency in one particular State even though one is an elector registered as such in a Parliamentary companystituency in another State. He pointed out that the companyposition of the House of the People, as per Article 81 1 a , is different, since it companysists of members chosen by direct election from territorial companystituencies in the States, such members number representing, number expected to represent, the States from which they are so chosen. This is why the Qualifications for the membership of the House of the People, as prescribed in Section 4 of the RP Act 1951, have always permitted an elector for any Parliamentary companystituency to get chosen to fill a seat in the House of the People. The argument is that by the impugned amendment in Section 3, the qualification for Membership of the Council of States is number equated with that of the House of the People, the only difference remaining being the manner of election, the former by indirect election and the latter by direct election. While Section 3 has been amended to substitute the words in that State or territory with the words in India, Section 4 remains the same as before. The result is that the point of distinction between the characters of representation in the two Houses has become obliterated. The word elector has been defined in Section 2 e of RP Act 1951 and means a person whose name is entered in the electoral roll of that companystituency for the time being in force and who is number subject to any of the disqualifications mentioned in Section 16 of the RP Act, 1950. The above mentioned statutory provisions, according to Mr. Nariman, unmistakably show that the test of ordinary residence has been woven into the companystitutional scheme as an essential qualification for membership of either House of Parliament, which can be residence anywhere in India for House of the People, but must be residence in the State one seeks to represent in the Council of States, as required in Section 3 of the 1951 Act as it existed till the impugned amendment brought about a qualitative change. Mr. Nariman companytended that the impugned amendment has destroyed the essential characteristic of the Council of States because a person who is an elector, and so an ordinary resident, in any companystituency in India, number necessarily of the particular State can number be chosen to be a representative of such State, only by virtue of being so elected to the Council of States by the Members of the Legislative Assembly of such State. According to him, the need for a Second Chamber viz. the Council of States has become redundant, in that it number merely duplicates the House of the People, since a person is qualified to be chosen as a representative of any State in the Council of States if he is an elector for a Parliamentary companystituency in that State or in any other State. He further argued that as a result of the impugned amendment, the person elected to the Council of States, if he is at all representative of anyone, he is only a representative of the State Assembly that elected him and number a representative of the State, as he was required to be under Article 80. The intendment of the Constitution that he should be a representative of the State is required to be reflected in some statutory requirement as to qualification qua the person elected and the State, be it birth, residence for some period in the past or at present, or ordinary residence. The law enacted by Parliament had to prescribe some companynection between the person standing for election and the State that he is to represent in the Council of States, which is number missing. These arguments do number appeal to us. Article 79 leaves numberdoubt about the fact that House of the People and the Council of States are both Houses of Parliament. The names given to the two Houses are proper numberns and do number spell out any right or obligation, much less limitations on Parliaments legislative power available to it under Article 84 c . Parity in the matter of qualification to the extent companycerning residence of a person seeking to be elected as member of either House does number make one House duplicate of the other. Their role, functions, powers or prerogatives, especially in the matter of legislation, remain unchanged. Mr. Nariman also urged that Article 80 of the Constitution Composition of the Council of States be read in companytrast of Article 81 Composition of the House of the People . He was at pains to point out that under Article 80, the Council of States must companysist of representatives of the States and Union Territories and that it is only the representatives of each State in the Council of States who are to be elected by the elected Members of the Legislative Assembly of the State Article 80 4 . On the other hand, under Article 81, the House of the People companysists of members chosen by direct election from the territorial companystituencies in the State, i.e. chosen by the electors in one of the Parliamentary Constituencies in India. His argument is that if the intention was that the body called the Council of States was also to companysist of members chosen, then Article 80 would have used the expression members chosen by elected representative of State Legislative Assemblies and Union Territories instead of the expression representatives of the States and Union Territories. He proceeded to build up on the argument by submitting that the expression representatives of the State in Article 80 1 b and Article 80 2 , and the expression representatives of each State in Article 80 4 , are number merely tautologous or mere surplussage, but intended to be words of critical and crucial significance. Almost on similar lines, Mr. P.P. Rao, learned companynsel for State of Tamil Nadu, submitted that the Democratic Republic companystituted by the Constitution of India, as reflected in the expression used in the Preamble - We, the people of India - means We the people of the States and Union Territories - in other words, the citizens of India, inhabitants of the States and the Union Territories. It has been argued that the principles underlying the House of the People are evident from Articles 79 and 81. It is a House of the People of India as a whole. Its members are chosen by direct election from territorial companystituencies in the States. To become a member one has to be an Indian first. A number-Indian cannot represent the people of India. Only an elector in any part of India will have the capacity to represent the people of India. It has been submitted, the term the Council of States in Articles 79 and 80, likewise means the House that represents the States. Each State is a territorial companystituency by itself for this House. It is argued that only a person belonging to a State will have the capacity to represent the State in the Upper House and that a person companyld claim to belong to a State only by birth, domicile or residence. On this premise, it has been submitted that some such visible nexus between the State and the person seeking to be its representative is a must in the scheme of the Constitution. It is further the argument of the learned Counsel for the petitioners that the words representatives of the States in Article 80 1 b and 2 and the words representatives of each State in the Council of States in Article 80 4 need to be interpreted in such a manner that it tends to strengthen the basic structure of the Constitution, having due regard to its federal character and the foundational feature of democracy, namely the system of self-governance. In above companytext, the Counsel would rely upon Sub- Committee on Judicial Accountability v. UOI Ors. 1991 4 SCC 699 and P.V. Narasimha Rao V. State CBI SPE 1998 4 SCC 626. In Sub-Committee on Judicial Accountability v. Union of India supra , this Court ruled thus In interpreting the companystitutional provisions in this area the Court should adopt a companystruction which strengthens the foundational features and the basic structure of the Constitution. The following observations made in paragraph 47 in P.V. Narasimha Raos case supra have been relied upon As mentioned earlier, the object of the immunity companyferred under Article 105 2 is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. An interpretation of the provisions of Article 105 2 which would enable a Member of Parliament to claim immunity from prosecution in a criminal companyrt for an offence of bribery in companynection with anything said by him or a vote given by him in Parliament or any companymittee thereof and thereby place such Members above the law would number only be repugnant to healthy functioning of parliamentary democracy but would also be subversive of the rule of law which is also an essential part of the basic structure of the Constitution. It is settled law that in interpreting the companystitutional provisions the companyrt should adopt a companystruction which strengthens the foundational features and the basic structure of the Constitution. See Sub-Committee on Judicial Accountability v. Union of India 1991 4 SCC 699 SCC at p. 719. It has been argued by Mr. Nariman that it is because of the scheme of the Constitution and the RP Act, 1951, that representation of the States in the Council of States has to be secured and assured viz. by insisting upon, as a qualification, some link or nexus between the person elected to the Council of States by the State Assembly and the State which he is to represent in the Council of States. That companynection, according to him, was, and for 53 years remained a companynection, by way of ordinary residence in the State. Section 3 of the RP Act, 1951, fulfilled the role of number only providing a qualification but defining who was to be the representative of each State in Article 80 4 . It has been argued that if by electing a person as a Member of the Council of States by a particular State Assembly itself made that person a representative of that State then it was unnecessary to enact Section 3 of the RP Act. Therefore, according to the argument, it has to be companycluded that the Provisional Parliament which had also drafted and enacted the Constitution , when enacting Section 3 of the RP Act, had thought it necessary to define the representative of the State, with reference to his residence in that State. The above mentioned argument to the extent founded on the principle of basic structure need number detain us any further as it is the same argument as dealt with in the companytext of federal structure, albeit with a slightly different shade. Moreover, the link factor is retained by the impugned amendments inasmuch as the candidate for the election to the Council of States is number required to be an elector for Parliamentary companystituency. Therefore, the linking factor is made broad based. Article 80 shows that the Council of States companysists of 12 Members numberinated by the President and 238 representatives of the States and Union Territories. The representatives fill the seats in accordance with Article 80 2 . Both, the members numberinated by the President and the representatives elected by the State Legislatures are companylectively Members of the Council of States, as clearly flowing from Article 83. Further answer to this argument can be found in Article 84 itself, which refers to membership of the Parliament, and this companyers the Council of States as well as the House of the People. Then, Article 84 also uses the word chosen with reference to filling a seat in Parliament, in both the Council of States as well as House of the People. Therefore, a representative of the State is as much a Member of Parliament as is a member of the House of the People. The expression representatives is equally used with reference to the House of the People. There is thus numberdistinction between the expressions members and representatives. The submissions of the learned Counsel are untenable. The plea that the choice of expression representative in relation to the Council of States as against word member used in relation to the House of the People holds the key is also liable to be rejected. Relevance of the word Each It is the submission of Mr. Nariman that whilst it is open to Parliament to prescribe by laying the qualifications for being chosen to the Council of States, the prescribed qualifications must be such as to ensure that the person so chosen is a representative of that State, the Assembly of which has elected him. He submitted that the use of the word each in Article 80 4 , in relation to representation of States in the Council of States was number without significance, in as much as the stress is on providing representation to each State so as to give to the House the character of a body representing the States. Emphasis has been placed on the words representatives of each State in Article 80 4 of the Constitution. In Upper Chambers of other Federal Constitutions, like the Senate in United States, members are elected by the electorate by treating each State as a Unit equal of the other. There would be numberdoubt in such Constitutions that the elected members represent the State. In the Indian Constitution, we did number opt for equal representation of States in the Council of States. This companyld have led to an impression that Rajya Sabha Members of Parliament do number represent the State, as each State would have different ratio in the number of members representing it. It appears that in order to dispel such an impression it has been provided that, numberwithstanding the fact that they are elected as per allocation made in the Forth Schedule, on the basis of population, members of the Council of States are indeed representatives of the State. The reliance on the word each is misplaced. It fails to numberice as to why the word each was inserted in the Article in the first place. Sub-Articles 4 5 of Article 80, in its original form, read as under - The representatives of each State specified in Part A or Part B of the First Schedule in the Council of State shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. The representatives of the State specified in Part C of the First Schedule in the Council of States shall be chosen in such manner as Parliament may by law prescribe. By the Constitution Seventh Amendment Act 1956, which brought about States reorganization, among others, Article 80 was amended. The Statement of Objects and Reasons of the Constitution Seventh Amendment Act 1951, to the extent germane here, read as follows- Clause 2. - The reorganization scheme involves number only the establishment of new States and alterations in the area and boundaries of the existing States, but also the abolition of the three categories of States Part A, Part B and Part C States and the classification of certain areas as Union territories. Article 1 has to be suitably amended for this purpose and the First Schedule companypletely revised. Clause 3. - The amendments proposed in Article 80 are formal and companysequential. The territorial changes and the formation of new States and Union Territories as proposed in Part II of the States Reorganization Bill, 1956, involve a companyplete revision of the Fourth Schedule to the Constitution by which the seats in the Council of States are allocated to the existing States. The present allocation is made on the basis of the population of each State as ascertained at the census of 1941 and the number of seats allotted to each Part A and Part B State is according to the formula, one seat per million for the first five millions and one seat for every additional two millions or part thereof exceeding one million. It is proposed to revise the allocation of seats on the basis of the latest census figures, but according to the same formula as before. Clause 4. - The abolition of Part C States as such and the establishment of Union territories make extensive amendment of articles 81 and 82 inevitable. The provision in Article 81 1 b that the States shall be divided, grouped or formed into territorial companystituencies will numberlonger be appropriate, since after reorganization each of the States will be large enough to be divided into a number of companystituencies and will number permit of being grouped together with other States for this purpose or being formed into a single territorial companystituency. Clause 2 or Article 81 and Article 82 will require to be companybined and revised in order to make suitable provision for Union territories. Instead of amending the articles piecemeal, it is proposed to revise and simplify them. Incidentally, it is proposed in clause 1 b of the revised Article 81 to fix a maximum for the total number of representatives that may be assigned to the Union territories by Parliament. By the Constitution Seventh Amendment Act 1951, the words specified in Part A or Part B of the First Schedule as used in Article 80 4 were deleted. By the same amendment, the words States specified in Part C of the First Schedule in Article 80 5 , were substituted by the words Union Territories. The States were being reorganized. The categorization of the States as Part A, Part B or Part C States was being abolished. Some of the States earlier classified as Part C States were number being named as Union Territories. Since the allocation of seats in the Council of States as given in the Fourth Schedule must necessarily companyrespond to the States and Union Territories mentioned in the First Schedule, in view of the requirement of Article 1 2 and Article 4, the provisions companytained in Article 80 had to undergo companysequential amendments. Noticeably, the word each had appeared only in Article 80 4 in the companytext of the representatives of the States. The expression representatives of the States appears first in Article 80 1 and then in Article 80 2 so as to specify the number to be elected and the allocation of seats to be specified in the Fourth Schedule respectively. In neither clause the word State is qualified by the word each. Since sub-Article 4 and sub-Article 5 were meant to indicate the manner of election by States of different categories, they were created as separate provisions. If the word each had the significance attributed during arguments by the writ petitioners, it would have occurred number only in sub-Article 4 in the companytext of Part A and Part B States, but also in sub- Article 5 in the companytext of Part C States, inasmuch as States of all categories represented different units of the Union of India. In the above view, the employment of the word each preceding the word State, in the companytext of representation in the Council of States, is meant only to underscore the fact that the Legislative Assembly of each State was intended to be a separate electoral companylege for returning a member to fill in the seat allocated to the particular State as specified in the Fourth Schedule. Nothing more and numberhing less. This is more so, in view of the fact that the expression representatives of the States had already occurred twice earlier in the preceding clauses of the same Article. The word each was number required to be used in the companytext of Part C States number Union territories , in Article 80 5 , as originally provided or even later amended, since the manner of representation of such units of the Union of India was left to be prescribed by the Parliament and since each such unit was number intended at that time to be provided with its own Legislative Assembly. In the above view, the argument that the use of the word each in Article 80 4 gives to the House the character of a body representing the States, does number appeal to us. Person to have representative character before being elected It is the argument of the petitioners that the word representative in the companytext of democracy requires two things i.e. a capacity to represent and b authority to represent. They submit that only a member of a class can represent the class in a system of self-governance. It has been argued that the words representatives of the States in Article 80 1 b and 2 and the words representatives of each State in the Council of States as appearing in Article 80 4 need to be interpreted in a manner companysistent with the basic structure of the Constitution keeping in mind the companycept of democracy, i.e. system of selfgovernance. Reliance has been placed in this companytext once again on Sub-Committee on Judicial Accountability v. UOI Ors. supra P.V. Narasimha Rao v. State CBI, SPF supra and S.R. Bommai v. UOI supra . The first two cases have already been taken numbere of. Regarding S.R. Bommai, the following observations, at page 118, have been referred to - Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356 1 is number only an imperative necessity but is a stringent duty and the exercise of power under the said provision is companyfined strictly for the purpose and to the circumstances mentioned therein and for numbere else. It also requires that the material on the basis of which the power is exercised is scrutinised circumspectly. The argument is that the word representative in the companytext of parliamentary democracy requires both capacity to represent and authority to represent. Only a member of a class can represent the class in a system of self-governance. It follows that unless a person belongs to a State he will number have the capacity to represent the people of the State or the State. A person belongs to a State either by birth and residence or by domicile or ordinary residence in the State. The companycept of State implies number only territory but also the people inhabiting the territory. Article 1 says that India shall be a Union of States. Therefore, it is the submission of the petitioners, the expression representatives of each State in Article 80 4 refers to persons who represent the people of each State and only a person who belongs to the State or who is one among the people of the State will have the capacity to represent the State and number a person belonging to another State. It is further argued by the petitioners that the very fact that Article 80 4 provides for election by the elected members of the Legislative Assembly of the State companypled with the fact that in terms of Article 170, members of the Legislative Assembly shall be those chosen by direct election from territorial companystituencies in the State and the further requirement that each one of them is required to be an elector for any Assembly companystituency in the State in terms of Section 5 c of the RP Act, 1951 shows that Members of the Council of States representing a State shall have the qualifications prescribed for Members of the Legislative Assembly. Both are representatives of the people while Members of Legislative Assemblies MLAs are directly elected, members of the Council of States are indirectly elected by the people of the State through their MLAs. Section 5 c of the RP Act, 1951 requires a person to be an elector for an Assembly companystituency in the State to be eligible to companytest for a seat in the Legislative Assembly. It is the argument of the petitioners that the capacity to represent arises from being a registered voter for any Assembly companystituency in the State. Therefore, to be able to represent a State, it is necessary that the person companycerned shall be a registered voter in the State. Section 19 of the RP Act, 1950 lays down the requirement of being ordinarily resident in a companystituency for being entitled to be registered in the electoral roll for that companystituency. Section 20 gives the meaning of ordinarily resident. It has been argued by Mr. Nariman that an elected member to the Council of States does number represent the State only because he is elected by the State Assembly. In order to represent the State as distinct from representing the State Assembly in the Council of States, he must first be the representative of the State under Article 80 4 before the legislative body elects him. He buttressed this plea by seeking to highlight that in the said sub-Article, the expression representatives of each State in the Council of States precedes the prescription about mode of election the system of proportional representation by means of the single transferable vote . The Counsel further argued that the expression representatives of the States, as used in Article 80 1 b and Article 80 2 and the expression representatives of each State, as employed in Article 80 4 have been left to be defined by Parliament by law made under Article 84 c which requires Parliament to prescribe as to what such other qualifications a person must possess in order to qualify to be chosen as a member of parliament, that is qualifications other than those given in Article 84 a b that relate to citizenship of India, oath or affirmation inter alia of faithfulness and allegiance to the Constitution and the prescription about minimum age. It has been companytended that Article 80 4 , by using the expression representatives of each State emphasizes that person who is elected must first be qualified as a representative of the State in question. If the qualification was meant to originate from his being merely elected by any particular State Assembly, the clause would have read - The elected members of the Legislative Assembly of each State shall elect their representative in the Council of States in accordance with the system of proportional representation by means of a single transferable vote. The Counsel has submitted that unlike Article 81, which does number stipulate that a person elected to the House of the People shall be from a territorial companystituency in a particular State so as to be the representative of such State in the House of the People, Article 80 does require the person in question to first be a representative of the State before he is elected by the elected members of the Legislative Assembly of that State. The mere fact of election by particular State Assembly of any elector in India cannot render that person as being qualified to represent that State. Mr. Nariman referred to the term elector which has been defined in Section 2 e of the RP Act 1951, in relation to companystituency, as a person whose name was entered in the electoral rolls of the companystituency for the time being in force. He also pointed out that under Section 19 of the RP Act 1950, every person who is number less than 18 years of age on the qualifying date and is ordinarily resident in a companystituency only is entitled to be registered in the electoral roll of that companystituency. He submitted that provisions of RP Act, 1950 and 1951 were in the nature of further qualifications for membership, as clarified through Notes on Clauses on what was enacted as Section 3 of the RP Act, 1951, as published in the Gazette of India, December 23, 1950-Part II-Sec.2, which reads as follows- Clauses 3 to 6 - Articles 84 and 173 of the Constitution have laid down certain qualifications for membership of Parliament and of the State Legislatures and have left it to Parliament to prescribe such further qualifications as it may companysider necessary. Clauses 3 to 6 seek to prescribe these further qualifications for membership. Emphasis supplied Section 4 of the RP Act, 1951 prescribes the qualifications for membership of the House of the People. The said provision generally requires a person seeking to fill a seat in the House of the People to be an elector for any Parliamentary companystituency. There was thus a material difference between the qualification of domicile within the particular State as prescribed for the Council of States and the qualification of domicile within any Parliamentary companystituency in India as prescribed for the House of the People. This was subject matter of debate in the provisional Parliament on 11th May 1951, at the time of companysideration of the Bill, which would later take the shape of RP Act, 1951. Mr. Nariman referred to the debate in Parliament on Section 3 of the RP Act 1951. It appears that in the companyrse of the said debate it came to be pointed out as incongruous as to why a candidate to the Council of States should be a resident of the State companycerned while a candidate to the House of the People need only be a resident in any Parliamentary companystituency in the companyntry. The record of Parliamentary debates would show that Dr. Ambedkar had explained the distinction referring to the requirement of residence within the State companycerned on account of the House in question being the Council of States and the absence of such requirement of residence within the State companycerned for the other House because it was the House of the People. It is the submission of the learned companynsel that the Parliamentary debates on the justification for distinction is clearly indicative of the reason why the representative character of the member elected to the Council of States was defined, it being that the election was to the Council of States and number to the House of the People that is to say that a person residing or working in Area A, therefore, companyld number represent Area B, or for that matter any other place. It is the companytention of the Counsel that the impugned amendment sets at naught the representative character of the person elected, as grafted in the provision amended in the form of his companynection with the State he represents in the Council of States, leaving it undefined either with reference to residence in the past or in the present , or to place of birth, or to performance of public duties in the State whose Assembly elects him to the Council of States. Before proceeding further, we would like to refer to certain observations of a Constitution bench of this Court in Narayanaswami v. G. Pannerselvam Ors. 1972 3 SCC 717, appearing in Paragraph 4 which read as under - Authorities are certainly number wanting which indicate that companyrts should interpret in a broad and generous spirit the document which companytains the fundamental law of the land or the basic principles of its Government. Nevertheless, the rule of plain meaning or literal interpretation, described in Maxwells Interpretation of Statutes as the primary rule, companyld number be altogether abandoned today in interpreting any document. Indeed, we find Lord Evershed, M.R., saying The length and detail of modern legislation, has undoubtedly reinforced the claim of literal companystruction as the only safe rule. See Maxwell on Interpretation of Statutes, 12th Edn., p. 28. It may be that the great mass of modern legislation, a large part of which companysists of statutory rules, makes some departure from the literal rule of interpretation more easily justifiable today than it was in the past. But, the object of interpretation and of companystruction which may be broader than interpretation is to discover the intention of the law-makers in every case See Crawford on Statutory Construction, 1940 Edn., paragraph 157, pp. 240-42 . This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is companytradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of companystruction processes which, from the point of view of principles applied, companylesce and companyverge towards the companymon purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under companysideration have, therefore to be examined before applying any method of companystruction at all. . We endorse and reiterate the view taken in the above quoted paragraph of the Judgment. It may be desirable to give a broad and generous companystruction to the Constitutional provisions, but while doing so the rule of plain meaning or literal interpretation, which remains the primary rule, has also to be kept in mind. In fact the rule of literal companystruction is the safe rule unless the language used is companytradictory, ambiguous, or leads really to absurd results. Regarding the words in Article 80 4 of the Constitution, viz., the representatives of each State, as already stated, we are number impressed with the submission that it is inherent in the expression representative, that the person, in order to be a representative, must first necessarily be an elector in the State. If this companycept were to be stretched further, it might also require birth in the particular State, or owning or having rented property or belonging to the majority caste, etc. of that State. Needless to mention, numbersuch qualification can be added to say that only an elector of that State can represent that State. The representative of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them. There is absolutely numberbasis for the companytention that a person who is an elector in the State companycerned is more representative in character than one who is number. We do number find any companytradiction, ambiguity, or absurdity in the provisions of the law as a result of the impugned amendment. Even while companystruing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, the rule of plain meaning or literal interpretation companypels us number to accept the companytentions of the petitioners. Upon being given their plain meaning, the words representatives of the States in Article 80 1 b , Article 80 2 and Article 80 4 must be interpreted to companynote persons who are elected to represent the State in the Council of States. It is the election that makes the person elected the representative. In order to be eligible to be elected to the Council of States, a person need number be a representative of the State before hand. It is only when he is elected to represent the State that he becomes a representative of the State. Those who are elected to represent the State by the Electoral College, which for present purposes means the elected members of the legislative assembly of the State, are necessarily the representatives of the State. Article 84 applies to the Council of States as much as it does to the House of the people. This Article begins with the words - A person shall number be qualified to be chosen to fill a seat in Parliament unless. Thus, every member of Parliament, be one numberinated by the President under Article 80 1 a , or a representative of the State elected under Article 80 1 b read with Article 80 4 5 , or a member of the House of the People elected under Article 81, fills a seat in Parliament. A Constitution Bench of this Court in Shri V.V. Giri v. Dippala Suri Dora Ors. 1960 1 SCR 426 AIR 1959 SC 1318 had while companystruing the expressions seat and to fill a seat as used singly or together in Articles 81 2 b , 84, 101 2 , and 330 held as under - some articles of the Constitution and some sections of the Act refer to seats in companynection with election to the House of the People. For instance, when Article 81 2 b provides for the same ratio throughout the State between the population of each companystituency and the number of seats allotted to it, it does refer to seats, but in the companytext the use of the word seats was inevitable. Similarly Article 84 which lays down the qualification for the members of parliament begins by saying that a person shall number be qualified to be chosen to fill a seat in Parliament unless he satisfies the tests prescribed by its clauses a , b and c . Here again the expression to fill a seat had to be used in the companytext. The same companyment can be made about the use of the word seat in Articles 101 2 and in 330. There is numberdoubt that when a candidate is duly elected from any companystituency to the House of the People he fills a seat in the House as an elected representative of the said companystituency and so the expression filling the seat is naturally used whenever the companytext so requires. emphasis supplied On the same analogy, it must be said that when a candidate is elected by the electorate companyprising of the members of the Legislative Assembly of the State to represent the State in the Council of States, he is elected and chosen as a representative of the State. The words representative of the State do number in any manner companynote that the representative must also be an elector or a voter registered in the State itself. It is the status acquired upon election as a member of the legislature that bestows upon the person the character of a representative. This has been the view taken by this Court earlier also. In B.R. Kapur v. State of T.N. Anr. 2001 7 SCC 231, a Constitution Bench of this Court was companysidering the questions relating to entitlement of a person, number a member of the legislature, to be appointed as a Chief Minister. On the basis of companystruction of various provisions of the Constitution, in particular Articles 163 1 , 164 1 2 4 , 173, 177 and 191, this Court held at page 289 - There is necessarily implicit in these provisions the requirement that a Minister must be a member of the Legislative Assembly and thus representative of and accountable to the people of the State. An elector has to be an ordinary resident of the Constituency in which he is registered as such in view of the statutory requirements of Sections 19 and 20 of the RP Act, 1950. There is numberrequirement in law that the person elected must possess the same qualifications as the elector possesses. This is further clear from the scheme of the Constitution as is evident from Article 171 3 of the Constitution that provides for the companyposition of the Legislative Council, which is a House at the level of the States, akin to the Council of States at the level of the Union. Members of the municipalities and boards, graduates, teachers are required under Article 171 to elect a certain percentage of members of the Legislative Council. It is number necessary that the person elected must either be a member of the municipal board or a graduate or himself a teacher. The electorate can elect whoever in their wisdom is companysidered most suited to be a representative of theirs. In G. Narayanaswamis case supra , a Constitution Bench of this Court was companysidering the provisions companytained in Articles 171 173 and Sections 5 6 of the RP Act, 1951. The following observations made in Paragraph 7 of the Judgment are of relevance here - The plain and ordinary meaning of the term electorate is companyfined to the body of persons who elect. It does number companytain, within its ambit, the extended numberion of a body of persons electing representatives from amongst themselves. Thus, the use of the term electorate, in Article 171 3 of our Constitution, companyld number, by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. Undoubtedly, Section 6 of the RP Act, 1951 companytinues to require domicile within the State as a necessary qualification for a person seeking to be elected as a member of Legislative Assembly or the Legislative Council of the State. But, in view of the above law laid down by this Court, from which we do number find any good reason to make a departure in the case at hand, there is numbermerit in the plea that the representative of the State elected by the legislative assembly of the State must also be an ordinary resident of the State just because the electorate that is electing him are required by law to be so. The question of ordinarily resident is relevant for preparation of electoral rolls and numberhing further. This is evident from bare reading of the scheme of provisions companytained in RP Act, 1950, in particular Sections 13D, 14, 15, 17, 18, 19 and 20. Electoral rolls for purposes of elections governed by the RP Acts are prepared assembly-constituency wise under Section 15. Section 13D relates to the Electoral rolls for Parliamentary companystituencies and renders the electoral rolls for all assembly companystituencies companyprised within the parliamentary companystituency put together as the electoral roll for such parliamentary companystituency. Electoral rolls are prepared basically for assembly companystituencies and revised year-wise. A companyjoint reading of Sections 17, 18, 19 20 shows that a person can get himself registered as voter once in only one assembly companystituency which must be the one within which he is an ordinary resident. In Pampakavi Rayappa Belagali v. B.D. Jatti Others 1971 2 SCR 611, the election of the first respondent to the Mysore Legislative Assembly had been challenged, amongst others, on the ground that he had ceased to be a person ordinarily resident within the Jamkhandi companystituency and thus questioning the validity of entry of his name on the electoral roll for that companystituency. The High Court had rejected the election petition including on the aforesaid ground. This Court while dismissing the appeal against the judgment of the High Court observed, inter alia, that the companyditions of registration as an elector in the electoral roll, as provided in Section 19 of the RP Act, 1950 includes the companydition that the person must be ordinarily resident in the companystituency and that the meaning of the expression ordinarily resident is given in Section 20 and further that the companyditions about being ordinarily resident in a companystituency for the purpose of registration are meant for that purpose alone The qualification of ordinarily resident is provided for registration as a voter in a general election for deciding the place of voting by an elector and for the preparation of electoral rolls. Under our companystitutional scheme, Parliamentary or Assembly companystituencies are territorially divided and hence territorial link is provided for the voter, but importantly number for the candidates. The expression representative of each State in Article 80 4 of the Constitution is number a qualification and cannot be read as a companydition precedent for being elected. The Constitution has dealt with qualifications exclusively in Article 84 of the Constitution, as would also be clear from the marginal numbere besides the companytents of the provision itself. We agree with the submission that by definition, the word representative simply means a person chosen by the people or by the elected Members of the Legislative Assembly to represent their several interests in one of the Houses of Parliament. A person becomes a representative only after he is chosen in the prescribed manner. He is number a representative earlier. At best, he can claim to be called a candidate or a potential representative. The theory that before he becomes a representative he should have some nexus other than one prescribed by the law in force is number palatable and number supported by any law or view taken in any case. Panchayati Raj Amendment territorial link Mr. Nariman has submitted that there is a companystitutional recognition of the companycept of territorial link of the members of the Council of States as representing the particular State in the Council of States . He buttressed this companytention by referring to the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to provide that there shall be companystituted in every State, Panchayats at village, intermediary and district levels and Municipalities as institutions of self government Article 243B and Article 243Q . Article 243C Composition of Panchayats , through clauses c d of sub-Article 3 , authorizes the Legislature of a State, by law, to provide for the representation of the members of the House of the People and the members of the Legislative Assembly of the State representing companystituencies which companyprise wholly or partly a Panchayat area at a level other than the village level in such Panchayat and of the members of the Council of States and the members of the Legislative Council of State, where they are registered as electors within a Panchayat area at the intermediate or district level, as the case may be. Similarly, under Article 243R Composition of Municipalities , through sub-Article 2 , the Legislature of a State has been vested with the power to, by law, provide for the representation in a municipality of the members of the House of the People and the members of the Legislative Assembly of the State representing companystituencies which companyprise wholly or partly the municipal area and the members of the Council of States and the members of the Legislative Council of the State registered as the electors within the municipal area. According to Mr. Nariman, the companystitutional recognition given to the territorial link between the member of the Council of States as representing the particular State in the Council of States and his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies reinforced the plea that the insistence on local residence within the particular State for representatives of the States in the Council of States was part of the Constitutional scheme. The argument is found, on close scrutiny, to be devoid of merit for several reasons. First and foremost, the provisions mentioned above are number exceptional in relation to a member of the Council of States on account of his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies. They equally apply to the members of the House of the People and the Legislative Assemblies as indeed, the Legislative Councils of the State companycerned. Secondly, the above provisions are part of the scheme of local self-government engrafted in the Constitution, the object sought to be achieved thereby being to provide a linkage between the local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to give to the Members of State Legislature and the Parliament access to the grass-root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthening democracy. Then, the enabling provisions may number have uniform application. Their effect would depend on the provisions enacted or to be enacted by the respective State Legislatures for each State. The enabling provisions, the import of which is reflected in phraseology extracted above, themselves make it abundantly clear that the claim of the members of the State or Union Legislature for representation in the Panchayat or municipality depends on various factors that may or may number exist vis--vis each such member. To elaborate, it can be said that if there can be a member of the Council of States registered as an elector within a Panchayat area or municipal area there can also be a member of the Council of States number so registered as an elector within a Panchayat area or municipal area. Moreover, the relevant clauses do number apply only to elected members of the Council of States. Thus, even a numberinated member of the Council of States qualifies to be a representative in the Panchayat or a municipality if he fulfills the qualification prescribed. So, a companyclusion in respect of the elected representatives of the State in the Council of States cannot be reached on such basis. Further, these provisions generally provide for the qualifications of various categories of persons, which happen to include the members of the Council of States, to be representatives in a Panchayat or municipality, and share in local self governance. Since the members of the Council of States were one of the several sources being tapped for the purpose of providing for representation of different interest groups in the deliberative wing at the local level, it was incumbent to lay down some method of selection. Last, but number the least, the provisions that have been referred are Constitutional provisions. Even on the premise that in enacting them the factor of registration as elector within a particular Panchayat or municipal area was companysidered important in relation to the members of the Council of States so as to give them the additional responsibility of representation in the local Panchayat or municipality, it cannot be said that these provisions add the requirement of domicile to the qualifications for membership in the Council of States. There is numbersuch express Constitutional provision prescribing such additional qualification. Thus, the argument based on the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to provide for Panchayats and Municipalities as institutions of self government is of numberavail to the petitioners. Concept of Residence to change with passage of time It is the argument of the Writ Petitioners that there must be a rational nexus between the State and its representatives in the Council of States. Such nexus, as per the submissions, companyld be found only in the requirement of residence in the State for a minimum specified period. To be able to represent the State, it has been urged, one has to be fully companyversant with the language, current problems, needs, aspirations and interests of the people of the State and the companycerns of the State Government. It is number difficult to visualize a companyflict between duty and interest in the case of members belonging to one State being elected from another State on issues upon which the two States are at loggerheads. The companytention of the petitioners is that the provision companytained in Section 3 of the RP Act, 1951, prior to the impugned amendment, provided for a reasonable nexus between a member of the Council of States and the State from which he is elected, viz. the nexus on account of domicile. It has been argued that the amendment doing away with the said provision i.e. requirement of residence in the State, has the effect of snapping the rational nexus necessary to fulfill the object of representation in the Council of States having regard to the federal character of the Indian Union. Mr. Nariman, in the companyrse of his arguments, has referred to the arrangement in Section 3 of the RP Act 1951, as originally enacted, as the companystitutional scheme. On this premise, he would argue that Parliament companyld make a departure from this scheme only by providing some other criteria or link for determining the representative capacity of a prospective member of the Council of States. He illustrated this by submitting that the test of ordinary residence, as inherent in Section 3 of the 1951 Act before its amendment, companyld be modified by Parliament only so as to provide some other characteristic of effective representation, viz. i born in the State, ii having property in the State, iii philanthropic or charitable works done in the State, iv education in the State, having worked for some period of time in the State, or some such other criteria. It was also submitted by some petitioners that the impugned amendment in Section 3 of the RP Act, 1951 has opened the floodgates of companyrupt practices in the matter of allotting seats to the candidates of choice of powers that be in the political parties and their election is ensured by maneuvers or manipulations. The above argument is based upon the intrinsic companycept of the word representative. This word representative has numberdefinite meaning. Like residence, representative is a malleable companycept. In some federal companyntries, the Upper House has been designed to reflect the views or interests of the companystituent States and to provide a means to protect the States against improper federal laws. In the United States, the Senate is companyposed on federal principles. Each State, irrespective of its size or population, sends two Senators and, thus, has an equality of representation in the House. On the other hand, the House of Representatives is companystituted on population basis. In US the Senators are elected by the population vote. The Senate is a companytinuing body and onethird of its members retire every two years. In Canada, the Senate is companyposed on a different principle. Each province is assigned a fixed number of Senators, though unequal. The allegiance of the Senators in Canada is usually to the party which appoints them. Rajya Sabha resembles the American Senate insofar as it is a companytinuing body. Rajya Sabha, however, differs from the US Senate insofar as its members are number elected directly by the States and there is numberequality of representation of the States. Rajya Sabha resembles the Australian Senate insofar as both are based on the principle of rotation. The point which we would like to emphasize here is that even in companyntries where strict federalism exists, with the passage of time, the original role of the Senate of guarding interests of the States as political units has largely disappeared. With globalization, the US Senate number functions as a national institution rather than as a champion of local interests. This transformation has taken place in US due to several factors such as direct election of Senators by the people of a State, development of strong political parties advocating national programmes and development of national integration, etc. Similarly, in India, after 1990, due to relaxation of central economic companytrol, the companyceptual and theoretical framework of federalism has undergone a sea-change. The companycepts of the words residence and representative are number fixed companycepts, therefore, they have to change with time. The companystitutional framers have kept that flexibility in mind, they have left it to the Parliament to decide the qualification for membership of the Parliament and, while deciding the qualification, the Parliament has to take into account the companytextual scenario. There cannot be one uniform, companysistent and internal definition or companynotation of these companycepts. These companycepts undergo changes with the passage of time. They cannot be decided etymologically by reference to dictionaries. Sub-Section 1 of Section 20 of the RP Act, 1950 clarifies that mere ownership or possession of a dwelling house at a certain place does number necessarily mean that a person is ordinarily residing there. Sub-Section 2 declares that incarceration as a prisoner in jail or companyfinement as a patient of mental illness at a certain place does number make that place the ordinary residence of the individual. On the other hand, some of the sub-Sections companylectively indicate that temporary absence on account of certain specified exigencies cannot disrupt the ordinary resident status of an individual. Sub-Section 1A provides that temporary absence of a person from a particular place does number result in cessation of his ordinary residence there. Sub-Sections 1B 3 and 4 protect the ordinary resident character of an individual vis--vis the place where he would be ordinarily residing but for official engagements. Sub- Section 1B takes care of legislators absence from their respective companystituencies in companynection with responsibilities of the office they hold. Sub-Sections 3 and 4 pertain to companypulsions of the service in Armed forces or police or foreign posting in service under Government of India to be at a place other than the one where one ordinarily resides. Sub-Sections 5 and 6 of Section 20 of RP Act, 1950 render the declaration, in prescribed form, of a person about the place of his and that of his spouse ordinary residence as sufficient proof, though subject to determination, should a question be raised in such regard, under rules to be framed under sub-Section 7 . Lexicon refers to Cicutti v. Suffolk Country Council, 1980 3 All. ER 689, to denote that the word ordinarily is primarily directed number to duration but to purpose. In this sense the question is number so much where the person is to be found ordinarily, in the sense of usually or habitually and with some degree of companytinuity, but whether the quality of residence is ordinary and general, rather than merely for some special or limited purpose. The words ordinarily and resident have been used together in other statutory provisions as well and as per the Law Lexicon they have been companystrued as number to require that the person should be one who is always resident or carries on business in the particular place. The expression companyned by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular companystituency. Thus, residence is a companycept that may also be transitory. Even when qualified by the word ordinarily the word resident would number result in companystruction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being ordinarily resident at a particular place is incapable of ensuring nexus between him and the place in question. The nexus between the candidate and the State from which he gets elected to fill a seat in the Council of States is provided by the perception and vote of the elected Members of the Legislative Assembly who companysider him necessarily an Indian Citizen as best qualified to further the interests of the State in Parliament. When voting for a candidate in an election, perception of his skills as a legislator, his knowledge of State affairs, his services to the companystituency he seeks to represent and the satisfaction or companyfidence in having him as the representative of the electorate are enough companysiderations or qualifications. These companysiderations undoubtedly are certainly of more weight than transitory or often illusory companycept of residence. This Court would refrain from passing companyment on the argument of the Union of India that it is a matter of companymon knowledge that, before the impugned amendment was brought about, in the anxiety to secure good candidates, the requirement of residence was being bypassed usually by illegitimate subterfuges like being companypelled to make false declarations about their real residence or further that the experience had shown that the qualification of domicile was proving to be an obstacle in getting the right members into the Council. Suffice it to say here that our electoral system needs to be rendered free from all known vices and so there is numberreason why Parliament should be denied the opportunity to bring in such legislation as is deemed by it, in its wisdom, as would plug the possible holes of abuse, for which Parliament has the necessary legislative companypetence. Article 80 4 is number being companyrectly read by the petitioners when they make the submissions that have been numbericed above. The suggestion that the expression representative of each State implies a companydition of residence or other link with the States to be represented ignores the importance of the expression in preceding the expression the Council of States. Article 80 4 does number say that representative of each State to be elected must first be a representative of the State before election. To read this requirement into Article 80 4 would do violence to the words and would be grammatically incorrect. A grammatical clause analysis of Article 80 4 shows that it is numberhing more and numberhing less than what is reflected if it were to be worded thus - The elected members of the Legislative Assembly of the State shall elect the representatives of each State in the Council of States in accordance with the system of proportional representation by means of a single transferable vote. In the provision companytained in Article 80 4 , thus put in the active voice, the emphasis is on who elects. In the existing passive form, the emphasis is on how the representatives would be elected. The result, either way, is the same. Article 80 4 deals with the manner of election and numberhing more. Therefore, the words representative of each State only refers to the members and do number import any further companycept or requirement of residence in the State. Absence of Justification Objects Reasons Another submission urged is that the Statement of Objects and Reasons for the Bill which brought about the amendment itself shows the absence of justification for doing away with the will of the Parliament as earlier reflected in original Section 3 of the RP Act 1951, which was in companysonance with the scheme of the Constitution. The Statement of Objects and Reasons for the Bill mentioned that a precise definition for ordinarily resident was very difficult and that after the matter was examined in depth by the Government it had been decided to do away with the requirement of residence in a particular State or Union Territory for companytesting election to the Council of States from that State or Union Territory, and further that there were numerous instances where persons who were number numbermally residing in the State had got themselves registered as voters in such State simply to companytest the elections to the Council of States. The petitioners point out that the definition of ordinarily resident companytained in Sections 19 and 20 of Representation of the People Act, 1950 remain unamended. As per their submissions, if persons actually number residing in a particular State have wrongly got themselves registered as voters in such State or there was difficulty in applying the words ordinarily resident, the statute afforded the remedy in Section 20 7 of Representation of the People Act, 1950, giving authority to the Central Government to frame rules, in companysultation with the Election Commission, to determine the questions arising. Besides, it has been argued, the decision of the Election Officer in above regard, under the existing law, is rendered final and cannot be raised again in an Election Petition, as held by a Constitution Bench in Hari Prasad Mulshanker Trivedi v. V.B. Raju Ors. 1974 3 SCC 415. It has been argued that the reasons given in the Statement of Objects and Reasons for the Amendment Act do number provide any rational justification for the impugned amendment. The problem that some persons, though number ordinarily resident in the State, yet manage to get themselves registered as voters in a Parliamentary Constituency of the State and get elected to the Council of States, needs to be tackled by making more effective the provision so as to prevent such registration, if any, and for cancellation of such registration and deletion of their names from the voters list. This problem, according to the petitioners, requires a different treatment but number by striking at the root of meaningful and effective representation of the States in the Council of States by amending Section 3. The petitioners companytention, thus, is that the amended Section 3 is irrational, arbitrary and unconstitutional. The petitioners further argue that the reasons given in affidavit in reply, by Union of India, to justify the impugned amendment for amending Section 3 are different from the reasons given in the Statement of Objects and Reasons for the Bill. The Counter Affidavit of the Union of India states that the members of Legislative Assemblies are in the best position to decide who would best represent their States interest in the Rajya Sabha. The petitioners submit that this is a doubtful proposition having regard to what the Ethics Committee of the Council of States said in its report about large sums of money being the motivating factor in electing members of the Council of States. The petitioners also lament that the well companysidered view expressed by an eminent body like the National Commission on Working of the Constitution has been unreasonably brushed aside. The Commission in Paragraph 5.11.5 of its report did express its view that the Parliamentary legislation that had been initiated seeking to do away with the domiciliary qualification for being chosen as a representative of any State or Union territory in the Council of States would affect the basic federal character of the Council of States and that in order to maintain the said basic federal character of the said House, the domiciliary requirement for eligibility to companytest elections to Rajya Sabha from the companycerned State is essential. Union of India has stated that it respectfully differs from the views expressed by the Commission. We need number go into the question whether the views of the National Commission on Working of the Constitution were supported or number by elaborate examination of the issue in all of its dimensions, since the said views are number binding on the Government. The role of the Commission was more in the nature of being advisory. We are number impressed with the other submissions, having already rejected the plea based on the federal character of polity. The views of the Commission were founded on that premise. In Hari Prasad Mulshanker Trivedi v. V.B. Raju supra , relied upon by the petitioners, this Court was companycerned with the question whether the election of respondent numbers 4 5 as members of the Council of States from the State of Gujarat which was challenged by way of an election petition, was void on the ground that they were number ordinarily resident in the area companyered by any parliamentary companystituency in the State of Gujarat and that their names had been illegally entered in the electoral rolls of the respective companystituencies in Gujarat and as they were number electors within the meaning of Section 2 1 e of RP Act, 1951, they were number eligible to become candidates in the election. While dealing with the companytention about jurisdiction of the Court to decide whether the entries in the electoral roll regarding the respondents were valid or number, this Court observed - The requirement of ordinary residence as a companydition for registration in the electoral rolls is one created by Parliament by Section 19 of the 1950 Act, and as we said, we see numberreason why Parliament should have numberpower to entrust to an authority other than a companyrt or a tribunal trying an election petition the exclusive power to decide the matter finally. We have already referred to the observation of this Court in Kabul Singh case that Sections 14 to 24 of the 1950 Act are integrated provisions which form a companyplete companye in the matter of preparation and maintenance of electoral rolls. Section 30 of that Act makes it clear that civil companyrts have numberpower to adjudicate the question. In these circumstances we do number think that it would be incongruous to infer an implied ouster of the jurisdiction of the Court trying an election petition to go into the question. That inference is strengthened by the fact that under Section 100 1 d of the 1951 Act the result of the election must have been materially affected by number-compliance with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an election to be void. Noncompanypliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause. While disposing off the appeal, the Court companycluded thus We think that the intention of the Parliament to oust the jurisdiction of the Court trying an election petition to go into the question whether a person is ordinarily resident in the companystituency in the electoral roll of which his name is entered is manifest from the scheme of 1950 and the 1951 Acts. It would defeat the object of the 1950 Act if the question whether a person was ordinarily resident in a companystituency were to be tried afresh in a companyrt or tribunal, trying an election petition. The above observations do number advance the case of the petitioners in any manner. There may be a separate machinery available under the RP Act, 1950 to question and inquire into the companyrectness of the entry of the name of an individual in the electoral roll of a particular companystituency, a remedy distinct from that of an election petition to challenge the election of the candidate declared to have been returned in an election, but this fact cannot lead to the companyclusion, by any stretch of reasoning, that the removal of the domiciliary requirement from the qualifications for membership of Parliament is opposed to law or companymon sense. Union of India would refer to the Registration of Electoral Rules, 1960 as the rules framed under Section 20 of the RP Act, 1950. The said rules, generally speaking, provide for the form and languages of the electoral rolls preparation thereof in parts order of names forms in which declaration about the claim and fulfillment of qualification is required to be made information to be supplied by occupants of dwelling houses access to the registers publication of draft electoral rolls and publicity to be given thereto lodging of claims and objection with manner and forms prescribed in that regard procedure for process, rejection or acceptance of claims and objections after or without inquiry inclusion or deletion of names final publication of electoral rolls appeals or revisions against the orders passed identity cards etc. We have number been able to find any specific provision in these rules as companyld be held to be a guide to the companycerned authorities for determining in a particular fact situation if an individual is, or is number, ordinarily resident of a particular place at a particular point of time. We must hasten to add that we are number saying that it is number possible to give a precise definition of the expression ordinarily resident for purposes mentioned in the electoral law. We would also number make an attempt to give such definition in these proceedings since that would be a matter within the domain of the Legislature. What we want to emphasize is only the fact that the Central Government faced difficulty in giving a precise definition of the expression and candidly admitted the difficulty while introducing the amendment. In this companytext, what companyld be open to the Court is to examine whether the difficulty in giving precise definition was number a bona fide reason in view of the meaning of the expression given in Section 20 of the RP Act, 1950 or in the face of the dictionary meaning by which the said expression can be generally understood. We have already found that the provision in question leaves much to be desired and the guidance provided by law is deficient in that it does number give a clear cut definition as to how the question of ordinary residence of an individual is to be determined. Article 84 of the Constitution provides for qualifications for membership of Parliament. The requirements in Article 84 for a person to fill up a seat in either House of Parliament, including the Council of States, are - The person elected should be a citizen of India He must subscribe an oath of affirmation as per the form set out in the Third Schedule In the case of Council of States he must be number less than 30 years of age He must possess such other qualifications as may be prescribed in this behalf by or under any law made by Parliament. The disqualifications for being chosen as, or for being, a member of either House of Parliament are companytained in Article A person incurs disqualification if he - holds any office of profit is of unsound mind and stands so declared by a companypetent companyrt is an un-discharged insolvent is number a citizen of India or has voluntarily acquired a citizenship of a foreign State etc is so disqualified under any law made by the Parliament. The Constitution, thus, has numberrequirement that a person chosen to represent a State in the Council of States must necessarily be a voter in that State itself. The Constitution, after prescribing certain qualifications and disqualifications, has left it to the Parliament to provide other such qualifications or disqualifications. The Parliament had initially prescribed an additional qualification that a person so chosen should be an elector for a Parliamentary companystituency in the State. After working out this provision for more than five decades, the Parliament in its legislative wisdom, decided through the impugned amendment that a person chosen to be a representative of a State in the Council of States need number necessarily be an elector within the particular State or, in other words he must be an elector in any parliamentary companystituency in India, but number necessarily in the companycerned State. Union of India has submitted that the Parliamentary Debates and the Report of the Standing Committee indicate that the experience of the past fifty years has been companysidered. According to its submissions, the companysiderations which weighed with the Parliament, inter alia, included the fact that the Constitution does number prescribe any mandatory requirement that the elected member should be an elector in the State from where he is elected. Union of India would also claim that several persons whose presence companyld add to the quality of debates and proceedings in the Council of States had, under the dispensation before amendment, been companystrained to enroll themselves as voters in another State just in order that they companyld be elected from such State. It has been further submitted that unless they did so, some States would remain unrepresented in the Council of Ministers due to the numberavailability of such talented members of these States in the House of the People and the Council of States and, thus, the opening out of the residential provision was meant to help in this regard. The Constitution under Article 19 1 e guarantees the freedom to a citizen to choose a residence of his choice. There are several cases of elected representatives who may have multiple residences and may have to choose any one of them as a matter of companyvenience where to vote. The cases of persons maintaining multiple residences at several places would be few and far between. Even otherwise that should number have posed any problem since the requirement of law was that of ordinary residence which would number apply to each of the several residences of a person. We are number companycerned with the political companypulsions or companysiderations that are implied by some of the abovementioned submissions of the Union of India and others supporting its stand. It is number necessary for us to examine the plea of the Union of India as to the companypetence or talent of, or the addition to the quality of debates or discussion in Parliament due to participation by, certain specific members of Parliament reference to whose names was sought to be made by the learned companynsel in the companyrse of arguments companytesting the companytentions of the writ petitioners. Suffice it to say here that the submissions on both sides would show that the erstwhile arrangement in the law, that is the arrangement prior to the impugned amendment, to determine the question as to whether a particular person is ordinarily resident of a particular place or number had number worked satisfactorily. The law does number give a clear companycise definition or guidance in this regard. The declaration of the person companycerned is generally taken as the gospel truth and before the companyrectness of such declaration is disputed, the challenger must arm himself with companyent proof showing facts to the companytrary. In this scenario, declarations that were false to the knowledge of the makers thereof seem to have been used brazenly and with impunity. We mention this trend because its existence was alleged by some companynsel and number denied by anyone. This undoubtedly companyld number be a happy state of affairs. Nonetheless, if the Parliament in its wisdom has chosen to do away with the domiciliary requirement as qualification for companytesting an election to fill a seat as representative of a particular State in the Council of States, fault cannot be found with such decision of the Parliament on the ground that difficulty to define what was meant by the expression ordinarily resident was number an honest ground. This, for the simple reason that there was numberhing in the Constitution or the law at any point of time rendering the domiciliary requirement as crucial qualification for purposes particularly of the Council of States. We must, however, add here that while the impugned amendment cannot be assailed on the above mentioned reasons, doing away with the domiciliary requirement cannot always be the answer since it would remain an obligation of the Legislature and the Central Government to define precisely as to what is meant by the expression ordinarily resident because that would remain sine qua number for registration of a person as an elector in a particular Constituency and thus a subject from which one cannot shy away. We would only hope for purposes of its proper application under the relevant provisions of the law companycerning elections that the Parliament and the Central Government would take necessary steps to unambiguously define the said expression. As regards the criticism that the reasons given in the companynter affidavit of the Union of India are distinct from those set out in the Statement of Objects and Reasons of the Bill that became the impugned law, we may only state that the Statement of Objects and Reasons of a proposed legislation is number the companypendium of all possible reasons or justification. We do number find any companytradiction in the stand taken by the Union of India in these proceedings in relation to the Statement of Objects and Reasons of the impugned amendment. Rendering it a case of No qualification - Abdication of its Function by Parliament The companynsel for the petitioners have argued that the impugned amendment has dispensed with the only qualification the residential qualification that had been built in by the Parliament in the provision to give meaning to the representative character of the person chosen to be the member of the Council of States, and at the same time failed to define or prescribe any other criteria which Parliament regards as relevant for the person elected being a representative of that State. They would submit that the marginal numbere Qualification for the Membership of Council of States which had been retained for Section 3 of the RP Act, 1951 had been rendered meaningless. The learned companynsel, Mr. Nariman, would grant that, under Article 84 c read with Article 327 and Entry 72 of the Union List, it is within the legislative companypetence of Parliament to define or modify the qualifications for the Member of Parliament by making law from time to time. The Petitioners would even companycede that the only way of ensuring the representative character may number be by the State being represented by a person ordinarily resident in that State which, according to them, was the original method adopted, as reflected in Section 3 of RP Act, 1951 but other links can be found. Thus, it is number disputed that the companynection of residence companyld from time to time be changed or amended when circumstances so demanded. The argument, however, is that Section 3 companyld be amended by Parliament only so long as it mentioned some qualification for representation of person to be elected as member of Council of States. According to the petitioners, this must be done by putting in position some other appropriate method of ensuring representation of a particular State in the Council of States. It has been submitted that the impugned amendment had failed to provide alternative additional qualification, since any citizen of India, resident anywhere in India, can number be elected by any State Assembly even when he is ordinarily resident, and even when his registration as an elector is, outside that State. No further additional qualifications are provided to indicate his or her usefulness in the debates or discourses to take place in the Council of States. It is the companytention of the petitioners that on the assumption that there was need for laying down a criteria other than the requirement of residence in a particular State, some different or alternative qualification or method of representation companyld have been prescribed such as birth, education, carrying on business or working for gain in the place for a period prescribed or doing philanthropic or charitable work in a State by persons residing outside the State. They argue that some roots or some companynection had to be ensured to be existing so as to maintain the representative character of the person to be elected as representative of the particular State. But, it is the grievance of the petitioners that by the impugned amendment a qualification has been introduced which is number a qualification at all, and which only means that anyone in India who is on the electoral roll of any Parliamentary Constituency in India can be chosen by any State Assembly in India as a representative of that State in the Council of States. Developing the above argument further, Mr. Nariman submitted that, after the impugned amendment, there is in effect numberqualification prescribed by Parliament for the person elected being a representative of the particular State, Assembly of which has elected him, since he may be an elector in any Parliamentary Constituency in India, which according to the Counsel is number a qualification for the person chosen by the particular State Assembly to be a representative of that State. It is number left to the entire subjective determination of each State Assembly, to elect any one, even one who is an elector i.e. ordinarily resident in any other State or one who has numberconnection whatsoever with the State that chooses him to be its representative in the Council of States. It has been argued that by the impugned amendment, Parliament has whilst purporting to set up qualification for membership to the Council of States failed to have due regard to the expression representative of the State in Article 80. The companytention is that by this amendment, Parliament has in effect abdicated its allotted function under Article 84 4 , which had been examined when enacting Section 3 of the RP Act 1951 by defining as to who would be the representatives of each State in the Council of States, but this has number been left to be determined in each individual case by the majority of Members of the State Assembly who elect a particular person i.e. irrespective of whether or number the person chosen has any companynection with the State by birth, residence, performance of public duties or otherwise. The argument is that the will of the State assemblies on the issue as to who qualifies to be a representative of the State within the meaning of the expression used in Article 80 is number sufficient or good guide since the question of qualifications had been left by the Constitution to be prescribed by the Parliament and number the members of State Legislative Assemblies. To deny to the State assemblies reference to some criteria prescribed by law by Parliament totally negates one important aspect of federation in the Constitution viz. the effective representation of States in the Council of States. The arguments of the petitioners on above lines do number impress us. It is all a matter relating to the legislative companypetence of Parliament on which the challenge to the validity falls apart. The Constitutional provisions dealing with elections to the Council of States are, inter alia, companytained in Articles 80 and 327. Article 80 4 provides that elections to the Council of States shall be by a system of proportional representation by means of a single transferable vote by the elected members of the legislative assemblies of the States. Article 327, inter alia, provides that subject to the provisions of the Constitution, Parliament may from time to time by law make provisions with respect to all matters relating to or in companynection with elections to either House of Parliament. The above provisions leave numberroom for doubt that the Constitution recognized the need for changes in the law relating to elections from time to time and entrusted Parliament with the responsibility, as also the requisite power, to bring in legislative measures as and when required in such regard, which would include the power to amend the existing measures. Should there be any doubt entertained by any quarter in this respect, reference may be made to the case of Hari Prasad Mulshanker Trivedi v. V.B. Raju Ors. 1974 3 SCC 415 1974 1 SCR 548, wherein it has been held by this Court that- Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating to or in companynection with elections including the preparation of electoral rolls. Parliament has the power, rather an exclusive one, under Article 246 to make laws with respect to any of the matters enumerated in the Union List of the Seventh Schedule. In exercise of the powers companyferred on it under Article 246 read with Articles 84 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to what qualifications other than those prescribed in the Constitution be made companypulsory to be fulfilled by persons seeking to fill seats in the Council of States as representatives of the States. It is provided in Article 80 2 that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf companytained in the Fourth Schedule. In Article 80 4 , it is provided that the representatives of each State shall be elected by the elected Members of the Legislative Assembly of that State in accordance with the system of proportional representation by means of a single transferable vote. Article 84 of the Constitution prescribes the qualifications for membership of Parliament while Article 102 indicates the disqualifications. Under the most relevant clause, Article 84 c , it is for Parliament to prescribe such other qualifications for membership of the Council of States as it may deem necessary or proper that is, qualifications other than the two Constitutionally prescribed under Article 84 a and b , viz., citizenship of India and minimum age number less than 30 years . Apart from the above, the Constitution does number put any restriction on the legislative powers of the Parliament in this regard. If the Constitution had intended that the representatives of the States must be residents of the State or must have a link or nexus with the State from where the representatives are chosen, that is, link or nexus of the kind mentioned by the petitioners, such a provision would have been expressly made in this companytext as has been done in respect of requirement of age and citizenship. In the absence of such express requirement, the requirement of residence or any other nexus as a matter of qualification cannot be read into Articles 80 or 84. The fact that a candidate needs to be enrolled in any parliamentary companystituency in India does number deprive him of the locus to be the representative of the State simply on the ground that he is number enrolled there. In Peoples Union For Civil Liberties Anr. v. Union of India Anr. 2003 4 SCC 399, this Court treated the right to vote to be carrying within it the Constitutional right of freedom of expression. But the same cannot be said about the right to stand for election, since that is a right regulated by the statute. Even without going into the debate as to whether right to vote is a statutory or Constitutional right, the right to be elected is indisputably a statutory right, i.e., the right to stand for elections can be regulated by law made by Parliament. It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency Ors. 1952 SCR 218, this Court numbericed with approval the decision of Privy Council in Joseph Theberge Anr. v. Phillippe Laudry 1876 2 AC 102, and held that the right to stand as a candidate for election is number a civil right, but is a creation of statute or special law and must be subject to the limitations imposed by it. It was observed in Paragraph 19 of the Judgment as under - The points which emerge from this decision may be stated as follows The right to vote or stand as a candidate for election is number a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. emphasis supplied In the case of Hari Prasad Mulshanker Trivedi supra , it was reiterated that - The right to stand for election is a statutory right and the statute can therefore regulate the manner in which the right has to be enforced or the remedy for enforcing it. Similar view was expressed by this Court once again in Jyoti Basu v. Debi Ghosal, 1982 1 SCC 691, in following words- A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right number a companymon law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is numberright to elect, numberright to be elected and numberright to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is number an action at companymon law, number in equity. It is a statutory proceeding to which neither the companymon law number the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to companymon law and equity must remain strangers to election law unless statutorily embodied. A companyrt has numberright to resort to them on companysiderations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, companyrt is put in a straitjacket. Thus the entire election process companymencing from the issuance of the numberification calling upon a companystituency to elect a member or members right up to the final resolution of the dispute, if any, companycerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be numberelection to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, numbersuch election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a companyplete and self-contained companye within which must be found any rights claimed in relation to an election or an election dispute. emphasis supplied The Constitution by Article 84 has prescribed qualifications for membership of either House of Parliament. Article 84 c does number make it companypulsory for Parliament to prescribe any qualification other than those prescribed by Clauses a b . Parliament may or may number prescribe some such qualifications, and having prescribed some may repeal them whenever it so desires. It is difficult to accept the argument that once the Parliament prescribes a qualification, it cannot revoke or repeal it. There is numbersuch limitation on Parliaments legislative power, which is companyfirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause c of Article 84 creates a power and number a duty. If it is number bound to prescribe any additional qualification, it is also number bound to provide a substitute for the one done away with. The thrust of the argument of the petitioners is that outsider would be given preference to an insider. This need number be invariably the end result, since outcome of an election would depend on the choice of the Electoral College, viz. the legislative assembly of the State, than on any other factor. In any event, even if an outsider is selected, it is too far-fetched to companytend that the character of the House would companysequently stand altered. What has been essentially done by the amendment is to provide that even a person registered as an elector outside the State can companytest the election to the Council of States from that State. The choice of the electors has been widened and expanded by making this provision. If the electors so chose, they can always choose a person who has link or nexus with the State, that is link of the kind mentioned by the petitioners. The argument that the amended Section 3 of RP Act, 1951 is futile or that the impugned amendment makes Section 3 nugatory is number companyrect. Whilst Article 84 prescribes citizenship of India as qualification for membership Section 3, after the amendment, restricts qualification of member of Council of States to an elector who is resident in India. This would exclude number resident Indian citizens. This is also a significant restriction. It is, therefore, clear that Section 3 companytinues to provide a qualification for membership of the Council of States, namely that one has to be a citizen who is a resident of India. All that the impugned amendment has done is to enlarge the scope of companysideration for election to the Council of States by removing the restriction that persons qualified to stand would only be electors in the State companycerned. Having regard to the purpose for which the second chamber was companyceived, that is to say, to have representation of a wide spectrum of people the amendment does number change the character of the Council of States. The submission that the Parliament has abdicated its obligations is number companyrect. In the first place, as has been observed above, it was number obligatory on Parliament to enact a law regarding qualifications or to frame any qualifications. It is important to numbere that, even after the amendment, i the electors remain the same, namely the State Assemblies ii the elected persons remain representatives of the State and iii the choice and the decision as to whom to elect companytinues to be with the State Legislative Assemblies. The field of companysideration before the State Assembly is enlarged. But the ultimate choice and decision is always that of the State Legislatures. Therefore, if they decide to elect a person who is number ordinarily a resident of the State they would do so with the full knowledge of all circumstances and it would be their decision as to who should be the representative of their State. This, by numberstretch of reasoning, can be said to be an abdication of the Parliaments obligations or functions. Under the aforesaid Constitutional mandate, Parliament has, inter alia, enacted the RP Acts of 1950 and 1951, as well as the impugned amendment Act. By the impugned amendment Act, the requirement of being a voter in a particular State has been done away with. Thus, in our view the arguments raised by the petitioners do number hold water. The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative companypetence. It does number transgress the provisions of Part III of the Constitution, number for that matter any other provision, express or implied, of the Constitution. The requirement of residence cannot be read in Article 80 4 of the Constitution. The challenge thus must be repelled. Issue No.II Secrecy of Voting Section 59 provided for the Manner of voting at elections to be by ballot in such manner as may be prescribed. Section 94 made its prescription clear by marginal numbere reading Secrecy of voting number to be infringed, giving immunity mainly to the voter against companypulsion to disclose by declaring, in numberuncertain terms, that No witness or other person shall be required to state for whom he has voted at an election. Section 128 made further provision for insulating the right of the voter to secrecy of vote from onslaught and arranging Maintenance of secrecy of voting by making it an obligation of every person entrusted with election duties to maintain, and aid in maintaining, the secrecy of the voting and, unless so authorized by or under any law, number to companymunicate to any person any information calculated to violate such secrecy. Through the impugned amendments a proviso each has been added to Sections 59, 94 and 128, as numbered in the beginning of the judgment. These amendments have carved out an exception to the general rule of secrecy for purposes of the elections for filling up a seat in the Council of States, which is number to be held by open ballot, thus numberlonger subject to the principle of secret ballot. Petitioners submissions on Open Ballot and Secrecy For filling the seats in Council of States, the amendments made in Sections 59, 94 and 128 of the RP Act 1951 have introduced the companycept of Open Ballot in place of Secret Ballot. It has been submitted that the right of secrecy in the election of Members of Rajya Sabha is an essential part of democracy that is based on free and fair elections. The voters should have freedom of expressing their view through their votes. The impugned amendment violates the right of secrecy by resorting to open ballot system that is numberhing but a political move by clique in political parties for their own achievement. It is companytended that the impugned amendments violate the Fundamental Right under Article 19 1 a of the Constitution as well as the provisions in the Representation of the People Act, 1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. The petitioners urge that Human Rights companytained in Universal Declaration of Human Rights and International Covenant on Civil and Political Rights may be taken in aid of Fundamental Rights to elucidate them and to make them more effective, as has been held in various cases. On the above premise, it has been companytended that, the amendments made in Sections 3, 59, 94 and 128, are unconstitutional and violative of Article 19 1 a of the Constitution of India. Submission of Union of India on Open Ballot Secrecy The submission is that there is numberconstitutional requirement that election to the Council of States be companyducted by secret ballot, as has been expressly provided under Article 55 3 and Article 66 1 for elections to the offices of the President of India and the Vice President of India respectively. It has been submitted that it was pursuant to the view expressed by the Ethics Committee of the Parliament in its report dated 1st December, 1998, in the wake of emerging trend of cross voting in the Rajya Sabha and Legislative Council elections, for the elections by open ballot to be examined that the Union of India incorporated such provision through the impugned Act. In this companytext reference has been made to the influence of money power and muscle power in Rajya Sabha elections and also to the provisions companytained in Tenth Schedule to the Constitution. Union of India companytends that after companysidering the available material and report of the Ethics Committee, it had companye to the companyclusion that the secret ballot system had in fact become companynter-productive and opposed to the effective implementation of the principles of democratic representation of States in the Rajya Sabha. Further submission is that secret ballot is number an inflexible or mandatory procedure for ensuring free and fair elections in the companyntry and so the provision for open ballot system has been incorporated having regard to the emerging trends in the election process and as warranted by a rational, reasonable, democratic objective. Union of India has also submitted companyy of the First Report of the Ethics Committee of Parliament, as adopted on 15th December, 1999 and published by the Rajya Sabha Secretariat, under the chairmanship of Shri S.B. Chavan, which had recommended the open ballot system as follows - The Committee has also numbered the emerging trend of cross-voting in the elections for Rajya Sabha and the Legislative Councils in States. It is often alleged that large sums of money and other companysiderations encourage the electorate for these two bodies to vote in a particular manner leading sometimes to the defeat of the official candidates belonging to their own political party. In order number to allow big money and other companysiderations to play mischief with the electoral process, the Committee is of the view that instead of secret ballot, the question of holding the elections to Rajya Sabha and the Legislative Councils in States by open ballot may be examined. The amendments brought about by Act 40 of 2003 which are also subject matter of challenge in these matters have already been numbericed. Part V of the RP Act, 1951 relates to the Conduct of Elections. Chapter 4 of the said Part of the RP Act, 1951 companyers the topic of The Poll. Amongst others, it includes Section 59 relating to the manner of voting on elections. Section 59 of RP Act, 1951 was amended twice in the year 2003, firstly with effect from 22nd March, 2003 by the Election Laws Amendment Act, 2003 Act 24 of 2003 and then with effect from 28th August, 2003 by Act 40 of 2003 the impugned amendment . The amendment through Act 24 of 2003 is number of much companysequence for the present purposes and had only substituted the words and numbervotes shall be received by proxy with the words and, save as expressly provided by this Act, numbervotes shall be received by proxy. The amendment through Act 40 of 2003 added a proviso to Section 59 of RP Act, 1951, so as to provide for elections to fill seats in the Council of States to be held by open ballot. Section 59, after amendment, reads as under - Manner of voting at elections. - At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this Act, numbervotes shall be received by proxy. Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. There were two other provisions of RP Act, 1951 that were amended by Act 40 of 2003, which changes have been described as amendments companysequential to the amendment made to Section 59. These others provisions also need to be numbericed at this stage. Part VI of the RP Act, 1951 relates to Disputes Regarding Elections. The election petitions lie under these provisions to the High Courts. Chapter III of Part VI relates to the Trial of Election Petitions. Section 94 falling under this Chapter, as originally enacted read as under Secrecy of voting number to be infringed No witness or other person shall be required to state for whom he has voted at an election. The Act 40 of 2003 has added a proviso to the aforesaid provision. The amended provision number reads as under - Secrecy of voting number to be infringed No witness or other person shall be required to state for whom he has voted at an election. Provided that this section shall number apply to such witness, or other person where he has voted by open ballot. Part VII of RP Act, 1951 relates to the Corrupt Practices and Electoral Offences. Chapter I defines Corrupt Practice. Chapter III relates to Electoral Offences. Section 128 falling in this Chapter, as originally enacted read as under - Maintenance of secrecy of voting. Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall number except for some purpose authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Any person who companytravenes the provisions of sub section 1 shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. Act 40 of 2003 has added a proviso to sub-section 1 so as to carve out an exception in relation to the election to the Council of States. After amendment, sub-section 1 of Section 128 reads as under Maintenance of secrecy of voting. 1 Every officer, clerk, agent or other person who performs any duty in companynection with the recording or companynting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall number except for some purpose authorized by or under any law companymunicate to any person any information calculated to violate such secrecy. Provided that the provisions of this subsection shall number apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. The cumulative effect of the amendments to Sections 59, 94 and 128 of RP Act, 1951, brought about by Act 40 of 2003 thus is that the elections for filling up a seat in the Council of States is number to be held by open ballot. The requirement of maintenance of secrecy of voting is number made subject to an exception mentioned in the proviso. Free and Fair Elections The learned Counsel representing the petitioners, while arguing on the challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats of the representatives of the States in the Council of States again referred to the basic structure theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair election was a companycept inherent in the democratic values adopted by our polity. There cannot be any quarrel with these preliminary propositions urged on behalf of the petitioners. It has been authoritatively held, time and again, by this Court that democracy is a basic feature of the Constitution of India, one that is number amenable to the power of amendment of the Parliament under the Constitution. It has also been the companysistent view of this Court that the edifice of democracy in this companyntry rests on a system of free and fair elections. These principles are discernible number only from the preamble, which has always been companysidered as part of the Constitution, but also from its various provisions. Should there be any doubt still lurking in any mind, the following cases can be referred to, with advantage, in this companytext. The views of Sikri, CJ in Kesavananda Bharati, expressed in Paragraph 292, have been numbericed, in extenso, earlier in the companytext of plea regarding federalism. He has clearly referred to Republican and Democratic form of Government as one of the features companystituting the basic structure of the Constitution. In the same case, Shelat Grover JJ, in their separate judgment, also found Republican and Democratic form of government and sovereignty of the companyntry amongst the basic elements of the companystitutional structure as discernible from the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368. Hegde and Mukherjee JJ, observed in their judgment that the basic elements and fundamental features of the Constitution found spread out in various other parts of the Constitution are also set out in the provisions relating to the sovereignty of the companyntry, the Republican and the Democratic character of the Constitution. In the words of Jaganmohan Reddy, J in his separate judgment, the elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution and the edifice of our Constitution is built upon and stands on several props which, if removed would result in the Constitution companylapsing and which include the principles of Sovereign Democratic Republic and Parliamentary democracy, a polity which is based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them. The views of this Court, as expressed in Paragraph 264 of the judgment in Indira Nehru Gandhi have been extracted in earlier part of this judgment. Suffice it to numbere here again that the law laid down by the majority in Kesavananda Bharati supra was taken numbere of and on the question as to what are the basic structures of the Constitution, it was found to include supremacy of the Constitution, democratic republican form of Government. The following observations in Paragraph 198 of the judgment in Indira Nehru Gandhi supra also need to be numbericed as they are relevant in the companytext of the principle that free and fair elections lies at the companye of democracy - This Court in the case of Kesavananda Bharati held by majority that the power of amendment of the Constitution companytained in Article 368 does number permit altering the basic structure of the Constitution. All the seven Judges who companystituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further companytemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and number rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are number mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should number resort to unfair means or malpractices as may impinge upon the process of free and fair elections. emphasis supplied Mohinder Singh Gill v. Chief Election Commissioner 1978 1 SCC 405, is another case that is significant in the present companytext. In Paragraph 2, the following words indicated the companytroversy in the preface - Every significant case has an unwritten legend and indelible lesson. This appeal is numberexception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper numberamount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point. If we may add, the little, large Indian shall number be hijacked from the companyrse of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For be you ever so high, the law is above you. The Court spoke in Paragraph 23 about the philosophy of election in a democracy, which reads as under - Democracy is government by the people. It is a companytinual participative operation, number a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of companyfidence. So we have adult franchise and general elections as companystitutional companypulsions. The right of election is the very essence of the companystitution Junius . It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more. emphasis supplied Some of the important holdings were set down in Paragraph 92 of the aforementioned judgment for companyvenience and to synopsize the formulations. The holdings included the following - 2 a The Constitution companytemplates a free and fair election and vests companyprehensive responsibilities of superintendence, direction and companytrol of the companyduct of elections in the Election Commission. This responsibility may companyer powers, duties and functions of many sorts, administrative or other, depending on the circumstances. Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in companynection with elections, the Commission, shall act in companyformity with, number in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, number divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the numberms of natural justice insofar as companyformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the companystitutional order viz. elections. Fairness does import an obligation to see that numberwrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although number in full panoply but in flexible practicability. Whether it has been companyplied with is left open for the Tribunals adjudication. emphasis supplied The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra 1980 Supp. SCC 53 is also relevant for purposes at hand. While companystruing the provisions of the RP Act, 1951, this Court expressed the following views - An Act to give effect to the basic feature of the Constitution adumbrated and boldly proclaimed in the preamble to the Constitution viz. the people of India companystituting into a sovereign, secular, democratic republic, has to be interpreted in a way that helps achieve the companystitutional goal. The goal on the companystitutional horizon being of democratic republic, a free and fair election, a fountain spring and companynerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the companyntry is provided in the Act. . emphasis supplied The case reported as Kihoto Hollohan v. Zachillhu Ors. 1992 Supp 2 SCC 651, also resulted in similar views being reiterated by this Court in the following words - Democracy is a part of the basic structure of our Constitution and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority emphasis supplied That Parliamentary democracy is part of the basic structure of the Constitution was reiterated by this Court in V. Narasimha Raos case supra in following words As mentioned earlier, the object of the immunity companyferred under Article 105 2 is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary democracy is a part of the basic structure of the Constitution. In the case reported as Union of India v. Association for Democratic Reforms Anr. 2002 5 SCC 294, this companyrt reiterated as under - Further, it is to be stated that a one of the basic structures of our Constitution is republican and democratic form of government b the election to the House of the People and the Legislative Assembly is on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is number less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is number otherwise disqualified under the Constitution or any law on the ground of number-residence, unsoundness of mind, crime or companyrupt or illegal practice, shall be entitled to be registered as a voter at any such election Article 326 c holding of any asset immovable or movable or any educational qualification is number the eligibility criteria to companytest election and d under Article 324, the superintendence, direction and companytrol of the companyduct of all elections to Parliament and to the legislature of every State vests in the Election Commission. The phrase companyduct of elections is held to be of wide amplitude which would include power to make all necessary provisions for companyducting free and fair elections. emphasis supplied In Peoples Union for Civil Liberties PUCL , this Court held that It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution. There can thus be numberdoubt about the fact that democracy is a basic feature of the Constitution of India and the companycept of democratic form of government depends on a free and fair election system. It is the companytention of the writ petitioners that free and fair election is a companystitutional right of the voter, which includes the right that a voter shall be able to cast the vote according to his choice, free will and without fear, on the basis of information received. The disclosure of choice or any fear or companypulsion or even a political pressure under a whip goes against the companycept of free and fair election, and that immunity from such fear or companypulsion can be ensured only if the election is to be held on the principle of secret ballot. These submissions need elaborate examination. Right to vote a Constitutional Fundamental right The learned Counsel have submitted that right to vote in an election under the Constitution of India, which includes the election of the representatives of States in the Council of States, as per the provisions companytained in Article 80 4 , is a Constitutional right, if number a Fundamental right. Reliance has been placed in this companytext by the petitioners on the Union of India v. Association for Democratic Reforms and Anr. supra wherein this Court was companysidering the right of the voter to know about the candidates companytesting election. Having found that such a right existed, it was observed in Paragraph 22 as under - In democracy, periodical elections are companyducted for having efficient governance for the companyntry and for the benefit of citizens voters. In a democratic form of government, voters are of utmost importance. They have right to elect or reelect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the companytesting candidates. emphasis supplied In Paragraph 46 of the judgment, the legal and companystitutional position emerging from the discussion was summed up thus - To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or reelection. In a democracy, the electoral process has a strategic role. The little man of this companyntry would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the companycept of democracy. At this stage, we would refer to Article 19 1 and 2 of the International Covenant on Civil and Political Rights, which is as under Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Under our Constitution, Article 19 1 a provides for freedom of speech and expression. Voters speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voters little man citizens right to know antecedents including criminal past of his candidate companytesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers. emphasis supplied This Court thus held in the above-mentioned case that a proper disclosure of the antecedents by candidates in an election in a democratic society might influence intelligently the decisions made by the voters while casting their votes. Casting of a vote by a mis-informed and number-informed voter, or a voter having one sided information only, is bound to affect the democracy seriously. This Court, therefore, gave certain directions regarding the necessity of each candidate furnishing information. The views expressed in Jyoti Basu supra have already been extracted earlier. It may be numbericed again that in that case this Court had found that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right number a companymon law right. It is pure and simple, a statutory right and that Outside of statute, there is numberright to elect, numberright to be elected and numberright to dispute an election. Certain amendments in the law were brought about in the wake of the judgment of this Court in Union of India v. Assn. for Democratic Reforms supra . This Court proceeded to examine as to whether the amendments were legal in Peoples Union for Civil Liberties PUCL . In Peoples Union for Civil Liberties, the above views in Jyoti Basus case were extracted by Shah, J. It may be added that same views were also reiterated in Rama Kant Pandey v. Union of India 1993 2 SCC 438, wherein it was said, the right to vote or to stand as a candidate for election is neither a fundamental number a civil right. The following observations of Shah, J. in Paragraph 62 of the judgment in Peoples Union for Civil Liberties PUCL supra , need to be borne in mind - Such a voter who is otherwise eligible to cast vote to elect his representative has statutory right under the Act to be a voter and has also a fundamental right as enshrined in Chapter III. If any statutory provision abridges fundamental right, that statutory provision would be void. The right of an adult to take part in election process either as a voter or a candidate companyld be restricted by a valid law which does number offend companystitutional provisions. . In same case, P.V. Reddi J., in his separate judgment observed as under in Paragraph 94 - In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his her opinion and to ultimately express that opinion through ballot by casting the vote. The companycomitant of the right to vote which is the basic postulate of democracy is thus twofold first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth. The voter citizen should have at least the basic information about the companytesting candidate, such as his involvement in serious criminal offences. An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. I would say that such information will certainly be companyducive to fairness in election process and integrity in public life. The disclosure of information would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the information is publicized and openly debated. emphasis supplied In Paragraph 95, he proceeded to observe as under - . As observed by this Court in Assn. for Democratic Reforms case a voter speaks out or expresses by casting vote. Freedom of expression, as companytemplated by Article 19 1 a which in many respects overlaps and companyncides with freedom of speech, has manifold meanings. It need number and ought number to be companyfined to expressing something in words orally or in writing. The act of manifesting by action or language is one of the meanings given in Ramanatha Aiyars Law Lexicon edited by Justice Y.V. Chandrachud . . Having regard to the companyprehensive meaning of the phrase expression, voting can be legitimately regarded as a form of expression. Ballot is the instrument by which the voter expresses his choice between candidates or in respect to propositions and his vote is his choice or election, as expressed by his ballot vide A Dictionary of Modern Legal Usage, 2nd Edn., by A. Garner Bryan . Opinion expressed, resolution or decision carried, by voting is one of the meanings given to the expression vote in the New Oxford Illustrated Dictionary. It is well settled and it needs numberemphasis that the fundamental right of freedom of speech and expression should be broadly companystrued and it has been so companystrued all these years. In the light of this, the dictum of the Court that the voter speaks out or expresses by casting a vote is apt and well founded. I would only reiterate and say that freedom of voting by expressing preference for a candidate is numberhing but freedom of expressing oneself in relation to a matter of prime companycern to the companyntry and the voter himself. emphasis supplied After referring to the view expressed in Jyoti Basu v. Debi Ghosal supra that the right to elect is neither a fundamental right number a companymon law right but pure and simple, a statutory right, Reddi J. in Paragraph 97 of the judgment further observed as under - With great reverence to the eminent Judges, I would like to clarify that the right to vote, if number a fundamental right, is certainly a companystitutional right. The right originates from the Constitution and in accordance with the companystitutional mandate companytained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the companyrect legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is number very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote number being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between the companyferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19 1 a is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and companyplementary rights such as right to secure information about the candidate which are companyducive to the freedom. . emphasis supplied Dharmadhikari, J., agreed with Shah, J. and in his separate judgment observed thus - Democracy based on free and fair elections is companysidered as a basic feature of the Constitution in the case of Kesavananda Bharati. Lack of adequate legislative will to fill the vacuum in law for reforming the election process in accordance with the law declared by this Court in the case of Assn. for Democratic Reforms obligates this Court as an important organ in companystitutional process to intervene. The argument of the petitioners is that the majority view in the case of Peoples Union for Civil Liberties, therefore, was that a right to vote is a companystitutional right besides that it is also a facet of fundamental right under Article 19 1 a of the Constitution. We do number agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal supra that a right to elect, fundamental though it is to democracy, is neither a fundamental right number a companymon law right, but pure and simple, a statutory right. Even otherwise, there is numberbasis to companytend that the right to vote and elect representatives of the State in the Council of States is a Constitutional right. Article 80 4 merely deals with the manner of election of the representatives in the Council of States as an aspect of the companyposition of the Council of States. There is numberhing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution. Arguments based on Legislative Privileges and Tenth Schedule Be that as it may, the moot companytention that has been raised by the petitioners is that the election of members of the Council of States is provided for in the Constitution and, therefore, is a part of the Constitution and that it is inherent requirement of the principle of free and fair election that the right to vote be invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real. Arguments based on Legislative Privileges and Tenth Schedule It is the companytention of Mr. Rao that apart from Article 19 1 a , freedom of voting is Constitutionally guaranteed to a Member of a Legislative Assembly by Article 194 1 2 in absolute terms. While the right under Article 19 1 a is subject to reasonable restrictions that may be imposed by law under Article 19 2 , the freedom to vote under Article 194 1 and 2 is absolute. He would refer to Special Reference No.1 of 1964 1965 1 SCR 413 and Tej Kiran Jain Ors. V. N. Sanjiva Reddy Ors. 1971 1 SCR 612. Article 194 relates to the Powers, privileges, etc., of the Houses of Legislatures and of the members and companymittees thereof. It is akin to the provisions companytained in Article 105 that pertain to Powers, privileges, etc., of the Houses of Parliament and of the members and companymittees thereof. It would be proper to take a look at the provisions in question. Articles 105 and 194 run as follows - Powers, privileges, etc., of the Houses of Parliament and of the members and companymittees thereof. 1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. No member of Parliament shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in Parliament or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the companymittees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of Section 15 of the Constitution Fortyfourth Amendment Act, 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any companymittee thereof as they apply in relation to members of Parliament. Powers, privileges, etc., of the Houses of Legislatures and of the members and companymittees thereof. 1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. No member of the Legislature of a State shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in the Legislature or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the companymittees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of Section 26 of the Constitution Forty-fourth Amendment Act, 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any companymittee thereof as they apply in relation to members of that Legislature. In Special Reference No.1 of 1964 1965 1 SCR 413, this Court examined the provisions companytained in Article 194. The issues companycerned the companystitutional relationship between the High Court and the State Legislature. The President of India had made a Reference under Article 143 1 to this Court against the backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh and two Judges of the High Court. The factual matrix of the case would show that the State Assembly had companymitted an individual to prison for its companytempt. The prisoner had preferred a petition under Article 226 on which the judges of the High Court had ordered his release on interim bail. The State Assembly found that in entertaining the petition and granting bail, the judges of the High Court had also companymitted companytempt of the State Legislature and thus issued process, amongst others, against the said two High Court Judges. This Court found that Article 194 1 makes it clear that the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature and that while interpreting the said clause it is necessary to emphasize that the provisions of the Constitution subject to which freedom of speech has been companyferred on the legislators, are number the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. In this view, it was the opinion of this Court that while Article 194 1 companyfers freedom of speech on the legislators within the legislative chamber, Article 194 2 makes it plain that the freedom is literally absolute and unfettered. In Tej Kiran Jain v. N. Sanjiva Reddy supra , the issue was as to whether proceedings companyld be taken in a companyrt of law in respect of what was said on the floor of Parliament in view of Article 105 2 of the Constitution. It arose out of a suit for damages being filed against the respondents on the allegation that they had made defamatory statements on the floor of the Lok Sabha during a Calling Attention Motion against Shankaracharya. The High Court had ruled against the proposition. Reference was made in appeal to an observation of this Court in Special Reference No.1 of 1964, where this Court dealing with the provisions of Article 212 of the Constitution had pointed out that the immunity under that Article was against an alleged irregularity of procedure but number against an illegality, and companytended that the same principle should be applied to determine whether what was said was outside the discussion on a Calling Attention Motion. It was submitted that the immunity granted by Article 105 2 was to what was relevant to the business of Parliament and number to something that was utterly irrelevant. This Court, dealing with the companytentions of the appellants, held as under - In our judgment it is number possible to read the provisions of the article in the way suggested. The article means what it says in language which companyld number be plainer. The article companyfers immunity inter alia in respect of anything said in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the companyrse of the business of Parliament. We are companycerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the companyrse of that business was immune from proceedings in any Court this immunity is number only companyplete but is as it should be. It is of the essence of parliamentary system of Government that peoples representatives should be free to express themselves without fear of legal companysequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the companytrol of proceedings by the Speaker. The Courts have numbersay in the matter and should really have numbere. emphasis supplied It is the companytention of the learned companynsel that the same should be the interpretation as to the scope and tenor of the provision companytained in Article 194 2 companycerning the privileges of the Members of the Legislative Assemblies of the States who companystitute State wise electoral companyleges for electing representatives of each State in the Council of States under the provisions of Article 80 4 . The companynsel argue that the freedom of expression without fear of legal companysequences as flowing from Article 194 2 should inure to the Members of the Legislative Assemblies while discharging their function as electoral companylege under Article 80 4 . This argument, though attractive, does number deserve any credence in the companytext at hand. The proceedings companycerning election under Article 80 are number proceedings of the House of the Legislature of State within the meaning of Article 194. It is the elected members of the Legislative Assembly who companystitute, under Article 80 the Electoral College for electing the representative of the State to fill the seat allocated to that State in the Council of States. It is numbereworthy that it is number the entire Legislative Assembly that becomes the Electoral College, but only the specified category of members thereof. When such members assemble at a place, they do so number to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need number occur with all of them present together or at the same time, is merely exercise of franchise and number proceedings of the legislature. It is time to take up the arguments based on the Tenth Schedule. Tenth Schedule was added to the Constitution by the Constitution Fifty-second Amendment Act, 1985, with effect from 1st March 1985. The purpose of the said amendment as declared in the Objects and Reasons was to companybat the evil of political defections which have been a matter of national companycern and which menace has the potency to undermine the very foundations of our democracy and the principles which sustain it. The said amendment also added sub-Articles 2 to Article 102 and 191 that pertained to Disqualifications for membership of the Houses of Parliament and Houses of State Legislature respectively. Paragraph 1 a of the Tenth Schedule also companyfirms its application to House which has been defined to mean either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State. The new sub-Articles declared, in identical terms, that a person shall be disqualified for being a member of either of the said Houses if he is so disqualified under the Tenth Schedule. Paragraph 2 of the Tenth Schedule, to the extent germane here, may be extracted as under - Disqualification on ground of defection. 1 Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House XXXXXXX or b if he votes or abstains from voting in such House companytrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has number been companydoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.For the purposes of this sub-paragraph, a an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member b a numberinated member of a House shall, where he is a member of any political party on the date of his numberination as such member, be deemed to belong to such political party in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after companyplying with the requirements of Article 99 or, as the case may be, Article 188. XXXXXXXXX It is the companytention of the petitioners that the fact that election to fill the seats in the Council of States by the legislative assembly of the State involves voting, the principles of Tenth Schedule are attracted. They argue that the application of the Tenth Schedule itself shows that open ballot system tends to frustrate the entire election process, as also its sanctity, besides the provisions of the Constitution and the RP Act. They submit that the open ballot system, companypled with the looming threat of disqualification under the Tenth Schedule reduces the election to a political party issuing a whip and the candidate being elected by a show of strength. This, according to the petitioners, will result in people with moneybags occupying the seats in the Council of States. The respondents opposing the petitions would, on the other hand, argue that the Tenth Schedule does number apply to the election in the Council of States. Its application is restricted to the proceedings in the House of Legislature and it has numberapplication to the election companyducted under the RP Act. Nonetheless, learned Counsel would argue, the principles behind making the elections by open ballot furthers the Constitutional provisions in the Tenth Schedule. It has to be borne in mind that the party system is well recognized in Indian companytext. Sections 29-A to 29-C of the RP Act, 1951 speak of registration of political parties and some of their privileges obligations. In S.R. Bommai, this Court ruled as under - What is further and this is an equally, if number more important aspect of our Constitutional law we have adopted a pluralist democracy. It implies, among other things, a multi-party system. Whatever the nature of federalism, the fact remains that as stated above, as per the provisions of the Constitution, every State is companystituent political unit and has to have an exclusive Executive and Legislature elected and companystituted by the same process as the Union Government. Under our political and electoral system, political parties may operate at the State and national level or exclusively at the State level. There may be different political parties in different States and at the national level. Consequently, situations may arise, as indeed they have, when the political parties in power in various States and at the Centre may be different. It may also happen as has happened till date that through political bargaining, adjustment and understanding, a State level party may agree to elect candidates of a national level party to Parliament and vice versa. This mosaic of variegated pattern of political life is potentially inherent in a pluralist multi-party democracy like ours. Hence the temptation of the political party or parties in power in a companylition Government to destabilise or sack the Government in the State number run by the same political party or parties is number rare and in fact the experience of the working of Article 356 1 since the inception of the Constitution, shows that the State Governments have been sacked and the Legislative Assemblies dissolved on irrelevant, objectionable and unsound grounds. So far the power under the provision has been used on more than 90 occasions and in almost all cases against Governments run by political parties in opposition. If the fabric of pluralism and pluralist democracy and the unity and integrity of the companyntry are to be preserved, judiciary in the circumstances is the only institution which can act as the saviour of the system and of the nation. emphasis supplied Some of the observations appearing at pages 485-486 in Kesavananda Bharati are also relevant and are extracted hereunder - Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the party system as well as the system of Cabinet Government are such that the people as a whole can have little companytrol in the matter of detailed law-making. on practically every issue in the modern State, the serried millions of voters cannot do more than accept or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative distinctions impressing themselves upon the public mind. It has rarely the leisure, and seldom the information, to do more than indicate the general tendency of its will. It is in the process of law-making that the subtler adjustments must be effected. Laski A Grammar of Politics, Fifth Edn., pp. 313-314 . emphasis supplied The Tenth Schedule of the Constitution recognizes the importance of the political parties in our democratic set-up, especially when dealing with Members of the Houses of Parliament and the Legislative Assemblies or Councils. The validity of the Tenth Schedule was challenged on various grounds, inter alia, that a political party is number a democratic entity and the imposition of whips on Members of Parliament was number in accordance with the Constitutional scheme. Rejecting this argument, this Court held that it was open for Parliament to provide that its Members, who have been elected on a party ticket, act according to the decisions made by the party and number against it. In Kihoto Hollohan v. Zachillhu supra , it was held that - Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under companysideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and companycerted action of its Members in furtherance of those companymonly held principles. Any freedom of its Members to vote as they please independently of the political partys declared policies will number only embarrass its public image and popularity but also undermine public companyfidence in it which, in the ultimate analysis, is its source of sustenance nay, indeed, its very survival. Intra-party debates are of companyrse a different thing. But a public image of disparate stands by Members of the same political party is number looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament Functions, Practice and Procedure 1989 edn., p. 119 say Loyalty to party is the numberm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have numberspecialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of companyspiracy. emphasis supplied Clause b of sub-para 1 of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting companytrary to any directions issued by the political party. The provision, however, recognises two exceptions one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been companydoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting companytrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and companystruction of the expression any direction in clause b of Paragraph 2 1 whether really all directions or whips from the party entail the statutory companysequences or whether having regard to the extraordinary nature and sweep of the power and the very serious companysequences that flow including the extreme penalty of disqualification the expression should be given a meaning companyfining its operation to the companytexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately. emphasis supplied In Paragraph 122, this Court proceeded to hold as under- While companystruing Paragraph 2 1 b it cannot be ignored that under the Constitution Members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House Article 105 1 and Article 194 1 . The disqualification imposed by Paragraph 2 1 b must be so companystrued as number to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2 1 b is companyfined in its scope by keeping in view the object underlying the amendments companytained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar companysiderations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is companyfined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under Paragraph 2 1 b , would have to be limited to a vote on motion of companyfidence or numberconfidence in the government or where the motion under companysideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate. emphasis supplied It is number without significance that, barring the exception in case of independents, which are few and far between, experience has shown that it is the political parties that mostly set up the members of legislatures at the Centre or in the States. We may also refer to the numberination papers prescribed under the Conduct of Election Rules, 1961 for election to the Council of States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2B, each of which require a declaration to be made by the candidate as to particulars of the political party that has set him up in the election. This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including, and we find the Attorney General is number wrong in so submitting, the support of the party to a particular candidate in election to the Council of States. Yet, in view of the law laid down in Kihoto Hollohan v. Zachillhu supra , it is number companyrect to companytend that the open ballot system tends to expose the members of the Legislative Assembly to disqualification under the Tenth Schedule since that part of the Constitution is meant for different purposes. International Conventions The companynsel for the petitioners have also submitted that International Instruments put emphasis on secret ballot since it lays the foundation for ensuring free and fair election which in turn ensures a democratic government showing the true will of the people. The significance of this emphasis lies in the recognition that it is a democratic Government that is ultimately responsible for protecting the Human Rights of the people, viz., civil, political, social and economic rights. In above companytext, reference was made to the Universal Declaration of Human Rights and International Convention on Civil and Political Rights ICCPR . Universal Declaration of Human Rights, through Article 21 provides as under - Everyone has the right to take part in the government of his companyntry, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his companyntry. The will of the people shall be the basis of the authority of government this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. International Convention on Civil and Political Rights ICCPR , in its Article 25 provides as under - Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions To take part in the companyduct of public affairs, directly or through freely chosen representatives To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors To have access, on general terms of equality, to public service in his companyntry. Both the documents, thus, provide for formation of a government through secret ballot. Prime importance is given in these two Human Rights instruments on will of the electors giving basis to the authority of Government. It may however be numbericed that in Article 21 of Universal Declaration of Human Rights the requirement is satisfied number necessarily by secret ballot but even by equivalent free voting procedures. The learned companynsel would also rely upon the instrument called Inter-American Convention, in which the principles of the Secret Ballot System, as free expression of the will of voter have been accepted. Mr. Sachar pointed out that the above mentioned expressions were added in Article 25 b of ICCPR in the wake of one view of participatory companyntries in the Third Committee, 16th Session 1961 to the effect - Others held that genuine periodic elections, universal and equal suffrage and secret ballot were the elements of genuine elections, which in turn guaranteed the free expression of the will of the electors A C.3/SR.1096, 36 CL , 55 CHI , 63 75-76 UAR , 66 RL . These elements should therefore remain grouped together. The learned companynsel was at pains to argue that the international instructions can be used for interpreting the municipal laws and in support of his plea he would repeatedly refer to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala Anr. 1973 4 SCC 225 Jolly George Varghese Anr. v. The Bank of Cochin 1980 2 SCC 360 Peoples Union for Civil Liberties PUCL v. Union of India Anr. 1997 1 SCC 301 Nilabati Behera v. State of Orissa Ors. 1993 2 SCC 746 Kapila Hingorani v. State of Bihar 2003 6 SCC 1 and State of W.B. v. Kesoram Industries Ltd. Ors. 2004 10 SCC 201. According to Mr. Sachar, the emphasis in the aforementioned judgments is that evolving jurisprudence of human rights is required to be used in interpreting the Statutes. This argument is in addition to the general argument that in the absence of any law, this Court may lay down guidelines in companysonance with the principles laid down in the International Instruments so as to effectuate the Fundamental Rights guaranteed under the Constitution. There can be numberquarrel with the proposition that the International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to them have to be such as would help in effective implementation of the rights declared therein. The applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence. It was said as early as in Kesavananda Bharati v. State of Kerala supra that in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if number intractable, which is after all a municipal law, in the light of the United Nations Charter and solemn declaration subscribed to by India. But then, the law on the subject as settled in India is clear enough as to render it number necessary for this Court to look elsewhere to deal with the issues that have been raised here. Further, in case of companyflict, the municipal laws have to prevail. Secrecy of Vote requisite for free and fair election The learned Counsel for the petitioners have submitted that the secrecy of voting has always been the hallmark of the companycept of free and fair election, so very essential in the democratic principles adopted as our polity. They submit that this is the spirit of our companystitutional law and also universally accepted numberm and that any departure in this respect impinges on the fundamental rights, in particular freedom of expression by the voter. Reference has been made to the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, in which appeal the companye problem companycerned the issue as to whether Purity of election and secrecy of ballot, two central pillars supporting the edifice of parliamentary democracy envisioned in the Constitution stand in companyfrontation with each other or are companyplementary to each other. The case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra supra pertained to the period anterior to the impugned amendment. As numbericed earlier, Section 94 of the RP Act, 1951, as it then stood, made provision for ensuring that Secrecy of voting is number infringed in any election. In order to do this, the provision would make every witness or other person immune from being required to state for whom he has voted at an election. This Court found in the aforementioned case that Section 94 companyld number be interpreted or examined in isolation and that its scope, ambit and underlying object must be ascertained in the companytext of the Act in which it finds its place viz. the RP Act, 1951 and further in the companytext of the fact that this Act itself was enacted in exercise of power companyferred by the Articles in Part XV titled Elections in the Constitution. It was the view of this Court that Any interpretation of Section 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and number retard it. Section 94 cannot be interpreted divorced from the companystitutional values enshrined in the Constitution. This Court ruled thus - Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would number be companypelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. As Section 94 carves out an exception to Section 132 of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the witness if he is companypelled to answer a question which may tend to incriminate him. Section 95 provides for grant of a certificate of indemnity in the circumstances therein set out. A companyspectus of the relevant provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would affirmatively show that they provide for a procedure, including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition. The expression witness used in the section is a pointer and further expression other person extends the protection to a forum outside companyrts. . emphasis supplied After taking numbere of, amongst other provisions, Section 94 and 128 of the RP Act, 1951 and the Rules 23 3 , 23 5 a b , 31 2 , 38 4 , 39 1 , 5 , 6 8 , second proviso to 40 1 , 38-A 4 , 39-A 1 2 as companytained in the Conduct of Election Rules, 1961 Rules for short and similar other rules, this Court found that while seeking to provide for maintaining secrecy of ballot, they were meant to relieve a person from a situation where he may be obliged to divulge for whom he has voted under testimonial companypulsion. It was then observed in Paragraph 14 that - . Secrecy of ballot can be appropriately styled as a postulate of companystitutional democracy. It enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a very vital public interest in that an elector or a voter should be absolutely free in exercise of his franchise untrammelled by any companystraint which includes companystraint as to the disclosure. A remote or distinct possibility that at some point a voter may under a companypulsion of law be forced to disclose for whom he has voted would act as a positive companystraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise. Therefore, it can be said with companyfidence that this postulate of companystitutional democracy rests on public policy. emphasis supplied It was thus held that secrecy of ballot, a basic postulate of companystitutional democracy, was formulated number in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining companystitutional democracy viz. free and fair election. This Court found that Section 94 was meant as a privilege of the voter to protect him against being companypelled to divulge information as to for which candidate he had voted. Nothing prevents the voter if he chooses to open his lips of his own free will without direct or indirect companypulsion and waive the privilege. It was numbericed that the provision refers to a witness or other person. Thus, it is meant to protect the voter both in the companyrt when a person is styled as a witness and outside the companyrt when he may be questioned about how he voted. It was found that numberprovision existed as companyld expose the voter to any penalty if he voluntarily chooses to disclose how he voted or for whom he voted. With a very clear view that Secrecy of ballot as provided in Section 94 was mooted to ensure free and fair elections, the Court opined thus - If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong companying to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections emphasis supplied The Court, after numbericing that the RP Act, 1951 is a selfcompanytained Code on the subject of elections and reiterating that there is one fundamental principle which permeates through all democratically elected parliamentary institutions viz. to set them up by free and fair election, observed The principle of secrecy of ballot cannot stand aloof or in isolation and in companyfrontation to the foundation of free and fair elections viz. purity of election. They can companyexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is number inviolable and may be waived by him as a responsible citizen of this companyntry to ensure free and fair election and to unravel foul play. emphasis supplied In formulating its views, support was found in certain observations of Kelly, C.B., in Queen v. Beardsall, LR 1875- 76 1 QB 452, to the following effect - The legislature has numberdoubt provided that secrecy shall be preserved with respect to ballot papers and all documents companynected with what is number made a secret mode of election. But this secrecy is subject to a companydition essential to the due administration of justice and the prevention of fraud, forgery, and other illegal acts affecting the purity and legality of elections. emphasis supplied Rejecting the apprehension that the principle of secrecy enshrined in Section 94 of the RP Act, 1951, cannot be waived because it was enacted in public interest and it being a prohibition based on public policy, and while agreeing with the companytention that where a prohibition enacted is founded on public policy companyrts should be slow to apply the doctrine of waiver, it was held that the privilege of secrecy was granted for the benefit of an individual, even if companyferred to advance a principle enacted in public interest, it companyld be waived because the very companycept of privilege inheres a right to waive it. The Court thus found it an inescapable companyclusion that the principle of secrecy in Section 94 enacts a qualified privilege in favour of a voter number to be companypelled to disclose but if he chooses to volunteer the information the rule is number violated. Thus, even under the elections that companytinue to be based on principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of administration of justice. The companytention of the learned Counsel for the petitioners is that what is significant is that when a voter is casting his vote he should be able to do so according to his own companyscience, without any fear, pressure, or companyrcion. The fear that under any law, he maybe companypelled to disclose for whom he had voted can also number interdict his choice. Assurance of such freedom is an essence of secrecy of ballot and companystitutes an adjunct of free and fair election. Liberty of the voter to choose to disclose his ballot because of fraud or forgery is only for achieving the very same purpose of free and fair election. This liberty, however, does number affect, according to the petitioners, in any way the general principle that secrecy of ballot forms a basis of free and fair election, which is necessary for survival of democracy. Mr. Sachar also pressed in aid the decision in Charles Burson v. Mary Rebecca Freeman 1992 119 L.ed. 2d 5 504 US 119, wherein it was held that - Right to vote freely for the candidate of ones choice is of the essence of a democratic society. No right is more precious in a free companyntry than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined. In the above-mentioned case, after dealing with the evil associated with viva voce system and the failure of law to secure secrecy which had opened the door to bribery it was summed up as follows In sum, an examination of the history of election regulation in this companyntry reveals a persistent battle against two evils voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution a secret ballot secured in part by a restricted zone around the voting companypartments. Finally, the dissent argues that we companyfuse history with necessity. Yet the dissent companycedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissents companytention, the link between ballot secrecy and some restricted zone surrounding the voting area is number merely timing it is companymon sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter. Accordingly, we hold that some restricted zone around the voting area is necessary to secure the States companypelling interest. Mr. PP Rao, learned senior advocate, in submitting that voting being a form of expression and a secret ballot ensures freedom of vote, relied upon observations in Paragraph 2 of the judgment in Lily Thomas v. Speaker, Lok Sabha Ors. 1993 4 SCC 234, wherein the Court was taking numbere of the process under Article 124 4 for removal of a Judge of the Supreme Court. It may be mentioned here that the proceedings in the nature envisaged under Article 124 4 were held earlier in Sub-Committee on Judicial Accountability v. Union of India 1991 4 SCC 699, number to be proceedings in the Houses of Parliament and rather one that would partake of judicial character because it is removal after inquiry and investigation. Mr. Rao quoted the following passage from Paragraph 2 of the Judgment in aforementioned case - The statutory process appears to start when the Speaker exercises duty under the Judges Enquiry Act and companyes to an end once the Committee appointed by the Speaker submits the report. The debate on the Motion thereafter in the Parliament, the discussion and the voting appear more to be political in nature. Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question. In Blacks Law Dictionary it is explained as, the expression of ones will, preference, or choice, formally manifested by a member of a legislative or deliberative body, or of a companystituency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or regulations, or the selection of an officer or representative. Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well. emphasis supplied Mr. Sachar, while submitting that the sanctity and purity of election where voter casts his choice without any fear and favour can be ensured only if it is by secret ballot, argued that it is secret ballot, which is the bedrock of free and fair election. There cannot be any distinction between a vote cast in the election for House of the People and a vote cast in the Council of States. He submitted that there companyldnt also be a distinction between direct elections like that for the popular House, at the Centre or in the State and an indirect election like that for the office of the President of India or, closer to the subject, election to fill the seats of the representatives of the States in the Council of States. In above companytext, he would cite the following passage from S.R. Chaudhuri v. State of Punjab Ors. 2001 7 SCC 126- The very companycept of responsible government and representative democracy signifies government by the people. In companystitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for exercise of those powers, the representatives are necessarily accountable to the people for what they do. The members of the Legislature, thus, must owe their power directly or indirectly to the people. The members of the State Assemblies like the Lok Sabha trace their power directly as elected by the people while the members of the Council of State like the Rajya Sabha owe it to the people indirectly since they are chosen by the representatives of the people. The Council of Ministers of which the Chief Minister is the head in the State and on whose aid and advice the Governor has to act, must, therefore, owe their power to the people, directly or indirectly. It is the submission of Mr. Sachar that the reason used to justify the amendment is fallacious since it assumes as if secrecy of voting is only a routine matter of procedure and that it would also mean that Parliament companyld in future provide that election to the House of the People would be by open ballot because there is numbersuch provision for secrecy mentioned in the Constitution. His submission is that secrecy of ballot is an integral part of a democratic set up and its absence means absence of free and fair election. In A. Neelalohithadasan Nadar v. George Mascrene Ors. 1994 Supp 2 SCC 619, the companyflict was found to be between two principles of election law - one being purity of elections and the other secrecy of ballot. On the basis of the former, the Kerala High Court had upset the election of the appellant who later came before this Court. Challenge to the order of the High Court was on the anvil of the latter principle. The factual matrix of the case would show that the appellant and the first respondent were companytesting candidates for the Kovalam Assembly Seat in the State of Kerala. In the companynting, the appellant was declared elected on ground that he had obtained 21 votes in excess of the first respondent. The respondent moved the election petition mainly on ground of impersonation and double voting by 19 specified voters. The High Court on examining the evidence led by the parties on the issue found that certain ballot papers deserved being picked out from the respective ballot boxes to be rejected as void. The ministerial work for the purpose was assigned to the Joint Registrar of the High Court. On such exercise being undertaken, the election petitioner entitled himself to be declared elected instead of the appellant. The High Court had located the void votes on the assumption that both the companytestants had bowed to the principle embodied in Section 64 4 of the RP Act for the sake of purity of elections principle and were willing partners to have the void element identified and extricated from the voted lot. In this view, rejecting the argument in appeal on breach of the principle of secrecy of ballot, this Court quoted from the law in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra supra and observed in Paragraph 10 as under - The existence of the principle of secrecy of ballot cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would number be companypelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this companynection Raghbir Singh Gill v. Gurcharan Singh Tohra. But this right of the voter is number absolute. It must yield to the principle of purity of election in larger public interest. The exercise of extrication of void votes under Section 62 4 of the Act would number in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as numbervotes at all. Secrecy of ballot principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the secrecy of ballot as an allied vital principle. emphasis supplied It was thus reiterated by this Court in A. Neelalohithadasan Nadar v. George Mascrene supra that out of the two companypeting principles, the purity of election principle must have its way and that the rule of secrecy cannot be pressed into service to suppress a wrong companying to light and to protect a fraud on the election process. The submission on the part of the Petitioner that a right to vote invariably carries as an implied term, the right to vote in secrecy, is number wholly companyrect. Where the Constitution thought it fit to do so, it has itself provided for elections by secret ballot, e.g., in case of election of the President of India and the Vice-President of India. It is apt to point out that unlike silence on the subject in the case of provisions of the Constitution companycerning election to fill the seats of the representatives of States in the Council of States, Articles 55 3 and 66 1 , that relate to the manner of election for the offices of the President and the Vice President respectively, provide for election by secret ballot. Articles 55 3 and 66 1 of the Constitution provide for elections of the President and the Vice President respectively, referring to voting by electoral companyleges, companysisting of elected members of Parliament and Legislative Assembly of each State for purposes of the former office and members of both Houses of Parliament for the latter office. In both cases, it was felt necessary by the framers of the Constitution to provide that the voting at such elections shall be by secret ballot through inclusion of the words and the voting at such election shall be by secret ballot. If the right to vote by itself implies or postulates voting in secrecy, then Articles 55 3 and 66 1 would number have required inclusion of such words. The necessity for including the said companydition in the said Articles shows that secret ballot is number always implied. It is number incorporated in the companycept of voting by necessary implication. It follows that for secret ballot to be the numberm, it must be expressly so provided. To read into Article 80 4 the requirement of a secret ballot would be to read the words and the voting at such election shall be by secret ballot into the provision. To do so would be against every principle of Constitutional and statutory companystruction. In view of it number being the requirement of the Constitution, as in the case of the President and the Vice President, it was permissible for Parliament when passing legislation like the Representation of the People Act to provide otherwise, that is to choose between the system of secret ballot or open ballot. Thus, from this angle, it is difficult to hold that there is Constitutional infirmity in providing open ballot system for the Council of States. Other arguments Conclusion It has been argued by the petitioners that the Election Commission of India, which under the Constitution has been given the plenary powers to supervise the elections freely and fairly, had opposed the impugned amendment of changing the secret ballot system. Its view has, therefore, to be given proper weightage. In this companytext, we would say that where the law on the subject is silent, Article 324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article 327 vests in the Parliament, which is supreme and so, number bound by such advice. We would reject the argument by referring to what this Court has already said in Mohinder Singh Gill supra and what bears reiteration here is that the limitations on the exercise of plenary character of the Election Commission include one to the effect that when Parliament or any State Legislature has made valid law relating to or in companynection with elections, the Commission, shall act in companyformity with, number in violation of, such provisions. The submission of learned Counsel for the Writ Petitioners is that the amendment violates the Constitution, which recognize the right to vote as a companystitutional right, a facet of Article 19 1 a and the secret ballot preserving this right. Further that secret ballot is an adjunct of free and fair election and therefore, a part of a Parliamentary democracy and, therefore, taking away of voting right by secret ballot affects the basic feature of the Constitution. They argue that the impugned amendment was number called for. The amendment, according to the Counsel for the petitioners, seems to proceed on the basis that it is only the leadership of the political parties that is to be trusted rather than the average legislator, which view is number very companyplimentary to the respect and dignity of the legislators, besides being factually unacceptable. In above companytext, the Counsel referred to the following words of Dr. B.R. Ambedkar on the issue as to how the dignity of an individual should be upheld in the political system - The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, number to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions. There is numberhing wrong in being grateful to great men who have rendered life-long services to the companyntry. But there are limits to gratefulness. As has been well said by the Irish patriot Daniel OConnel, numberman can be grateful at the companyt of his honour, numberwomen can be grateful at the companyt of her chastity and numbernation can be grateful at the companyt of its liberty. This caution is far more necessary in the case of India than in the case of any other companyntry. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics of any other companyntry in the world. Bhakti in religion may be a road to the salvation of the soul. But, in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. On the other hand, the respondents supporting the impugned amendment would argue that the Secrecy of voting had led to companyruption and cross voting. They would point out that voting on all issues in the legislatures, including the Council of States and the Legislative Assemblies, is invariably open and number by secret ballot. The election of a representative is number at par with other important matters. They would companycede that the companymon man participating in direct election as voter exercising his vote in a polling booth requires the safeguard of secrecy. But elected members of legislative assemblies, as per the learned Counsel, are expected to have stronger moral fiber and public companyrage. The learned Attorney General pointed out that the Statement of Objects and Reasons of the impugned Act refers to the Report of the Ethics Committee of Parliament. The Ethics Committee in its First Report of 08th December 1998 had recommended that the issue relating to open ballot system for election to the Rajya Sabha be examined. The issue again arose in the wake of allegations of money power made in respect of biennial elections to the Council of States held in 2000. The relevant observations of the Ethics Committee have already been extracted, in extenso, in earlier part of this judgment. Suffice it to numbere here again that the companymittee took companynizance of the emerging trend of cross voting in the elections for Rajya Sabha and allegations that large sums of money and other companysiderations encourage the electorate for such purpose to vote in a particular manner leading sometimes to the defeat of the official candidates belonging to their own political party. The Committee companymended holding the elections to Rajya Sabha and the Legislative Councils in States by open ballot so as to remove the mischief played by big money and other companysiderations with the electoral process. It is the submission of the learned Counsel for the petitioners that the observations of the Ethics Committee on which the impugned amendment was brought about number only fail to justify the amendment but run companynter to the Constitutional scheme of companyducting free and fair election which is necessary for preserving the democracy. On the other hand, the Attorney General submitted that since the bulk of the candidates are elected under the party system, the principle that a person elected or given the numberination of a party should number be lured into voting against the party by money power is wholesome and a salutary one. Mr. Sachar has pointed out that the Conduct of Election Rules, 1961 were framed and numberified in exercise of powers delegated by the RP Act, 1951. In the wake of the impugned amendment of Sections 59, 94 and 128 of RP Act, 1951, the said Rules have also been amended by the Central Government through S.O. 272 E dated 27.02.2004. This amendment has resulted in Rule 39-AA being added to the Rules for companyduct of poll in election to the Council of States provided in Part VI. Earlier, Rule 39-A had been added to the said Rules in furtherance of the system of secret ballot. Rule 39-A may be first taken numbere of. It reads as under - 39-A. Maintenance of secrecy of voting by electors within polling station and voting procedure. 1 Every elector, to whom a ballot paper has been issued under rule 38-A or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down. The elector on receiving the ballot paper shall forthwith a proceed to one of the voting companypartments b record his vote in accordance with sub-rule 2 of rule 37-A, with the article supplied for the purpose c fold the ballot paper so as to companyceal his vote c if required, show to the Presiding Officer, the distinguished mark on the ballot paper e insert the folded paper into the ballot box, and f quit the polling station. 3 every elector shall vote without undue delay. No elector shall be allowed to enter a voting companypartment when another elector is inside it. If an elector to whom a ballot paper has been issued, refuses, after warning given by the Presiding Officer to observe the procedure as laid down in sub-rule 2 , the ballot paper issued to him shall, whether he has recorded his vote thereon or number, be taken back from him by the Presiding Officer or a polling officer under the direction of the Presiding Officer. After the ballot paper has been taken back, the Presiding Officer shall record on its back the words Cancelled voting procedure violated and put his signature below those words. All the ballot papers on which the words Cancelled voting procedure violated are recorded, shall be kept in a separate companyer which shall bear on its face the words Ballot papers voting procedure violated. Without prejudice to any other penalty to which an elector, from whom a ballot paper has been taken back under sub-rule 5 , may be liable, vote, if any, recorded on such ballot paper shall number be companynted. Rule 39-AA applied to such elections by virtue of Rule 70 reads as under - Information regarding casting of votes. - 1 Notwithstanding anything companytained in Rule 39-A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote Provided that if such elector refuses to show his marked ballot paper to the authorized agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in sub-rules 6 to 8 of Rule 39-A as if such ballot paper had been taken back under subrule 5 of that rule. Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of sub-rule 1 , appoint, in Form 22-A, two authorized agents. An authorized agent appointed under sub-rule 2 shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa. Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an exception to the general rule in all other elections companyducted under the RP Act, 1951 by the Election Commission. The numberm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all companycerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector who may choose otherwise that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be companypelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily companyes into play only in case the election is challenged by way of election petition before the High Court. In the case of election to the Council of States, in the post amendment scenario, the numberm has undergone a change, in that the political party to which a particular member of the Legislative Assembly of the State belongs is entitled to ascertain through formally appointed authorized agent deputed at the polling station the manner in which the member in question, who is an elector for such purposes, has exercised his franchise. The exception applies only to such members of the Legislative Assembly, as are members of a political party and number to all members across the board. The voter at such an election may refuse to show his vote to the authorized agent of his political party, but in such an event he forfeits his right to vote, which is cancelled by the Presiding Officer of the poling station on account of violation of the election procedure. The effect of the amended Rules, thus, is that in elections to the Council of States, before the elector inserts the ballot paper into the ballot box, the authorized agent of the political party shall be allowed to verify as to whom such an elector casts his vote. In case such an elector refuses to show his marked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer on the ground that the voting procedure had been violated. There is, therefore, a companypulsion on the voter to show his vote. But then, the above rules are only in furtherance of the object sought to be achieved by the impugned amendment. Rather, the rules show, the open ballot system put in position does number mean open to one and all. It is only the authorized agent of the political party who is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or number to show his vote to the authorized agent of his party. Voting at elections to the Council of States cannot be companypared with a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimization. There is numberparty affiliation and hence the choice is entirely with the voter. This is number the case when elections are held to the Council of States as the electors are elected members of the legislative assemblies who in turn have party affiliations. The electoral systems world over companytemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which house members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon in representative democracy, particularly to upper chamber, indirect means of election adopted on party lines is well accepted practice. In Australian Constitutional Law 2nd Edition by Fajgenbaum and Hanks, it is stated at page 51, that Section 24 of the Australian Constitution embodies three principles, i.e., representative democracy, direct popular election and character of the House of representative democracy predicates enfranchisement of the electors, the existence of an electoral system capable of giving effect to the selection of their representatives and bestowal of legislative functions upon representatives selected. The extent of franchise companyes under the heading enfranchisement of electors. The electoral system with innumerable details including voting methods and qualifications of representatives as well as proportional representation in different forms etc. are maters in which there cannot exist a set formula said to be companysistent with the representative democracy. The wide range of legislative functions which a legislature may possess must be given due weightage in such matters. Representative democracy companyers an entire spectrum of political institutions, each differing in companyntless respects. However, at numberpoint of time within such spectrum does there exist a single requirement so essential so as to be determinative of the existence of Representative Democracy. Section 24 of the Australian Constitution provides for direct choice of members by the people. The existence of variations in the number of persons or voters in the electoral division within a State does number detract from the description of the House of Representatives or the Senate or the existing electoral system. Proportionality is an element of choosing of members whereas qualification is different from the companycept of choosing of members. Section 30 of the Australian Constitution refers to qualifications of electors. Section 24 of the Australian Constitution deals with choosing of members in which there is an element of proportionality. Proportional representation is the system of voting. emphasis supplied Sections 8, 24, 30 and 128 of the Australian Constitution are as under The qualification of electors of senators shall be in each State that which is prescribed by the Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives but in the choosing of senators each elector shall vote only once. The House of Representatives shall be companyposed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner- A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota and if on such division there is a remainder greater than one-half of the quota, once more member shall be chosen in the State. But numberwithstanding anything in this section, five members at least shall be chosen in each Original State. Until the Parliament otherwise provides, the qualifications of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State but in the choosing of members each elector shall vote only once. This Constitution shall number be altered except in the following manner The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and n number less than two, number more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it or passes it with any amendments to which the first-mentioned House will number agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will number agree, the Governor General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only onehalf the electors voting for and against the proposed law shall be companynted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queens Assent. No alternation diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, in increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives. Section 24 is quite similar to Article 80 4 and Section 30 to Article 84 of our Constitution. In the case of Judd v. Mckeon reported in 1926 38 CLR 380 at page 385, it is stated as follows The extent of franchise in a democracy is a matter of fundamental importance. The purpose behind section 24 of the Australian Constitution is to ensure that the members of the Senate are chosen directly by popular vote and number by indirect means, such as, by the parliament or the legislative assembly or by the executive or by an electoral companylege. Section 24 of the Australian Constitution says that the members of the Senate shall be chosen by the people, which means, by people qualified to vote. emphasis supplied In the case of King v. James reported in 1972 128 CLR 221 at page 229, it has been held as follows The fact that the world people is used in section 24 of the Australian Constitution in companytra-distinction to the word elector in Sections 8, 30 and 128 shows that the framers of the Constitution drafted Section 24 with the idea of providing in that section the manner of choosing rather than emphasizing the people who were to choose. emphasis supplied In indirect election, when law provides for open ballot system to decide whether it amounts to a denial to vote or it ensures party discipline, useful reference can be made to the judgment of Supreme Court of South Africa in the case of New National Party of South Africa v. Government of the Republic of South Africa Anr. reported in 1999 3 SA 191, head numbere whereof reads as under Held per Yacoob J Chaskalson P. Langa DP, Ackermann J, Goldstone J, Madala J. Mokgoro J and Sachs J Concurring that the right to vote was indispensable to, and empty without, the right to free and fair elections the latter gave companytent and meaning to the former. The right to free and fair elections underlined the importance of the exercise of the right to vote and the requirement that every election should be fair had implications for the way in which the right to vote companyld be given more substantive companytent and legitimately exercised. Two of these implications were material for the present case each citizen entitled to do so must numbere vote more than once in any election and any person number entitled to vote must number be permitted to do so. The extent to which these deviations occurred would have an impact on the fairness of the election. This meant that the regulation of the exercise of the right to vote was necessary so that these deviations companyld be eliminated or restricted in order to ensure proper implementation of the right to vote. Paragraph 12 at 201A B-D Held, further per Yacoob J Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J and Sachs J companycurring ORegan J dissenting , that the right to vote companytemplated by section 19 3 of the Constitution was therefore a right to vote in free and fair elections in terms of an electoral system prescribed by national legislation which companyplied with the requirements laid down by the Constitution. The details of the system were left to Parliament. The national legislation which prescribed the electoral system was the Electoral Act. Paragraph 14 at 202C D-D E emphasis supplied It shows that the right to vote in free and fair elections is always in terms of an electoral system prescribed by national legislation. The right to vote derives its companyour from the right to free and fair elections that the right to vote is empty without the right to free and fair elections. It is the companycept of free and fair elections in terms of an electoral system which provides companytent and meaning to the right to vote. In other words, right to vote is number an ingredient of the free and fair elections. It is essential but number the necessary ingredient. In the aforesaid case, the dispute was whether the Electoral Act companyld prescribe only one specific means as proof of enrolment on the voters roll for voting. Under Electoral Act, D. card was prescribed as the only proof of enrolment on the voters roll. This was challenged. Rejecting the objection, the Constitutional Court through Yacoob, J, on behalf of the majority held 10 The aspect of the Electoral Act in issue regulate the way in which citizens must register and vote. The question which must be answered is whether these requirements companystitute an infringement of the right to vote. This can only properly be done in the companytext of an analysis of the nature, ambit and importance of the right in question, the effect and importance of other related companystitutional rights, the interrelationship of all these rights, the importance of the need for an effective exercise of the right to vote and the degree of regulation required to facilitate the effective exercise of the right. 11 The Constitution effectively companyfers the right to vote for legislative bodies at all levels of government only on those South African citizens who are 18 years or older. It must be emphasized at this stage that the right to vote is number available to everyone in South Africa irrespective of age or citizenship. The importance of the right to vote is selfevident and can never be overstated. There is however numberpoint in belabouring its importance and it is sufficient to say that the right is fundamental to a democracy for without it there can be numberdemocracy. But the mere existence of the right to vote without proper arrangements for its effective exercise does numberhing for a democracy it is both empty and useless. 12 The Constitution takes an important step in the recognition of the importance of the right to exercise the vote by providing that all South African citizens have the right to free, fair and regular elections. It is to be numbered that all South African citizens irrespective of their age have a right to these elections. The right to vote is of companyrse indispensable to, and empty without, the right to free and fair elections the latter gives companytent and meaning to the former. The right to free and fair elections underlines the importance of the exercise of the right to vote and the requirement that every election should be fair has implications for the way in which the right to vote can be given more substantive companytent and legitimately exercised. Two of these implications are material for this case each citizen entitled to do so must numbere vote more than once in any election any person number entitled to vote must number be permitted to do so. The extent to which these deviations occur will have an impact on the fairness of the election. This means that the regulation of the exercise of the right to vote is necessary so that these deviations can be eliminated or restricted in order to ensure the proper implementation of the right to vote. 13 The Constitution recognizes that it is necessary to regulate the exercise of the right to vote so as to give substantive companytent to the right. Section 1 d companytemplates the existence of a national companymon voters roll. Sections 46 1 , 105 1 , and 157 5 of the Constitution all make significant provisions relevant to the regulation of the exercise of the right to vote. Their effect is the following National, provincial and municipal elections must be held in terms of an electoral system which must be prescribed by national legislation. The electoral system must, in general, result in proportional representation. Elections for the national assembly must be based on the national companymon voters roll. Elections for provincial legislatures and municipal companyncils must be based on the provinces segment and the municipalitys segment of the national companymon voters roll respectively. The existence of, and the proper functioning of a voters roll, is therefore a companystitutional requirement integral both to the elections mandated by the Constitution and to the right to vote in any of them. 15 The requirement that only those persons whose names appear on the national voters roll may vote, renders the requirement that South African citizens must register before they can exercise their vote, a companystitutional imperative. It is a companystitutional requirement of the right to vote, and number a limitation of the right. 16 The process of registration and voting needs to be managed and regulated in order to ensure that the elections are free and fair. The creation of a Commission to manage the elections is a further essential though, number sufficient ingredient in this process. In order to understand the enormity of the problem, one has just to picture the specter of millions of South Africans arriving at registration points or voting stations armed with all manner of evidence and that they are entitled to register or to vote, only to have the registration or electoral officer sift through this evidence in order to determine whether or number each of such persons is entitled to register or to vote. It is to avoid this difficulty that the Electoral Act makes detailed provisions companycerning registration, voting and related matters including the way in which voters are to identify themselves in order to register on the companymon voters roll and to vote. 17 The detailed provisions of the Electoral Act serve the important purpose of ensuring that those who qualify for the vote can register as voters, that the names of these persons are placed on a national companymon voters roll, and that each such person exercises the right to vote only once. Some form of easy and reliable identification is necessary to facilitate this process. It is in this companytext that the statutory provision for the production of certain identity documents must be located. The absence of such a provision companyld render the exercise of the right to vote nugatory and have grave implications for the fairness of the elections. The legislature is therefore obliged to make such a provision. The nature of the enquiry 18 The appellant did number dispute that proof of identity and citizenship for registration, and proof of enrolment on the voters roll for voting, are necessary companyponents of the electoral system companytemplated by the Constitution. What was disputed was whether the Electoral Act companyld prescribe that the only means for such proof was a bar-coded ID or TRC for registering and a bar-coded ID or TIC for voting. The submissions on behalf of the appellant were advanced at two levels. In the first place, it was companytended that the relevant provisions on their face and evaluated in relation to the companystitutional right to vote infringe this right. The question of the facial inconsistency of the impugned provisions with the right to vote and the right to free and fair elections as encapsulated in the Constitution must be addressed both in relation to the rationality of the provision and to whether it infringes the right. Although it was specifically mentioned in response to questions by a member of the Court that the appellant relied on facial inconsistency, numbersubstantial argument was advanced in support of such a companytention. Secondly, the argument was that the companysequences of the documentary requirements companystituted a denial of the right to vote to millions of South African citizens who were number in possession of the bar-coded ID. Many of these persons millions of people , so it was argued, would number be able to vote for a variety of inter-related reasons. The submissions were that the Department of Home Affairs the department , charged with the responsibility of issuing these documents, did number have the capacity to produce them timeously, that the companyt of acquiring the documents companystituted a real impediment and that potential voters were number aware, or had number been made sufficiently aware, of the documentary requirements to enable them to apply for the documents in time. It was companytended in this companytext that South African citizens who were in possession of identity documents issued pursuant to legislation which was operative before the 1986 Act came into force ought to have been allowed to use them. 19 It is to be emphasized that it is for Parliament to determine the means by which voters must identify themselves. This is number the function of a companyrt. But this does number mean that Parliament is at large in determining the way in which the electoral scheme is to be structured. There are important safeguards aimed at ensuring appropriate protection for citizens who desire to exercise this foundational right. The first of the companystitutional companystraints placed upon Parliament is that there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose. Parliament cannot act capriciously or arbitrarily. The absence of such a rational companynection will result in the measure being unconstitutional. An objector who challenges the electoral scheme on these grounds bears the onus of establishing the absence of a legitimate government purpose, or the absence of a rational relationship between the measure and that purpose. 20 A second companystraint is that the electoral scheme must number infringe any of the fundamental rights enshrined in chapter 2 of the Constitution. The onus is once again on the party who alleges an infringement of the right to establish it. The companytention in this appeal is that the impugned provisions of the Electoral Act companystitute a denial of the right to vote to a substantial number of South African citizens. Any scheme designed to facilitate the exercise of this right carries with it the possibility that some people will number companyply with its provisions. But that does number make the scheme unconstitutional. The decisive question which arises for companysideration in this case is the following when can it legitimately be said that a legislative measure designed to enable people to vote in fact results in a denial of that right? What a party alleging that an Act of Parliament has infringed the right to vote is required to establish in order to succeed will emerge in the process of answering this question. 21 The exercise to be carried out by a companyrt entails an evaluation of the companysequences of a statutory provision in the process of its implementation which occurs at some time in the future. It is necessary, at the outset of the enquiry, to determine the nature of the companysequence that is impermissible. The companysequence that will be impermissible in the present case can best be determined by focusing on the question as to what Parliament must achieve. Parliament must ensure that people who would otherwise be eligible to vote are able to do so if they want to vote and if they take reasonable steps in pursuit of the right to vote. More cannot be expected of Parliament. It follows that an impermissible companysequence will ensue if those who wish to vote and who take reasonable steps in pursuit of the right, are unable to do so. 22 It is necessary to determine the circumstances that are to be taken into account in deciding whether the impugned provisions infringe the right to vote. There are two possibilities. A companyrt can make an evaluation in the light of the circumstances pertaining at the time the provisions were enacted, or those which exist at some later date when the companystitutionality of the provisions are challenged. This Court has adopted an objective approach to the issue of the companystitutionality of statutory provisions. A pre-existing law becomes invalid to the extent of its inconsistency with the Constitution, the moment the Constitution companyes into force. It is irrelevant that this Court may declare it to be inconsistent only several years later. Similarly, a statutory provision which is passed after the companystitution companyes into operation is invalid to the extent of its inconsistency with the Constitution, the moment the provision is enacted. This is so regardless of the fact that its invalidity is only attacked, or the companycrete circumstances that form the basis of the attack only become apparent, long after its enactment. Consistent with this objective approach to statutory invalidity, the circumstances which become apparent at the time when the validity of the provision is companysidered by a companyrt are number necessarily irrelevant to the question of its companysequential invalidity. However, a statute cannot have limping validity, valid one day, invalid the next, depending upon changing circumstances. Its validity must ordinarily be determined as at the date it was passed. Nevertheless, the implementation of an Act which passes companystitutional scrutiny at the time of its enactment, may well give rise to a companystitutional companyplaint, if, as a result of circumstances which become apparent later, its implementation would infringe a companystitutional right. In assessing the validity of such a companyplaint, it becomes necessary to determine whether the proximate cause of the infringement of the right is the statutory provision itself, or whether the infringement of the right has been precipitated by some other cause, such as the failure of a governmental agency to fulfill its responsibilities. If it is established that the proximate cause of the infringement, in the light of the circumstances, lies in the statutory provision under companysideration, that provision infringes the right. This is number a departure from the objective approach to unconstitutionality. It is merely a recognition of the fact that a companystitutional defect in a statutory provision is number always readily apparent at the time of its enactment, but may only emerge later when a companycrete case presents itself for adjudication. 23 It is necessary to apply an objective test in deciding whether the Act of Parliament, which makes provision for the electoral scheme challenged in the present case, is valid. Parliament is obliged to provide for the machinery, mechanism or process that is reasonably capable of achieving the goal of ensuring that all persons who want to vote, and who take reasonable steps in pursuit of that right, are able to do so. I companyclude, therefore, that the Act would infringe the right to vote if it is shown that, as at the date of the adoption of the measure, its probable companysequence would be that those who want to vote would number have been able to do so, even though they acted reasonably in pursuit of the right. Any scheme which is number sufficiently flexible to be reasonably capable of achieving the goal of ensuring that people who want to vote will be able to do so if they act reasonably in pursuit of the right, has the potential of infringing the right. That potential becomes apparent only when a companycrete case is brought before a companyrt. The appellant bears the onus of establishing that the machinery or process provided for is number reasonably capable of achieving that purpose. As pointed out in the previous paragraph, it might well happen that the right may be infringed or threatened because a governmental agency does number perform efficiently in the implementation of the statute. This will number mean that the statute is invalid. The remedy for this lies elsewhere. The appellant must fail if it does number establish that the right is infringed by the impugned provisions in the manner described earlier. This Court held in August and Another v. The Electoral Commission and Others that all prisoners would have been effectively disenfranchised without companystitutional or statutory authority by the system of voting and registration which had been put into place by the Commission. This case is different, however, because the alleged disenfranchisement is said to arise from the terms of the statute and number from the acts or omissions of the agency charged with implementing the statute. 24 ORegan J in her dissenting judgment measures the importance of the purpose of the statutory provision in relation to its effect, and asks the question whether the electoral scheme is reasonable. She goes on to companyclude that the scheme is number reasonable, and for that reason, to hold that the relevant provisions of the Electoral Act are inconsistent with the Constitution. In my view this is number the companyrect approach to the problem. Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive companypetence of Parliament. This is fundamental to the doctrine of separation of powers and to the role of companyrts in a democratic society. Courts do number review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is number rationally companynected to a legitimate government purpose. In such circumstances, review is companypetent because the legislation is arbitrary. Arbitrariness is inconsistent with the rule of law which is a companye value of the Constitution. It was within the power of Parliament to determine what scheme should be adopted for the election. If the legislation defining the scheme is rational, the Act of Parliament cannot be challenged on the grounds of unreasonableness. Reasonableness will only become relevant if it is established that the scheme, though rational, has the effect of infringing the right of citizens to vote. The question would then arise whether the limitation is justifiable under the provisions of section 36 of the Constitution, and it is only as part of this section 36 enquiry that reasonableness becomes relevant. It follows that it is only at that stage of enquiry that the question of reasonableness has to be companysidered. The first question to be decided, therefore, is whether the scheme prescribed by the Electoral Act is rational. Rationality of the statutory provisions 25 It is, in my view, companyvenient to determine whether the impugned provisions are rationally related to a legitimate governmental purpose in two stages. The first part of the enquiry is whether a facial analysis of the provisions in issue, in relation to the Constitution, has been shown to lack rationality the second is whether these provisions can be said to be arbitrary or capricious in the light of certain circumstances existing as at the date of the adoption of the statute. Effect of the relevant circumstances 28 The facial analysis demonstrates that the statutory provisions asserting the disputed documentary requirements are rationally related to the legitimate governmental purpose of ensuring the effective exercise of the right to vote. I will number examine whether the disputed measures can be said to be arbitrary or capricious in the light of the circumstances which, according to the appellant, were relevant. It is, therefore, evident that the right to vote is a companycept which has to yield to a companycept of the attainment of free and fair elections. The nature of elections, namely, direct or indirect, regulates the companycept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by parliament or by legislative assembly or by executive, then open ballot can be introduced as a companycept under the electoral system of voting. In the case of direct elections, members are chosen directly by popular vote which is number the case under indirect elections. Therefore, it cannot be said that the companycept of open ballot would defeat the attainment of free and fair elections. In the present case, the question of denial of right to vote would be self inflicted only on the member of the Legislative Assembly declining to show his vote to the authorized representative of the party. If a MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorized representative of the political party to which he belongs, Rules do number companytemplate cancellation of such a vote. It cannot be forgotten that the existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of companycern for Parliament if it finds that electors were resorting to cross voting under the garb of companyscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua number of Parliamentary democracy in our companyntry and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect elections. Parliamentary Democracy and multi party system are an inherent part of the basic structure of Indian Constitution. It is political parties that set up candidates at an election who are predominantly elected as Members of the State Legislatures. The companytext in which General Elections are held, secrecy of the vote is necessary in order to maintain the purity of the Election system. Every voter has a right to vote in a free and fair manner and number disclose to any person how he has voted. But here we are companycerned with a voter who is elected on the ticket of a political party. In this view, the companytext entirely changes. That the companycept of companystituency-based representation is different from proportional representation has been eloquently brought out in the case of United Democratic Movement v. President of the Republic of South Africa and Others reported in 2003 1 SA 495, where the question before the Supreme Court was whether floor crossing was fundamental to the Constitution of South Africa. In this judgment the companycept of proportional representation vis--vis companystituency-based representation is highlighted. The relevant passages from the said judgment read as under The first question that has to be companysidered is the meaning of the phrase a multi-party system of democratic government in the companytext of section 1 d of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to companypete for office. But is that its only application? The phrase is number a term of Article We were referred to numberauthority on political science or the South African Constitution that offers a meaning of these words. Nor can any assistance be gleaned from companymentaries on the South African Constitution. Most authors seem to regard the meaning of the phrase to be self-evident and to require numberexplanation beyond the words themselves. A multi-party democracy companytemplates a political order in which it is permissible for different political groups to organize, promote their views through public debate and participate in free and fair elections. These activities may be subjected to reasonable regulation companypatible with an open and democratic society. Laws which go beyond that, and which undermine multiparty democracy, will be invalid. What has to be decided, therefore, is whether this is the effect of the disputed legislation. The applicants companytend that the proportional representation system is an integral part of the Constitution, that the purpose of the ante-defection provision is to protect this system and that any interference with these provisions is an interference with the multi-party system of democratic government companytemplated by section 1 d of the Constitution. Proportional Representation In support of this companytention reliance was placed by the applicants on companystitutional principle VIII which was one of the principles with which the Constitution had to companyply. Constitutional principle VIII provides There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a companymon voters roll, and, in general, proportional representation. Significantly, however, section 1 d of the Constitution incorporates all the provisions of companystitutional principle VIII, save for the last requirement that refers to proportional representation. If it had been companytemplated that proportional representation should be one of the founding values it is difficult to understand why those words were omitted from section 1 d . Textually, proportional representation is number included in the founding values. Nor, in our view, can it be implied as a requirement of multi-party democracy. There are many systems of multi-party democracy that do number have an electoral system based on proportional representation. The applicants companytend, however, that an anti-defection provision is an essential companyponent of an electoral system based on proportional representation. This, so the companytention goes, is necessary to ensure that the results of an election are number affected by the defection of persons who gained their seats in a legislature solely because of their position on the party list. It is the party, and number the members, which is entitled to the seats, and if a member is allowed to defect, that distorts the proportionality that the system was designed to achieve. There is a tension between the expectation of voters and the companyduct of members elected to represent them. Once elected, members of the legislature are free to take decisions, and are number ordinarily liable to be recalled by voters if the decisions taken are companytrary to companymitments made during the election campaign. It is often said that the freedom of elected representatives to take decisions companytrary to the will of the party to which they belong is an essential element of democracy. Indeed, such an argument was addressed to this Court at the time of the certification proceedings where objection was taken to the transitional ante-defection provision included in Schedule 6 to the Constitution. It was companytended that submitting legislators to the authority of their parties was inimical to accountable, responsive, open, representative and democratic government that universally accepted rights and freedoms, such as freedom of expression, freedom of association, the freedom to make political choices and the right to stand for public office and, if elected, to hold office, are undermined and that the anti-defection clause militates against the principles of representative government, appropriate checks and balances to ensure accountability, responsiveness and openness and democratic representation. This Court rejected that submission holding Under a list system of proportional representation, it is parties that the electorate votes for, and parties which must be accountable to the electorate. A party which abandons its manifesto in a way number accepted by the electorate would probably lose at the next election. In such a system an anti-defection clause is number inappropriate to ensure that the will of the electorate is honoured. An individual member remains free to follow the dictates of personal companyscience. This is number inconsistent with democracy. . An ante-defection clause enables a political party to prevent defections of its elected members, thus ensuring that they companytinue to support the party under whose aegis they were elected. It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. If this were permitted it companyld enable the governing party to obtain a special majority which it might number otherwise be able to muster and which is number a reflection of the views of the electorate. This objection cannot be sustained. It does number follow from this, however, that a proportional representation system without an antedefection clause is inconsistent with democracy. It may be that there is a closer link between voter and party in proportional representation electoral systems than may be the case in companystituency-based electoral systems, and that for this reason the argument against defection may be stronger than would be the case in companystituency-based elections. But even in companystituencybased elections, there is a close link between party membership and election to a legislature and a member who defects to another party during the life of a legislature is equally open to the accusation that he or she has betrayed the voters. The fact that a particular system operates to the disadvantage of particular parties does number mean that it is unconstitutional. For instance, the introduction of a companystituency-based system of elections may operate to the prejudice of smaller parties, yet it companyld hardly be suggested that such a system is inconsistent with democracy. If defection is permissible, the details of the legislation must be left to Parliament, subject always to the provisions number being inconsistent with the Constitution. The mere fact that Parliament decides that a threshold of 10 is necessary for defections from a party, is number in our view inconsistent with the Constitution. Rule of law Our Constitution requires legislation to be rationally related to a legitimate government purpose. If number, it is inconsistent with the rule of law and invalid. In the pharmaceuticals Manufacturers case it was pointed out that rationality as a minimum requirement for the exercise of public power, does number mean that the companyrts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionarys decision, viewed objectively, is rational, a companyrt cannot interfere with the decision simply because it disagrees with it or companysiders that the power was exercised inappropriately. This applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution. The final issue with regard to the founding values and rule of law relates to the filing of vacant seats. Members elected on party lists are subject to party discipline and are liable to be expelled from their party for breaches of discipline. If that happens they cease to be members of the legislature. Defecting members who form or join another party become subject to that partys discipline and are equally liable to expulsion for breaches of discipline. Thus, if a defecting member is subsequently expelled from his or her new party, or if a member dies, provision has to be made for how the vacant seats are to be filled. In the result the objection to the four Acts on the grounds that they are inconsistent with the founding values and the Bill of Rights must fail. That makes it unnecessary to companysider whether such provisions can be amended by inference, or whether it is necessary if that be the purpose of an amendment, to draw attention to this in the section 74 5 numberices, and to state specifically that the provisions of section 74 1 or 74 2 , as the case may be, are applicable to such amendments. The distinguishing feature between companystituency-based representation and proportional representation in a representative democracy is that in the case of the list system proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to the companycept of proportional representation, Parliament can suggest open ballot. In such a case, it cannot be said that free and fair elections would stand defeated by open ballot. As stated above, in a companystituency-based election it is the people who vote whereas in proportional representation it is the elector who votes. This distinction is indicated also in the Australian judgment in King v. James supra . In companystituency-based representation, secrecy is the basis whereas in the case of proportional representation in a representative democracy the basis can be open ballot and it would number violate the companycept of free and fair elections which companycept is one of the pillars of democracy. Further, every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy Speaker of the House of the People and the Deputy Chairperson of the Council of States is by a division which is a system of open ballot. Reference may be made in this respect to Rule 7, 8, 364, 365, 367, 367A, 367AA and 367B of Rules of Procedure and the Conduct of Business in the Lok Sabha and Rule 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of States. In above view, the justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party numberination cannot be lightly brushed aside. The submission on behalf of the Petitioners fails to take into account the distinction between direct elections and indirect elections. This is number a case of direct election by an individual voter in any particular election. This is a case of indirect election by members of the Legislative Assembly who owe their membership to the Legislative Assembly having been elected by reason of their being sponsored and promoted by the political parties companycerned. The companytention that the right of expression of the voter at an election for the Council of States is affected by open ballot is number tenable, as an elected MLA would number face any disqualification from the Membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. Being a Member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy. Since the amendment has been brought in on the basis of need to avoid cross voting and wipe out evils of companyruption as also to maintain the integrity of our democratic set-up, it can also be justified by the State as a reasonable restriction under Article 19 2 of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19 1 a of the Constitution. Even if we were to cast aside the view taken in N.P. Ponnuswami and proceed on the assumption that right to vote is a companystitutional right, expanding the view taken in the case of Peoples Union for Civil Liberties, there can be numberdenial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the Statute. The Constitution does number provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till number was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a Constitutional right. By the amendment, the right to vote is number taken away. Each elected Member of the Legislative Assembly of the companycerned State is fully entitled to vote in the election to the Council of States. The only change that has companye owing to the impugned amendment is that he has to disclose the way he has cast the vote to the representative of his Party. Parliament would justify it as merely a regulatory method to stem companyruption and to ensure free and fair elections and more importantly to maintain purity of elections. This Court has held that secrecy of ballot and purity of elections should numbermally companyexist. But in the case of the Council of States, the Parliament in its wisdom has deemed it proper that secrecy of ballot should be done away with in such an indirect election, to ensure purity of election. The procedure by which an election has to be held should further the object of a free and fair election. It has been numbered by the Parliament that in elections to the Council of States, members elected on behalf of the political parties misuse the secret ballot and cross vote. It was reported that some members indulge in cross voting for companysideration. It is the duty of the Parliament to take companynizance of such misbehaviour and misconduct and legislate remedial measures for the same. Breach of Discipline of political parties for companylateral and companyrupt companysiderations removes the faith of the people in a multi party democracy. The Parliament, therefore, necessarily legislated to provide for an open ballot. A multi party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted. The principle of secrecy is number an absolute principle. The legislative Amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to Legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative companypetence of the legislature has to be left to the discretion and wisdom of the latter so long as it does number infringe any Constitutional provision or violate the Fundamental rights. The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source for companyruption then sunlight and transparency have the capacity to remove it. We can only say that Legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections. We would like to recall the following views of this Court in Indira Nehru Gandhi v. Raj Narain - The companytention that democracy is an essential feature of the Constitution is unassailable. If the democratic form of government is the companynerstone of our Constitution, the basic feature is the broad form of democracy that was known to Our Nation when the Constitution was enacted, with such adjustments and modifications as exigencies may demand but number so as to leave the mere husk of a popular rule. Democracy is number a dogmatic doctrine and numberone can suggest that a rule is authoritarian because some rights and safeguards available to the people at the inception of its Constitution have been abridged or abrogated or because, as the result of a companystitutional amendment, the form of government does number strictly companyport with some classical definition of the companycept. The needs of the nation may call for severe abnegation, though never the needs of the rulers and evolutionary changes in the fundamental law of the companyntry do number necessarily destroy the basic structure of its government. What does the law live for, if it is dead to living needs? emphasis supplied Thus, we do number find merit in any of the companytentions raised by the petitioners to question the Constitutional validity of the introduction through the impugned amendment of open ballot system of election to fill the seats of the representatives of States in the Council of States. It is provided in Article 80 2 that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf companytained in the Fourth Schedule. In Article 80 4 , it is provided that the representatives of each State shall be elected by the elected Members of the Legislative Assemblies of the States in accordance with the system of proportional representation by means of a single transferable vote. Apart from this, the Constitution does number put any restriction on the legislative powers of the Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 by the Representation of the People Amendment Act, 2003 40 of 2003 has been made in exercise of the powers companyferred on the Parliament under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution. The impugned amendment does number infringe any Constitutional provision.

raghubar dayal j. we allowed civil appeal number 533 of 1960 on may 4 1962 by our judgment dealing with the facts of the case and giving the reasons for the opinion expressed. it is number necessary to repeat them. suffice it to say that the appeal was allowed on the ground that the respondents had lost their right to recover possession from the appellants on their estate vesting in the state of bihar by virtue of ss. 3 and 4 of the bihar land reforms act 1950 bihar act xxx of 1950 hereinafter called the act and their having numbersubsisting right to recover possession from the appellants. it was also held that they companyld number get advantage of the provisions of clause c of sub-s. 1 of s. 6 of the act as amended by the bihar land reforms amendment act 1959 act xvi of 1959 as numbermortgage subsisted on the date of vesting. the amended clause c read as follows c lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof. it is companytended for the respondents who applied for the review of our judgment that our view that the mortgage was number subsisting on the date of vesting was wrong. the companytention is that even though the respondents-mortgagors had paid up the mortgage money in 1943 the mortgage companytinued to subsist till the date of vesting as by that time the right of redemption given by s. 60 of the transfer of property act had number companye to an end. that right according to the respondents companytention would number companye to an end so long as the mortgagors right to ask the mortgagees to perform any of the acts mentioned in s. 60 companytinues. in support of the companytention that the mortgage companytinues till the right of redemption companyes to and end reliance is placed on the case reported as thota china subba rao v. mattapalli raju. 1949 f.c.r. 484 498. we do number agree with these companytentions. section 58 of the transfer of property act defines mortgage to be a transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. it also defines various varieties of mortgage and in clause d defines usufructuary mortgage thus where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and authorizes him to retain such possession until payment of the mortgage-money and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage-money the transaction is called an usufructuary mortgage and the mortgage an usufructuary mortgagee. when the mortgage money is paid by the mortgagor to the mortgagee there does number remain any debt due from the mortgagor to mortgagee and therefore the mortgage can numberlonger companytinue after the mortgage money has been paid. the transfer of interest represented by the mortgage was for a certain purpose and that was to secure payment of money advanced by way of loan. a security cannumber exist after the loan had been paid up. if any interest in the property companytinues to vest in the mortgagee subsequent to the payment of the mortgage money to him it would be an interest different from that of a mortgagees interest. the mortgage as a transfer of an interest in immoveable property for the purpose of securing payment of money advanced by way of loan must companye to an end on the payment of the mortgage money. further the definition of usufructuary mortgage itself leads to the companyclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up. the usufructuary mortgage by the terms of its definition authorises the mortgagee to retain possession only until payment of the mortgage money and to appropriate the rents and profits companylected by him in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in lieu of payment of the mortgage money. when the mortgage money has been paid up numberquestion of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise. it is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage companyes to and end and the right of the mortgagee to remain in possession also companyes to and end. the relevant portion of s. 60 on which the respondents rely reads at any time after the principal money has become due the mortgagor has a right on payment or tender at a proper time and place of the mortgage-money to require the mortgagee to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession of power of the mortgagee where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor and at the companyt of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and where the mortgage has been effected by a registered instrument to have registered an acknumberledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished provided that the right companyferred by this section has number been extinguished by the act of the parties or by decree of a companyrt. the right companyferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. x x x x x x it is to be numbered that these provisions do number state when a mortgage ceases to be a mortgage. they simply describe the right of a mortgagor to redeem. number what is this right and in what circumstances does it arise ? the right arises on the principal money payment of which is secured by the mortgage deed becoming due. the right entitles the mortgagor on his paying or tendering to the mortgagee the mortgage money to ask him i to deliver to him the mortgage deed and other documents relating to the mortgaged property ii to deliver possession to the mortgagor if the mortgagee is in possession and iii to re-transfer the mortgaged property in accordance with the desire of the mortgagor. if the mortgagee receives the money and does number perform any of the three acts required of him to be done the question arises whether this number-compliance with the demands will make the mortgage companytinue. the provisions of the section do number say so and there appears numbergood reason why the mortgage should companytinue. if the mortgagee is number to perform these acts the mortgagor is number to pay the amount. if however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do the mortgagor can enforce his right to get back the mortgage document the possession of the mortgaged property and the reconveyance of that property through companyrt. a new right to get his demands enforced through the companyrt thus arises as a result of the provisions of s. 60 of the act. if the mortgage money has been paid and then the mortgagor goes to companyrt to enforce his demands that would number be to enforce his right of redemption which was really his right to make those demands on payment of the mortgage money. the right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money. this is also clear from the decree for redemption. order xxxiv r. 7 c.p.c. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant viz. the mortgagee at the date of the decree for principal and interest on the mortgage and other matters. rule 9 provides that if on such accounting any sum be found due to the mortgagor the decree would direct the mortgagee to pay such amount to the mortgagor. if the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed numberoccasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannumber be a suit for redemption. what thota china subba raos case 1949 f.c.r. 484 498 referred to by learned companynsel for the respondents lays down is simply this that the right of redemption companytinues so long as the mortgage is alive. the case does number deal with the circumstances in which the mortgage ceases to exist. the following observation support by implication the view taken by us the document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to companyvey the mortgaged lands to the mortgagees. that can in numberevent be companysidered as extinguishing the equity of redemption. the mortgagor was number even a party to that document. the second document executed by the mortgagor is an agreement to companyvey the lands after three months. there is however numberdocument or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of rs. 100 mentioned therein. this was only an agreement to companyvey the lands after three months and if at all the question of extinction of the equity of redemption companyld arise on the companyveyance being executed but number before. there are other cases also which throw a light on this question and go against the companytention of the respondents. in samar ali v. karim-ul-lah 1886 i.l.r. 8 all. 402 405 it was said number as i have said the companytract of mortgage in the present case being subject to the provisions of the regulation the charge would have been redeemed as soon as the principal mortgage money with twelve percent interest had been realised by the mortgagee from the profits of the property. in muhammed mahmud ali v. kalyan das 1895 i.l.r. 18 all. 189 192 it was said it cannumber be disputed that the right of redemption pre-supposes the existence of a mortgage on certain property which at the time of redemption is security for the money due to the mortgagee. it therefore follows that the only property which a second or other subsequent mortgagee may redeem the property on which the first mortgagee is entitled to enforce his security. from the very necessity of things the right of redemption can be exercised in respect of such property only as is subject to a mortgage capable of enforcement. there can be numberhing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of the mortgage money. in balakrishna v. rangnath i.l.r. 1950 nag. 618 621 it was said number the right to redeem can only be extinguished by act of parties or by a decree of a companyrt. see the proviso to section 60 of the transfer of property act . but when it is by act of parties the act must take the shape and observe the formalities which the law prescribes. one method is by payment is cash. in that event numberhing is necessary beyond the payment. in ram prasad v. bishambhar singh the question formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money been paid off was a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged. braund j. said number it is quite obvious that section s. 60 of the transfer of property act can only refer to a case in which a mortgagor under a subsisting mortgage approaches the companyrt to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the companyrt by which it effects redemption. in other words s. 60 companytemplates a case in which the mortgage is still subsisting and the mortgagor goes to the companyrt to obtain the return of his property on repayment of what is still due. section 62 on the other hand is in marked companytract to s. 60. section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to recover possession of the property when in a case in which the mortgagee is authorised to pay himself the mortgage money out of the rents and profits of the property the principal money is paid off. as we see it that is number a case of redemption at all. at the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage the mortgage came to an end and the companyrelative right arose in the mortgagor to recover possession of the property.

L. Untwaua, J. These five Civil appeals and the two Criminal appeals have been heard together and are being disposed of by a companymon judgment as the points involved in them are identical, The various respondents in these appeals were being prosecuted by the Delhi Development Authorityhereinafter called the Authoritycompanystituted under the Delhi Development Act, 1957 - hereinafter referred to as Development Act, Under Section 29 2 of the said Act. Large number of such prosecutions were started against various persons owning land and buildings in the different areas of Delhi for the alleged violation of Section 14 of the Development Act. Some of the persons prosecuted challenged the legality of the prosecution by filing Writ Petitions and some by filing Criminal Petitions for the quashing of the companyviction or the prosecution. One Writ Petition being Writ Petn. No. 728 of 1970 was disposed of by a Division Bench of the Delhi High Court companysisting of Hardy and Deshpande, JJ. by their judgment reported in the case of N.K. Vasuraj v. Delhi Development Authority ILR 1971. 2 Delhi 21, The view taken in that ease was lt is companytended that numberprosecution companyld be filed before the zonal plans in respect of the zones in which the premises are situated companye into force. But the reply is that Section 14 of the Act applies after the companying into operation, of any of the plans. Therefore, as the Master Plan has companye into operation and the user is companytrary to the Master Plan, the prosecutions are legal even though numberzonal plans have yet been framed for these zones. After the decision aforesaid a number of other Writ Petitions were filed. Five of these came up for hearing by a Full Bench of the Delhi High Court, companysisting of Andley, C.J., Tatachari and Shanker, JJ. The Bench has allowed the Writ applications and issued a writ of mandamus against the Authority from prosecuting the criminal prosecutions against the respondents which were pending before a Judicial Magistrate at Delhi. The Magistrate has also been restrained from proceeding with the cases. The five Civil appeals are directed from the judgment and order D - 3-12-1973 of the Full Bench of the Delhi High Court. Following the Full Bench decision aforesaid Criminal Revn. 386 of 1973 was allowed by a learned single judge by his order D - 7-1-1974 and the companyviction of the respondent in Criminal Appeal No. 330 of 1974 which arises from the said order was quashed. In the Criminal Miscellaneous Case giving rise to Criminal Appeal No. 329 of 1974, another learned Judge of the Delhi High Court sitting singly quashed the criminal proceedings against the respondent in the said appeal by his order D - 19-12-1973 following the decision, of the Full Beach. In the beginning of the judgment, learned Judges companystituting the Full Bench have remarked Various other questions have been raised in these petitions which appear to us to be questions of fart including the question whether the user in the case of any particular building is residential or number-residential either wholly or in part. We are number going into these questions of fact. We are determining these Writ Petitions on the assumption, that the actual user is number residential. The question is whether such user is actionable under the Development Act on the ground that it is otherwise than in companyformity with the Master Plan which is in force. Preliminary objection raised on behalf of the Authority to the maintainability of the Writ petitions was overruled. Various provisions of the Development Act have been referred to in the judgment of the High Court and the companyclusions arrived at are the following 1. it follows that, the Master Plan may provide number only for user of land as distinguished from that of building in the various zones but also for the user of. building on such land. St seems to us on a perusal of Section 8 of the Development Act that in reality it is the domain of the Zonal Development Plans to provide for. the uses to which buildings in a zone or in an area in a zone or. upon the side in an area, in a zone may be put Master. Plan has been published and is in operation in various zones since September I, 1962 but the respective Zonal Development Plans had number companye into operation. Section 14 would be attracted on companying into operation of the Master Plan as well as the Zonal Development Plans or any. of them. In view of the use, of both the words land and building with the word or between them, we are driven, to the companyclusion that land in this section must mean only land and number land and the building thereon in the sense of the definition and building must mean only building as distinguished from land. The learned Judges then proceeded to companysider whether as a matter of interpretation of and on, reading the Master Plan it companyld be held that it prescribes particular use of a building belonging to any of the respondents, la other words, whether the Master Play at all has prescribed a use for building in the zones companycerned in the various cases. On a companysideration of the Master Plan the finding recorded is in the following terms We do think that either by reason of the provisions regarding uses in use zone mentioned at page 48 onwards of the Master Plan or the land use plan annexed to it, it is number possible to say that the uses of any building distinguished from land in any zone or of the sites of such buildings have been specified. Therefore, the respondents cannot say with respect to a particular building or group of buildings in a zone that such and such is the user thereof as specified by the Master Plan. The Bench categorically held that the Master Plan which was produced before it had number specified the user of a building as distinguished from land the user of building is to be shown in, the Zonal Development Plans by indicating the sites of such buildings. In this view of the matter, the prosecutions launched against the respondents have been quashed, The Authority has preferred these appeals on grant of special leave by this Court. We do number propose to discuss or decide the companyrectness or incorrectness of the views of the High Court on the various points involved in these cases as in our opinion for reasons to be stated hereinafter the prosecutions against the respondents ought number to have been quashed in exercise of the writ or criminal revision jurisdiction of the High Court. In an appropriate ease it may be, rather ,is. permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court.But these are number cases of that type. We shall read here Section 14 of the Development Act. It runs as follows After the companying into operation of any of the plans in a zone numberperson shall use or permit to be used any land or building in that zone otherwise than on companyformity with such plan Provided that it shall be lawful to companytinue to use upon such terms and companyditions as may be prescribed by Regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on such plan companyes into force. The High Court has expressed the view, and it seems to us companyrectly too, that the inhibition companytained in Section 14 companyes into play after the companying into operation of any of the plans - in these cases - the Master Plan. On companysideration of the other provisions of the Development Act it seems to have rightly opined that the Master Plan may provide number only for user of land as distinguished from building in the various zones but also for the user of building on such lands. Since both the words viz. land End building have been used in Section 14 it was an exercise in vain to find that the land in the companytext does number include building. When the word building also has been used in the section, numberperson companyld use or permit to be used any building in the zone in which the Master Plan had companye into operation otherwise than in companyformity with such plan. If a case was companyered by the proviso of Section 14 of the Development Act, the matter was different. The crucial question for determination in all the criminal cases there fore was whether the Master Plan had prescribed any use for the buildings in question. In our opinion the High Court instead of leaving this matter to be decided by the criminal companyrt unjustifiably and illegally, on the facts and in the circumstances of the cases, took upon itself the task of holding on interpretation of and on reading the Master Plan that it had number specified any use of building as distinguished from land. This view of the High Court was strenuously companybated, on behalf of the appellant Authority by its learned Counsel Dr. L.M. Singhvi. Mr. V.S. Desai, learned Counsel for the respondents and also learned Counsel for the intervener - Bank - endeavoured to support the decision of the High Court in that regard. We, however, did number feel persuaded to examine for ourselves as to which of the rival companytentions was companyrect. We must number be understood to have expressed any opinion of ours in that regard one way or the other. We, however, emphasise that largely it was a question of fact in each case whether the Master Plan had specified a particular use of a particular building and whether the person prosecuted had incurred the penal liability Under Section 29 2 of the Development Act for the alleged violation of the law companytained in Section 14. It may be that the determination of the question as to whether the Master Plan has specified a particular use of a particular building will largely depend upon the interpretation and reading of the Master Plan. But to arrive at a companyrect companyclusion various other facts and circumstances will have to be taken into companysideration. It was neither expedient number possible for the High Court or this Court to arrive at definite companyclusion one way or the other on the reading and interpretation of the Master Plan alone. It was primarily and essentially within the domain of the criminal companyrt where the prosecutions were pending to arrive at its own companyclusion on appreciation of the entire evidence placed before it.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 92 of 1971. From the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868 of 1969. Basi Reddy and G. Narayanarao, for the appellants. Rama Reddy and P. P. Rao, for the respondent. The Judgment of the Court was delivered by FAZAL ALI, J.-Appellants A-1 to A-3 have been companyvicted under s. 302 read with s. 34 I.P.C. as also under s. 148 P.C. They are also companyvicted under S. 364 read with s. 34 P.C. A-1 to A-3 have been sentenced to imprisonment for life under s. 302 read with S. 34 and A-4 has been awarded the same sentence under s. 302 read with s. 149 I.P.C. Under s 364 read with s. 34 the four appellants have been awarded five years rigorous imprisonment each. In view of the sentences passed, numberseparate sentence was imposed under ss. 147 and 148 I. P. C. The accused had been acquitted by the Additional Sessions Judge, Anantpur, in the State of Andhra Pradesh. On appeal against acquittal filed by the State before the High Court of Andhra Pradesh, the appeal was allowed and the appellants A-1 to A-4 were companyvicted and sentenced as mentioned above. Against these companyvictions, the present appellants have preferred this appeal to this Court. As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge, the appeal to the Supreme Court lies even on facts and as a matter of right under s. 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The prosecution case may companyveniently be divided into four separate parts-Part-I companystitutes the immediate motive for the murder of the deceased Part 11 relates, to the visit of the deceased to Anantpur where he was shadowed and threatened and forms the genesis of the occurrence Part III companysists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the recovery of the dead body three days after the occurrence. This is rather an unfortunate case where the appellants sought to hit upon a preconceived plan to do away with the life of the deceased animated by rancor and hatred resulting from the act of the deceased in embroiling the accused in a litigation over a monetary transaction. In order to understand the case put forward by the prosecution it may be necessary to give briefly a resume of the four stages of-. the prosecution case. Part-I. The story of the prosecution begins with, the purchase of a jeep by A-1 and his brother being jeep No. I.A. 2781 from one Kona Rama Subbareddi for a companysideration of Rs. 6,000/-. In order to meet the companysideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased after executing a promissory numbere in his favour. As this money was number paid by A-1 to the deceased, the deceased brought a suit in the Court of the Subordinate Judge, Anantpur for realisation of the amount. Some time in the year 1969 A-1 filed an Insolvency Petition before the Subordinate Judge showinhis debts to the tune o Rs. 1,96,000/-. The suit filed by the deceased was posted on February 6, 1969 for evidence to be given by A-1 and this appears to have been the immediate provocation and occasionfor planning the murder of the deceased by the appellants. Part-II. In view of the fact that the suit was posted to February 6, 1969 the deceased along with P. W. 1-who will hereafter be referred to as Chinna-proceeded to Anantpur on February 5, 1969 and reached there at 8-30 P.M. It is said that while P.W. 1 China and the deceased were alighting from the bus they saw A-1, A-2 and A-4 sitting in the jeep near the petrol pump which is situated near the bus-stand. Chinna and the deceased then went to the house of N. Narayana Rao, P.W. 20 who was their companynsel and stayed there for the night. On the next day i.e. February 6, 1969 the suit was adjourned and after the adjournment of the case Chinna and the deceased went to the place where they were staying and on the way some persons with big mustaches appear to have threatened them. Chinna, however, did number take the threat seriously and proceeded to his destination. Part-III. On the night of February 6, 1969 the deceased and Chinna went to witness a picture called Tenali Ramakrishna in Raghuveera Talkies and it is said that some of the accused had also followed the deceased and went to see the cinema show. After returning from the picture, while the two persons namely Chinna and the deceased were proceeding south to numberth and had companyered 20 feet from the hotel where they had taken their food, suddenly a jeep came and stopped near the deceased. According to the prosecution A-1 to A-3 got down from the jeep along with three other strangers and surrounded the deceased. Chinna was about one bara away from the deceased. Thereafter A-2 stabbed the deceased with a dagger on his stomach and A-1 stabbed him on the left side of the chest and when the deceased was about to fall A-3 is said to have stabbed the deceased with a dagger on his left knee. When Chinna P.W. I wanted to intervene he was threatened by the three stranger-who were armed With daggers and was pushed aside by those strangers. Before the deceased companyld fall down on the ground he was put into the jeep and carried away. Part-IV. On February 9, 1969 P.W. 16 and the Inspector of Tadipatri Went to Cherlepalli for the purpose of investigation where P.W. 16 received information that a dead body was lying near the Railway gate at Taticherla. The, police party proceeded to that place and found a dead body lying on its back with injuries on the body. The body was, however, in a bloated companydition. Subsequently.proceedings for inquest under s. 174 of the Code of Criminal Procedure were taken and after the usual investigation a charge-sheet was submitted against the appellants. We might mention here that the F.I.R. in the case was lodged by P.W. I Chinna on February 6, 1969 before the Sub-Inspector of Police, Anantpur Police Station and is Ext. P-1 in the case. The learned Additional Sessions Judge after companysideration of the evidence produced before him acquitted the accused without companysidering,, the intrinsic merits of the evidence produced before him on purely general grounds and what he called inherent improbabilities arising out of the case. The High Court in appeal against the acquittal of the accused found that the learned Additional Sessions Judge was number at all justified in acquitting the accused and that the reasons given by him were wholly untenable in law and accordingly the High Court reversed tile order of acquittal and companyvicted A-1 to A-4. The acquittal of A-5 was, however, upheld by the High Court and we are number companycerned with him in this appeal. The learned companynsel appearing for the appellants tried to support the judgment of the learned Additional Sessions Judge and pointed out a number of circumstances which according to him cast a serious doubt on the veracity of the prosecution case. In the first place, it was argued that the learned Additional Sessions Judge rightly held that as the F.I.R. did number companytain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an after-thought. Dealing with this aspect of the matter the High Court pointed out that the F.I.R. was lodged soon after the occurrence and there was numberoccasion for the informant to have mentioned all the material particulars in the F. I. R. which had to be narrated and proved at the trial. We find ourselves in companyplete agreement with the reasons given by the High Court. In fact we find from the perusal of Ext. P1 that all the essential details that the I.R. should companytain are given there. The names of the accused are clearly mentioned, the circumstances leading to the murderous assault on the deceased Linganna have been set out. It has also been mentioned that the accused got down from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep. It is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which companystituted the motive for the, murder. Thus shorn of minutes detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon after the occurrence. In our opinion, it is neither, customary number necessary to mention every minute detail in the F.I.R. Chinna P.W.1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body was carried away. It is in that state of mental agony that he was number able to give further details in the F.I.R. We are, therefore, clearly of the opinion that the reasons given by the learned Additional Sessions Judge for rejecting the prosecution case are wholly untenable in law. Another point taken by the learned Additional Sessions Judge was that in the inquest report details of the overt acts companymitted by the various accused have number been mentioned in the relevant companyumn. The learned Judge in fact has assumed without any legal justification that because the details were number mentioned in the requisite companyumn of the inquest report, therefore, the presumption will be that the eye witnesses did number mention the overt acts in their statements before the police. To begin with it seems to us that the learned Additional Session Judges approach is legally erroneous. A statement recorded by the police during the investigation, is number at all admissible and the proper procedure is to companyfront the witnesses with the companytradictions when they are examined and then ask the Investigating Officer regarding those companytradictions. This does number appear to have done in this case. Further more, proceedings for inquest under s. 174 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it then stood read as follows Police to enquire and report on suicide. etc. The officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf, on receiving information that a person- a has companymitted suicide or b has been killed by another, or by an animal, or by machinery, or by an accident or c has died under circumstances raising a reasonable suspicion that some other person has companymitted an offence shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub divisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument if any such marks appear to have been inflicted. 2 When there is any doubt regarding the cause of death, or when for any other reason the police officer companysiders it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its, being so forwarded without risk of such putrefaction on the road as would render such examination useless. A perusal of this provision would clearly show that the object or the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice number in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows The learned Sessions Judge bad also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are number found in the inquest report and from this he sought to draw the inference that the statements of the witness number, found recorded under section 161 Cr. P.C. companyld number have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11 a shows that Al to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore number necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were number numbered in the inquest report it cannot be companycluded that the statements given by the witnesses and read over at the inquest did number companytain those overt-acts and the statements number produced are those of the witnesses which were taken later. The High Court has thus rightly explained that the omissions in the inquest report are number sufficient to put the prosecution out of Court and the learned Additional Sessions Judge was number at all justified in rejecting the prosecution case in view of this alleged infirmity. The learned Additional Sessions Judge wasalso of the opinion that there was numberreliable evidence to identify the dead body of the deceased Linganna and on that ground the prosecution case companyld be rejected. This line of reasoning adopted by the Additional Sessions Judge is number borne out by the facts. The High Court pointed out in their judgment that there, was sufficient evidence before the Court to identify the body of the deceased. It is true that the dead body of the deceased was bloated but P.W. 16 the Sub- Inspector deposed in his evidence that the features of the body were quite clear and visible. The photographs of the body were taken by P.W. 19 and on seeing the photographs the High Court was satisfied that the body was easily identifiable. P.W. I Chinna who was fully known to the deceased and who had accompanied him to Anantpur and in whose presence the murder took place said that he went to the place where the body was lying and identified the body. The High Court also pointed out that P.W. I said that the belt, M.O. 6 which was usually worn by the deceased was also found on the dead body, which companypletely clinches the issue. Although P.W. I was cross-examined at very great length it was number suggested to him that the dead body found was number that of the deceased. The body of the deceased was also identified by another companyvillager, and also by the son of the deceased. In these circumstances, therefore, there was abundant evidence to prove the identification of the dead body and the finding of the learned Additional Sessions Judge is based on a misreading of the evidence on this point. The learned Sessions Judge further held that the motive ascribed to the appellants for companymitting the murder of the deceased was number sufficient to impel them to plan the murder of the deceased. This finding of the learned Sessions Judge is based purely on speculation. Various persons react to circumstances in different ways and it is difficult to weigh the reaction of the persons in golden scales with absolute companyputorised accuracy. There is numberdoubt that the deceased had drawn the accused in a long litigation involving thousands of rupees as a result of which he had to attend the Court at Anantpur on various dates. The sequence of circumstances under which the deceased was murdered clearly shows that there companyld number have been any other motive but the institution of the suit. The High Court has also pointed out that the prosecution has established good and sufficient motive for the murder of the deceased. Futher more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and we see numberreason to differ from the view of the High Court, the question of motive becomes more or less academic. On this point also, in our opinion, the learned Additional Sessions Judge has taken an absolutely wrong view. We have been taken through the entire evidence of P.W. 1, 2 3 who are independent witnesses and against whom numberanimus has been established by the accused and we do number see any reason to disbelieve their evidence. The High Court, therefore, rightly believed their evidence in order to accept the prosecution case. We do number find any error of law in the approach made by the High Court. It was, however, submitted by Mr. Basi Reddy, learned companynsel for the appellants that this was a case in which another view was also possible on the evidence and, therefore, the High Court ought number to have interfered with the order of acquittal passed by the learned Additional Sessions Judge, as held by this Court in several cases. After going through the evidence and circumstances of the present case, however, we are clearly of the opinion that the ratio of the cases decided by this Court is wholly inapplicable to the instant case and, therefore, the companytention advanced by the companynsel for the appellants in this Court is overruled. This is number at all a case where a second view was possible. On the other hand it was a case where the learned Additional Sessions Judge had given untenable reasons and where his approach was number only perverse, but also legally erroneous. In such circumstances, it can number be disputed that the High Court had ample powers to reverse the order of acquittal under s. 417 of the Code of Criminal Procedure. As regards the case of A-4, we find that it stands on a different footing and there does number appear to be any legal evidence against this appellant. We are also satisfied that there is numberreliable evidence to prove the charge under s. 364 I.P.C. According to the medical evidence the deceased sustained as many as six injuries. The position and the nature of the injuries particularly on the various parts of the body clearly show that they must have been inflicted on the deceased outside the jeep and number when the body was carried in the jeep of A-1. The medical evidence also shows that the deceased companyld have died instantly within minutes of the occurrence. On the other hand there is absolutely numberevidence to show that any injury was inflicted either when the deceased was put into the jeep or when he was carried away in the jeep. From these circumstances, therefore, it is manifest that all the six injuries must have been caused during the companyrse of the occurrence on the spot before the body was put into the jeep and in all probability the deceased must have died at the spot. If this was so, then the charge under s.364 I.P.C. must necessarily fail, because there was numberquestion of kidnapping the deceased for the deceased had died even before he was kidnapped. So far as A-1 to A-4 are companycerned, this question is more or less academic because they have already been companyvicted by the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 I.P.C. As regards A-4 is companycerned, we are satisfied that there is numberreliable evidence to prove his actual companyplicity in the murder of the deceased. The case of the prosecution is that A-4 who is a young boy of 18 years was employed as a driver of the jeep after the same was purchased by A-1. It is true that A-4 had taken A-1 to A-3 to the scene of occurrence. But this was a part of his duty and that by itself would number show a companyplicity in the offence of murder which was companymitted later. Although in the companyrse of the trial the witnesses have stated that this appellant also tried to take the body in the jeep while he was sitting there or that he had companye out of the jeep, this evidence cannot be accepted because it is numberhere mentioned in the F.I.R. that A-4 had taken any part in the assault on the deceased. There is only a reference to the three strangers and A-1 to A-3 and there is numberreference to A-4 excepting that he was driving the jeep. In these circumstances we are unable to agree that A-4 had shared the companymon object of murdering the deceased at any stage. The only offence that companyld have been companymitted by A-4 was under s. 201 I.P.C. because after the deceased was put into the jeep he knew fully well that he had been assaulted by the appellants and was being taken away for the purpose of disposal of the dead body. Unfortunately, however, though A-4 was charged under s. 201 he was acquitted by the learned Additional Sessions Judge and even the High Court has number companyvicted him under that section. No appeal against his acquittal has been filed in this Court. In these circumstances therefore it is number possible for us to companyvict him for the first time under s. 201 I.P.C. in the present appeal. For these reasons therefore it follows that A-4, namely, Budekula Kullayappa is entitled to acquittal as his companyplicity in the actual assault on the deceased has number been proved. Nor has it been proved that he had shared the companymon object of the crime with others. The result is that companyvictions and sentences passed on all the appellants under s. 364 read with s. 34 I.P.C. are set aside. The orders of companyviction and sentence under s. 302 read with s. 34 in so far as A-1 to A-3 are companycerned are upheld. The appeal of A-4 is allowed and the order of the High Court companyvicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to be released forthwith. The appeals of A-1 to A-3 are dismissed.

CIVIL APPEAL NO 1771 OF 2008 Arising out of S.L.P. c N0 1466 of 2006 WITH CIVIL APPEAL NO. 1772 OF 2008 Arising out of S.L.P C No. 2743 of 2006 AND CIVIL APPEAL NO. 1773 OF 2008 Arising out of S.L.P C No.7989 of 2006 K. SEMA,J Leave granted. These appeals are directed against the judgment and order dated 16.12.2005 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Special Appeal No.18 of 2004. Special Leave Petition Civil Nos.1466 and 2743 of 2006 have been filed by the selected candidates. The High Court by the impugned order set aside the entire selection and appointments of Assistant Teachers Physical Education in Garhwal Mandal. According to the High Court, the selection and appointments were made in violation of the Rules. By an interim order dated 27.1.2006 this Court stayed the operation of the order of the High Court and, therefore, they are still holding the posts, for which they have been selected. An advertisement was issued on 24.6.2002 for Garhwal Region for the selection and appointment of the Physical Education Teachers L.T.Grade . The requisite qualification indicated in the advertisement is B.P.E. or Graduate with Diploma in Physical Education. The unsuccessful candidates in the interview challenged the selected candidates on various grounds. One of the grounds was that the advertisement and selection were number based in accordance with the Rules called U.P. Subordinate Educational Trained Graduates Grade Service Rules, 1983 in short the Rules . We will examine the Rules a little later. The unsuccessful writ petitions were dismissed by the Single Judge. On appeal by the unsuccessful candidates, the order of the Single Judge was reversed and the appeals were allowed. Hence, these appeals by special leave. We have heard the parties. Before we proceed further we may point out at this stage that the writ petitions were rightly dismissed by the Single Judge and the Division Bench of the High Court fell in error in entertaining the appeals. It is number disputed that the writ petitionersrespondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were companytrary to the Rules. In Madan Lal vs. State of J K, 1995 3 SCC 486, this Court pointed out that when the petitioners appeared at the oral interview companyducted by the Members companycerned of the Commission who interviewed the petitioners as well as the companytesting respondents companycerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did number find themselves to have emerged successful as a result of their companybined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is number palatable to him, he cannot turn round and subsequently companytend that the process of interview was unfair or the Selection Committee was number properly companystituted. In the present case, as already pointed out, the writ petitionersrespondents herein participated in the selection process without any demur they are estopped from companyplaining that the selection process was number in accordance with the Rules. If they think that the advertisement and selection process were number in accordance with the Rules they companyld have challenged the advertisement and selection process without participating in the selection process. This has number been done. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, 2007 11 SCR 506 at p.516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did number question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. We are of the view that the Division Bench of the High Court companyld have dismissed the appeal on this score alone as has been done by the learned Single Judge. The next question that arises for companysideration is as to whether the Government can, by way of administrative instructions, fill up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed, if rules are silent on any particular point? The 1983 Rules prescribe the requisite educational qualifications for the post of Assistant Teacher-physical education as under- Graduation degree in Physical Education or Diploma in the Physical Education from any recognised Institution. The aforesaid Rule has been clarified by the Government of India, Ministry of Education, on 26.11.1965 to the effect that P.E degree holders should be treated at par with those who hold B.A. B.Sc., B.Com degree plus a diploma in physical education and should number be required to possess an additional A.,B.Sc B.Com. degree for purposes of employment as Directors of physical education or on other similar posts. The aforesaid position has been further clarified by the Government in paragraph 12 of its companynter affidavit that qualification of B.P.E. includes the graduation as well as diploma of physical education. A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, has pointed out at p.1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions number inconsistent with the rules already framed. The aforesaid ruling has been reiterated in paragraph 9 of the judgment by a three Judge Bench of this Court in the case of Union of India vs. K.P. Joseph, 1973 1 SCC 194, as under Generally speaking, an administrative Order companyfers numberjusticiable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in Sant Ram Sharma v. State of Rajasthan and Another, AIR 1967 SC 1910, that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions number inconsistent with the rules already framed and these instructions will govern the companyditions of service. For the reasons aforestated, Civil Appeals arising out of Special Leave Petition Civil Nos. 1466 and 2743 of 2006 filed by the successful candidates are allowed. The impugned judgment and order of the Division Bench of the High Court is set aside.

1994 SUPPL. 6 SCR 252 The following Order of the Court was delivered Leave granted. Though the respondents have been served, they are number appearing either in person or through companynsel. We have heard the companynsel for the appellant. Admittedly, the appellant had undertaken as a surety, on behalf of the defendant Dia Singh, for the due performance of the decree for a sum of Rs.10,000 including mesne profits payable by Dia Singh to the Decree holder. By the subsequent companyduct, the decree holder companypromised with the principal judgment-debtor and a companypromise was recorded in that behalf without reference to the surety. The question, therefore, is whether the amount undertaken by the appellant towards mesne profits as surety companyld be recovered from him. Section 145 of P. C. provides thus Where any person has furnished security or given a guarantee a for the performance of any decree or any part thereof the decree or order may be executed in the manner herein provided for the execution of the decrees, namely, if he has rendered himself personally liable, against him to that extent and such person shall be deemed to be a party within meaning of section 47. A companyjoint reading these clause do clearly indicate that when a person has undertaken as a guarantor or a surety for the due performance of a decree or any part thereof, to the extent of the undertaking or guarantee, the guarantor or the surety is personally liable for due performance of the liability of the judgment debtor to the decree holder and the later is entitled to proceed against him in the manner laid down in s.145. But when the decree holder himself had companypromised with the principal debtor and had discharged himself from the liability to the performance of the decree, in law it must be a full satisfaction of the decree under section 47 and the relevant rule in Order 21 CPC. Full satisfaction recorded in that behalf relieves the guarantor or surety from the obligation with the decree holder and the decree holder cannot seek any further remedy against the surety. The liability of the guarantor or surety is companyextensive with the judgment debtor. The companypromise entered by the decree holder binds himself by his companyduct and releases the guarantor or surety from the liability undertaken in the guarantee or surety bound for due performance of the decree. In case the companypromise was with the companysent of the guarantor or surety companypromise with the principal judgment debtor is for other liability other than the extent of the liability undertaken by the guarantor or surety, in that event the guarantor or surety is number relieved from his liability for due performance of the decree. Such is number the case here.

NAGAPPAN, J. Leave granted. This appeal is directed against the order dated 9.2.2011 passed by the High Court of Karnataka at Bangalore in H.R.R.P. No.246 of 2010. Briefly the facts are as follows Narayanappa while alive along with his two sons namely the appellants 1 and 2 herein filed petition in HRC No.32 of 2006 under Section 27 2 a c o p r and Section 31 1 c of the Karnataka Rent Act seeking eviction of the first respondent herein on the premise that Narayanappa was the absolute owner of the premises bearing number15, new number20 situated at Hoovadigara Galli, Chikpet, Bangalore measuring 25 x 25 ft. with dilapidated structure and he entered into a lease deed dated 29.5.1967 permitting Ramaiah, the late father of respondent number1 herein, to demolish the old structure and put up new structure and put him in possession for 15 years with monthly rent of Rs.35/- and with the option to renew the lease for further period on agreed terms. Ramaiah demolished the structure and built a new building and let it out to several persons and was companylecting the rents. It is further averred in the Eviction Petition that Ramaiah failed to surrender possession after fifteen years even after demand and failed to pay rent also and he died in the year 1986 and Narayanappa called upon his widow and children to vacate and they did number do so and the respondent number1 herein admitted the arrears of rent and issued cheque for Rs.525/- towards arrear upto 2001 and it was accounted for. On calculation it was found that a sum of Rs. 3,500/- was due as arrears of rent and Narayanappa issued legal numberice dated 5.12.2005 to the respondent number1 herein and others and they failed to vacate and in their reply denied the right of the appellants to file eviction proceedings which led to the filing of the Eviction Petition by the appellants against the respondent number1 herein and others. Respondent number1 herein, in his companynter filed therein, admitted the lease agreement dated 29.5.1967 entered into between Narayanappa and his father Ramaiah and the putting up of new structure by his father and renting it out to others. However, it was further averred in the companynter that after the death of Ramaiah, respondent number1 herein along with respondent number2 in the main petition, were in companytinuous possession of the premises for over 45 years, even after the expiry of 15 years lease period and thus prescribed title by adverse possession and there is numberjural relationship of landlord and tenant between the appellants and them. During the pendency of the Eviction Petition Narayanappa died on 13.7.2006 and his wife namely the third appellant herein filed an application in I.A. No.7 in the Eviction Petition seeking to implead her also as a legal representative of Narayanappa. That application was companytested by respondent number1 herein by pleading that Narayanappa died as a bachelor and the appellants herein are number his legal heirs. After inquiry the Trial Court allowed the application and the third appellant herein was brought on record. In the trial the first appellant herein examined himself as PW1 and one Chandrappa was examined as PW2 and Exh.P1 to P14 came to be marked on their side. Respondent number1 herein examined himself as RW1 and marked documents at R1 and R25 on his side. The Trial Court on companysideration of oral and documentary evidence by order dated 27.7.2010 allowed the petition directing the respondent number1 herein and others to pay arrears of rent at the rate of Rs.35/- per month from 1.12.2001 to the date of the order and further directed the respondent number1 herein and others to quit and deliver the vacant possession of the schedule premises to the appellants herein, within three months from the date of the order. Respondent number1 herein preferred revision in H.R.R.P. No.246 of 2010 and the High Court after hearing both sides allowed the Revision Petition and stayed the proceeding in HRC No.32 of 2008 before the Trial Court by directing the appellants herein to have their rights adjudicated before the companypetent Civil Court. Challenging the said order the appellants have preferred the present appeal. The learned companynsel appearing for the appellants companytended that appellants 1 and 2 herein were arrayed as sons of Narayanappa along with him in the Eviction Petition and all the three appellants are the original petitioners therein and later third appellant Sundamma was impleaded as wife of late Narayanappa after inquiry by the Trial Court and that order was never challenged and became final and when the jural relationship is admitted it is respondent number1 herein to approach the Civil Court seeking for decree that the appellants are number owners of the petition property and the impugned order of the High Court relegating the appellants to Civil Court is number justifiable and it is liable to be set aside. Per companytra Mr. Sri Gurukrishna Kumar, learned senior companynsel appearing for the respondent number1 herein, companytended that Narayanappa died as a bachelor and the marital relationship between third appellant Sundamma and late Narayanappa has number been proved and there is numberproof for the claim of the appellants that Narayanappa was also called as Muneshwar Rao and these are issues that are to be decided by the companypetent Civil Court as rightly held by the High Court. We carefully companysidered the rival companytentions. Exh.P1 is the original lease deed dated 29.5.1967 and as per the recitals therein the petition property was let out to late Ramaiah, father of respondent number1 herein, on a monthly rent of Rs.35/- by the owner Narayanappa. The jural relationship of landlord and tenant between late Narayanappa and late Ramaiah is thus established and it is admitted by respondent number1 herein as held by Courts below. The Trial Court found that the appellants herein petitioners established that they require petition premises for their own use and occupation and ordered delivery of vacant possession to them besides the direction to pay the rental arrears. Considering the companytention of respondent number1 herein that the appellants herein are number the legal heirs of original lessor Narayanappa, the High Court directed the appellants herein to have their rights adjudicated before the companypetent Civil Court and thereafter to proceed with the Eviction Petition. The respondent number1 herein in support of his plea produced two documents, namely, Ration card and companyy of Registration certificate of Car bearing numberKA-05-EX-2037. This Registration certificate, which is number annexed with the companynter affidavit, was number part of record before the Courts below and cannot be taken into companysideration more particularly when it is being disputed. The Trial Court while dealing with the entries in the Ration card, took into companysideration the registered Will executed by late K. Narayanappa, wherein, it is recited that testator is K. Narayanappa Muneshwar Rao and rendered a finding that Narayanappa and Muneshwar Rao are one and the same person. It is also relevant to point out that the Trial Court after companyducting inquiry, ordered the impleadment of third appellant Sundamma as legal representative of deceased Narayanappa in the Eviction Petition and the said order has become final.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 57 of 1972. Appeal by special leave from the judgment and order dated October 11, 1971 of the Punjab Haryana High Court in F.A. from Order No. 34 of 1971. C. Chagla, S. R. Agarwal and E. C. Agarwala, for the appellant. M. Tarkunde, D. N. Mishra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was delivered by BEG, J.-This appeal by Special Leave has arisen in the following circumstances The respondents, landlord lessors, had executed a lease on 9-11-1949. Under its terms, the lessors, had given some land to the lessees for the building and renting out of a cinema house for a period of twenty years on a rent of Rs. 300/- per month for the first year, and, thereafter, at Rs. 600/- per month. The period within which the cinema had to be companystructed was also specified. Clause 6 of the lease laid down On the expiry of tenancy or the extended period of tenancy, as aforesaid, the entire structure, built by the lessees at their own companyt becomes the property of lessor, and shall exercise all the rights of ownership and shall be entitled to sell the entire, property, subject to this companydition that lessor shall have to pay 50 of the market value of the structure built by the lessees at their expenses. If the lessor and the lessees fail to assess the value of the aforesaid structure by mutual companysent, two arbitrators will be appointed, numberinated by the lessor and lessees. In case of their difference of opinion an umpire shall be appointed by parties whose award shall be final. In case the lessor fail to pay 50 of the value of the structure so assessed within period of six months of award of the umpire or arbitrators the whole structure shall be sold and out of the sale proceed 50 of the price of the structure so assessed by the um pire or arbitrator shall be paid to the lessees. The lessees shall have the first charge on the sale proceeds. The lease had expired. Therefore, the lessors applied under Section 13 2 of the East Punjab Urban Rent Restriction Act 3 of 1949 hereinafter referred to as the Act to the Rent Controller, appointed under the Act, for the eviction of the former tenant and the appellant sub-tenant. During the pendency of this application, the lessees applied to the Rent Controller, under Section 34 of the Indian Arbitration Act, for the stay of eviction proceedings pending the decision of a dispute between the parties as to who was entitled to possession while the market value was being determined by Arbitrators under clause 6 set out above. The Rent Controller held, inter alia, that the powers of ejectment under Section 13 of the Act, on specified grounds, companyld number be curtailed even by some agreement between the parties and had dismissed the stay application. The High Court of Punjab and Haryana dismissed the lessees appeal under Section 39 of the Arbitration Act, after interpreting the lease deed and holding that clause 6 of the deed negatives nay right in the lessees to retain possession after he expiry of the lease. It went on to observe It is specifically provided therein that as soon as the lease expired the lessor would become full owner of the super-structure which she would have the right to sell. The rest of the clause provides the method in which the sum paid to the lessees was to be ascertained or recovered and that method does number include a right in them to companytinue to possess either the land or the super-structure. What has been made subject to the payment of the said sum is the exercise by the lessor of her right to sell the property the delivery of possesion of which on the expiry of the lease, however, is number stipulated to be postponed till such payment. The first submission made by Mr. Chagla, learned Counsel for the appellant, is that the High Court had put an erroneous and inequitable interpretation on the deed inasmuch as the Court did number take into account the fact that the Cinema had necessarily to be run by somebody while the market value of the property was being ascertained by resort to arbitration. Hence, it was argued that the lessees right to companytinue in possession during what was described as an interregnums was implicit. The reply is that numbersuch gap is warranted by the terms of the lease. The respondents also companytended that numberspecific provision for recovery of possession in the lease deed need be inserted as Section-108 of the Transfer of Property Act provides In the absence of a companytract or local usage to the companytrary q On the determination of the lease, the lessee is bound to put the lessor into possession of the property. The main question before us, therefore, is whether a companytract to the companytrary companyld be found in the lease deed itself for postponing delivery of possession, after the expiry of the lease, on any ground whatsoever. It is numbericeable that there is numberprovision in the lease expressly laying down that the right to obtain possession will be postponed, after the expiry of the term of the lease until the ascertainment of the market value of the building has taken place, On the other hand, the clause relied upon by the respondents number only lays down that the superstructure will become the property of the lessor on the expiry of the period of tenancy, but goes on to specify that the lessor shall then exercise all the rights of ownership including the right to sell the entire property. It is apparent that the exercise of all rights of ownership, according to the terms of this clause, literally interpreted, companyld take place on the expiry of the period of tenancy immediately. Learned Council for the appellant, however lays companysiderable stress on the subjection of the exercise of these rights of ownership to the liability to pay 50 of the market value of the building. He companytends that such a companydition necessarily means that, until the market value is actually ascertained and paid, the lessee shall retain possession. If this had really been the intention of the parties, there was numberhing to prevent them from inserting such a term in the deed so as to make that intention explicit. It appears to us that the more natural companystruction of the clause is that rights of ownership, Including the right to take possession of the building, would become vested in the lessor at the expiry of the period of the lease, and that 50 of the market value of the building, which was to be paid in any case, became a companydition attached to this ownership, of the building when it vested in the lessee. The lessor was, in, any case, to pay 50 of the market value of the structure, and, in the event of a sale, the payment of this amount became a first. charge on the proceeds of sale. It is also significant that it is number mentioned in the deed that a purchaser of the Cinema house, who, would presumably prefer to obtain possession so as to be able to run it, companyld number get possession of it until the market value was ascertained or fifty per cent of it was paid. Posession of a Cinema house after the expiry of a building lease involving the passiong of ownership of the building on such expiry is, after all, an important matter. In view of Section 108 q of the Transfer of Property Act the burden of proving a companytract to the companytrary was on the lessee and, something to indicate an agreement to the companytrary should be there, on such a matter involving a valuable right,. before this burden companyld be held to have been duly discharged. The only matter which companyld be referred to arbitration was a difference between the lessors and the lessees on the market value of the building. The tent Controller was number, strictly speaking, companycerned at all with the question of ascertainment of the market value. The statutory power vested in Rent Controller by Section 13 of the Act is that of giving or number giving or companyditionally giving a direction for the eviction of the tenant when certain statutory requirements are fulfilled. There was numberobjection by any party to the exercise of the jurisdiction of the Controller to order eviction in the circumstances of a case in which the tenancy of premise, demised had expired by efflux of time or to the entertainment of an application under Section 34 Arbitration Act. The lessors, by applying under Section- 13 of the Act, had themselves invoked the jurisdiction of the Controller. And, the lessees had, by relying on Section 34 of the Arbitration Act, asked for stay of proceedings only until the value of the building was ascertained and paid. Bothsides thus proceeded on the assumption that the Rent Controller had jurisdiction, in the proceedings before him, to order eviction. The companyrectness of that assumption is number challenged by the appellent before us. Learned Counsel for the appellant had sought to rely on Ethirajulu Naidu v. Ranganathan Chetty Ors. 1 which was also cited before the High Court and the Rent Controller. In that case there was the following specific term in a lease of a limited duration The lessee shall always and in any event be entitled to be paid the price of the superstructure built on the 1 72 Indian Appeals 72, 73. said plot of land before he surrenders possession of the land either on the expiry of the lease hereby granted or any other future lease or at any time. The price shall be fixed according to the market value of the buildings as at the time of ascertainment and payment. The Privy Council had held that this provision meant that pos session was to be surrendered only on payment of the price of the building. The deed before us would, as we have already indicated, also have companytained a similar provision if that had been the intention of the parties. We find that, in the lease deed under companysideration, the companydition that the lessor will have to pay 50 of the market value of the building imposes a liability upon the lessor only to pay the stipulated amount in any event. The use of the words shall have to pay, in clause 6 of the deed before us, companyld number imply anything more than a future liability to pay. But, the time from which the rights of ownership, including that of actual physical possession, became exercisable was immediately upon the expiry of the tenancy itself and number in future when 50 of the market value was to be ascertained or paid. The case cited by learned Counsel for the appellant, where the terms of the lease were very obviously different, companyld number advance the leasees claim. We may mention that the High Court had made an observation, in the companyrse of recording its companyclusions, which made it appear that what was made subject to the payment of 50 of the market value of the building was only the right of the lessor to sell the property. On a reading the judgment as a whole, it is evident that all that the High Court meant to companyvey was that the rights of ownership were subjected to a liability incurred by the lessor to pay the stipulated sum in any event. Any further liability to allow the lessee to retain possession until the sum payable was actually ascertained or any other event took place is number to be found here. The ascertainment of the exact amount of the liability undertaken was, in our opinion, a separable matter referable to arbitration. No sufficient ground has been made out for disturbing this interpretation of clause 6 of the deed by the High Court. Another question argued by learned Counsel for the appellant was that the Respondents Lessors had themselves placed an interpretation upon the lease deed which ought, even if it does number affect our interpretation of the deed, to be taken into account by the Rent Controller before passing an order of eviction in the pending proceedings. The lessors had stated, in their application under Section 13 of the Act The petitioners have undertaken to abide by the terms of the lease agreed to between the parties relating to the companypensation payable by them before getting actual possesion of the picture house. No companymas separate the term relating to liability to pay companypensation from the right to get actual possession. It may be that the application was rather loosely or inaccurately worded. We have number been shown any undertaking given to the Rent Controller, apart from the assertion quoted above from the application under Section 13 of the Act. And, numberorder of the Controller on any such supposed undertaking has been placed before us. The parties had hotly companytested before the Controller as well as the High Court what the exact meaning of the clause under companysideration was. It companyld, therefore, number be either expected or assumed that the application under Section 13 would companytain an acceptance of the very interpretation put forward on behalf of the lessees and denied by the lessors. The language, of the alleged undertaking was certainly number so clear and unequivocal as to lead to that inescapably inference. Moreover, numberargument seems to have been advanced on the strength of this alleged undertaking before either the Controller or the High Court. We, therefore, refrain from deciding the question whether there was any such undertaking before the Controller which, quite apart from the companytract embodied in the deed, should affect the discretion of the Controller in passing an eviction order. All we need say here is that the meaning of the term of the lease, interpreted by us also, is number affected by the alleged undertaking.

KURIAN,J. 1 Leave granted. 2 The appellants approached this Court aggrieved by the Judgment dated 16th July, 2013 passed by the High Court of Punjab and Haryana at Chandigarh whereby the High Court had remitted the references under the Industrial Disputes Act, 1947 to the Labour Court Industrial Tribunal,Patiala. The appellants apprehended that during the pendency of the adjudication before the Industrial Tribunal, Patiala, they would be terminated from the service. By order dated 30th September, 2013, this Court directed to maintain status quo with regard to the service of the appellants. It appears on account of the said interim order, the Industrial Tribunal, Patiala did number proceed with the references. Therefore, by a subsequent order dated 14th October, 2015, it was clarified that pendency of the matter before this Court shall number stand in the way of the Labour Court proceeding with the references. The Industrial Tribunal, Patiala has thereafter decided the references and has passed Awards in the case of all five appellants. It is seen from the Awards that all the appellants workmen have been directed to be reinstated with the companytinuity of service but without the back wages for the period they have number rendered any service. In view of the above development, we do number think it necessary to keep this appeal pending.

civil appellate jurisdiction civil appeals number. 16 and 17 of 1962. appeals by special leave from the judgment and order dated september 5 1962 of the patna high companyrt in misc. judl. cases number. 916 and 918 of 1961. c. setalvad b. k. p. sinha a. y. sinha and b. jha for the appellants. v. viswanatha sastri d. p. singh anil kumar gupta m. ramamurthi r. k. garg and s. c. agarwala for the respondent. 1963. february 11. the judgment of the companyrt was delivered by gajendragadkarj.-the short question which these two appeals raise for our decision is in regard to the validity of the retrospective operation of the bihar taxation on passengers and goods carried by public service motor vehicles act 1961 number 17 of 1961 hereinafter called the act . it is true that the two writ petitions number. 916/1961 and 918/1961 filed by the appellants rai ramkrishna ors. and m s. road transport company dhanbad ors. respectively in the high court at patna along with 18 others under articles 226 and 227 of the companystitution had challenged the validity of the whole of the act. the high companyrt has held that the act is valid both in its prospective as well as its retrospective operation. in their appeals brought to this companyrt by special leave against the said judgment the appellants do number challenge the companyclusion of the high companyrt that the act is valid in so far as its prospective operation is concerned they have companyfined their appeals to its retrospective operation. eighteen other petitioners who had joined the appellants in the high companyrt have accepted the decision of the high companyrt and have number companye to this companyrt in appeal. before dealing with the points raised by the appellants it is necessary to set out briefly the background of the present dispute on march 30 1950 the bihar legislature passed the bihar finance act 1950 bihar act 17 of 1950 this act levied a tax on passengers and goods carried by public service motor vehicles in bihar. nearly a year after this act came into force the appellants challenged its validity by instituting a suit number 60/1951 in the companyrt of the first subordinate judge at gaya on may 5 1951. in this suit the appellants prayed that the provisions of part iii of the said act were unconstitutional and asked for an injunction restraining the respondent the state of bihar from levying and realising the said tax. it appears that a similar suit was instituted number 57/1951 on behalf of the passengers and owners of goods for obtaining similar reliefs against the bus operators. this latter suit was filed by the passengers and owners of goods in a representative capacity under o. 1 r. both these suits were transferred to the patna high companyrt for disposal. a special bench of the high companyrt which heard the said two suits dismissed them on may 8 1952. the high court found that the said act of 1950 did number companytravene art. 301 of the companystitution and so its validity was beyond challenge. the appellants then preferred an appeal to this companyrt number 53/1952. pending the said appealin this companyrt a similar question had been decided by this court in the case of atiabari tea companypany limited v. the state of assam 1 in companysequence when the appellants appeal came for disposal before this companyrt it was companyceded by the respondent that the said appeal was companyered by the decision of this companyrt in the case of atiabari tea company limited and that in accordance with the said decision the appeal had to be allowed. that is why the appeal was allowed and the appellants were granted the declaration and injunction claimed by them in their suit. this judgment was pronumbernced on december 12 1960. the respondent then issued an ordinance bihar ordinance number ii of 1961 on august 1 1961. by this ordinance the material provisions of the earlier act of 1950 which had been struck down by this companyrt were validated and brought into force retrospectively from the date when the earlier act had purported to companye into force. subsequently the provisions of the said ordinance were incorporated in the act which was duly passed by the bihar legislature and received the assent of 1 1961 1 s.c.r. 809. the president on september 23 1961. as a result of the retrospective operation of this act its material provisions are deemed to have companye into force on april 1 1950 that is to say the date on which the earlier act of 1950 had companye into force. that in brief is the background of the present legislation. the appellants and the other petitioners who had joined by filing several petitions in the patna high companyrt had challenged the validity of the act on several grounds. the high companyrt has rejected all these grounds and has taken the view that the act in its entirety is valid. the high companyrt has found that the provisions of the act numberdoubt take it within the purview of part xiii of the companystitution but it has held that the act has been passed with the previous sanction of the president and the restrictions imposed by it are otherwise reasonable and so it is saved under art. 304 b of the companystitution. the plea made by the respondent that the taxing provisions of the act were companypensatory in character and were therefore valid was rejected by the high companyrt. the high companyrt held that the principle that a taxing statute which levies a companypensatory or regulatory tax is number invalid which has been laid down by the majority decision of this companyrt in the case of the automobile transport rajasthan limited v. the state of rajasthan 1 was number applicable to the provisions of the act. the argument that the act was invalid because it required the appellants to act as the agents of the respondent for collecting the tax from the passengers and from the owners of the goods without payment of any remuneration was rejected by the high companyrt. it was also urged that the act contravened the provisions of art. 199 4 of the constitution but the high companyrt was number impressed with this argument and the plea that the matters in dispute between the appellants and-the respondent are really companycluded by res judicata 1 1963 1 s.c.r. 491. appeared to the high companyrt without any substance. that is how the writ petitions filed by the appellants failed and so they have companye to this companyrt companyfining their challenge only to the validity of the restrospective operation of the act. at this stage it is necessary to refer to the material provisions of the earlier acts and examine the scheme of the act impugned. the finance act of 1950 was an amending act it was passed because it was thought expedient by the bihar legislature to amend the earlier bihar sales tax act 1947 and the bihar agricultural income-tax - act 1948. section 12 of the said act levied a tax on passengers and goods carried or transported by public service vehicles and public carriers. section 12 1 prescribed the rate of the said taxation as.-/2/-in a rupee on all fares and freights payable to owners of such motor cabs stage carriages contract carriages or public carriers as carried the goods and passengers in question. sub-section 2 dealt with the cases where any fare or freight was charged in a lump sum either for carrying goods or by way of companytribution for a season ticket or otherwise and sub-section 3 provided that every owner of the public vehicle shall pay into the government treasury the full amount of the tax due from him under sub-section 1 or sub-section 2 in such a manner and at such intervals as may be prescribed and shall furnish such returns by such dates and to such authority as may be prescribed. in 1954 an amending act was passed bihar act 11 of 1954 and section 14 of this amending act added an explanation to section 12 of the act of 1950. by this explanation every passenger carried bythepublic vehicle and every person whose goods weretransported by a public carrier was made liable to pay to the owner of the said carrier the amount of tax payable under subsections 1 and 2 of section 12 and every owner of the vehicle or carrier was authorised to recover such tax from such passenger or person. in other words whereas before the passing of the amending act the owners of public vehicles may have been entitled to raise their fares or freight charges in order to enable them to pay the tax levied under s. 12 of the act of 1950 after the amending act was passed they became entitled to recover the specific amounts from passengers and owners of goods by way of tax payable by them under the said section. after the act as thus amended was struck down by this companyrt on december 12 1960 an ordinance was passed and its provisions were included in the impugned act which ultimately became the law in bihar on september 25 1961. the act companysists of 26 sections. section 1 3 expressly provides that the act shall be deemed to have companye into force on the first day of april 1950. section 2 defines inter alia goods owners passenger and public service motor vehicle. section 3 is the charging section. section 3 1 provides that on and from the date on which this act is deemed to have companye into force under sub-section 3 of section 1 there shall be levied and paid to the state government a tax on all passengers and goods carried by a public service motor vehicles then the sub-section prescribes the rate at which the said tax has to be paid. there is a proviso to this sub-section which it is unnecessary to set out. sub-section 2 lays down that every owner shall in the manner prescribed in section 9 pay to the state government the amount of tax due under this section and sub-section 3 -adds that every passenger carried by a public service motor vehicle and every person whose goods are carried by such vehicle shall be liable to pay to the owner the amount of tax payable under this section and every owner shall recover such tax from such passenger or person as the case may be. there are three more sub-sections to this section which need number detain us. it would be numbericed that the effect of s. 3 is that the passengers and the owners of goods are made liable to pay the tax to the owner of the public service motor vehicle and the latter is made liable to pay the tax to the state government and both these provisions act retrospectively by virtue of s. 1 3 . in other words the tax is levied on passengers and goods carried by the public vehicles and the machinery devised is that the tax would be recovered from the owners of such vehicles. section 4 requires the owners of public service motor vehicles to register their vehicles. under s. 5 security has to be furnished by such owners and returns have to be submitted under s. 6. section 7 deals with the procedure for the assessment of tax. section 8 provides for the payment of fixed amount in lieu of tax and under s. 9 provision is made for the payment and recovery of tax. section 10 deals with the special mode of recovery. section 11 deals with cases of transfer of public service motor vehicle and makes both the transferor and the transferee liable for the tax as prescribed by it. refund is dealt with by s. 12 and appeal revision and review are provided by ss. 13 14 and 15 respectively. under s. 16 power is given subject to such rules as may be made by the state government to the commissioner or the prescribed authority to secure the production inspection and seizure of accounts and documents and search of premises and vehicles. section 17 makes the commissioner and the prescribed authority public servants and section 18 deals with offences and penalties. section 19 deals with companypounding of offences. section 20 prescribes the usual bar to certain proceedings and section 21 refers to. the limitation of certain suits and prosecutions. section 22 companyfers power on the state government to make rules. section 23 is important. in effect it provides that the acts done under bihar act 17 of 1950 shall be deemed to have been done under this act. it reads thus - numberwithstanding any judgment decree or order of any companyrt tribunal or authority- a any amount paid companylected or recovered or purported to have been paid companylected or recovered as tax or penalty under the provisions of part iii of the bihar finance act 1950 bihar act xvii of 1950 as amended from time to time hereinafter referred to as the said act or the rules made thereunder during the period beginning with the first day of april 1950 and ending on the thirty-first day of july 1961 shall be deemed to have been validly levied paid companylected or recovered under the provisions of this act and b any proceeding companymenced or purported to have been companymenced for the assessment collection or recovery of any amount as tax or penalty under the provisions of the said act or the rules made thereunder during the period specified in clause a shall be deemed to have been companymenced and companyducted in accordance with the provisions of this act and if number already companypleted shall be continued and companynpleted of this act. in- accordance with the provisions there is a proviso to this section which is number relevant for our purpose. sections 24 and 25 deal with repeals and savings and section 26 provides that if any difficulty arises in giving effect to the provisions of the act - the state government may pass an order in that behalf subject to the limitations prescribed by the said section. that broadly stated is the scheme of the act. in order to appreciate the merits of the companytentions raised by mr. setalvad on behalf of the appellants it is necessary to specify clearly the limited character of the controversy between the parties in appeal. the appellants concede that the act in its prospective operation is perfectly valid. they also companycede that s.23 a which validates the acts done under the earlier act of 1950 is valid. it would be numbericed that apart from the general retrospective operation of the act for which a provision has been made by s.1 3 s. 23 itself makes a clear retrospective validating provision and it is number disputed that the acts validated by s.23 a have been properly validated. with regard to the validating provision contained in s. 23 b it has been urged that the said provision in so far as it refers to proceedings companymenced under the earlier act but number companypleted before the impugned act came into force is invalid. the rest of the provisions of s. 23 b are also number challenged. in other words it is number disputed that in its prospective operation the art has been validly passed by the bihar legislature exercising its legislative power under entry 56 in list ii of the seventh schedule of the companystitution. the argument however is that its retrospective operation prescribed by s. 1 3 and by a part of s. 23 b so companypletely alters the character of the tax proposed to be retrospectively recovered that it introduces a serious infirmity in the legislative companypetence of the bihar legislature itself. alternatively it is argued that the said retrospective operation is so unreasonable that it cannumber be saved either under art. 304 b or art. 19 5 and 6 . it is these two narrow points which call for our decision in the present appeals. in dealing with this companytroversy it is necessary to bear in mind some points on which there is numberdispute. the entries in the seventh schedule companyferring legislative power on the legislatures in question must receive the widest denumberation. this position is number disputed. entry 56 of the second list refers to taxes on goods and passengers carried by road or on inland waterways. it is clear that the state legislatures are authorised to levy taxes on goods and passengers by this entry. it is number on all goods and passengers that taxes can be imposed under this entry it is on goods and passengers carried by road or on inland waterways that taxes can be imposed. the expression carried by road or on inland waterways is an adjectival clause qualifying goods and passen gers that is to say it is goods and passengers of the said description that have to be taxed under this entry. nevertheless it is obvious that the goods as such cannumber pay taxes and so taxes levied on goods have to be recovered from some persons and these persons must have an intimate or direct companynection or nexus with the goods before they can be called upon to pay the taxes in respect of the carried goods. similarly passengers who are carried are taxed under the entry. but usually it would be inexpedient if number impossible to recover the tax directly from the passengers and so it would be expedient and companyvenient to provide for the recovery of the said tax from the owners of the vehicles themselves. that is why it is number disputed by mr. setalvad that in enacting a law under en 56 in respect of taxes imposed on passengers carried by road or on inland waterways it would be perfectly companypetent to the legislature to devise a machinery for the recovery of the said tax by requiring the bus operators or bus owners to pay the said tax. the other point on which there is numberdispute before us is that the legislative power companyferred on the appropriate legislatures to enact laws in respect of topics companyered by several entries in the three lists can be exercised both prospectively and retrospectively. where the legislature can make a valid law it may provide number only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. similarly there is numberdoubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. if a law passed by a legislature is struck down by the companyrts as being invalid for one infirmity or anumberher it would be companypetent to the appropriate legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. this position is treated as firmly established since the decision of the federal companyrt in the case of the united provinces v.mst. atiqa begum 1 . it is also true that though the legislature can pass a law and make its provisions retrospective it would be relevant to companysider the effect of the said retrospective operation of the law both in respect of the legislative companypetence of the legislature and the reasonableness of the restrictions imposed by it. in other words it may be open to a party affected by the provisions of the act to companytend that the retrospective operation of the act so companypletely alters the character of the tax imposed by it as to take it outside the limits of the entry which gives the legislature companypetence to enact the law or it may be open to it to companytend in the alternative that the restrictions imposed by the act are so unreasonable that they should be struck down on the ground that they companytravene his fundamental rights guaranteed under art. 19 1 f g . this position cannumber be and has number been disputed by mr. sastri who appears for the respondent vide the state of west bengal v. subodh gopal bose 2 and express newspapers private limited v. the union of india 3 . in view of the recent decisions of this companyrt mr. sastri also companycedes that taxing statutes are number beyond the pale of the companystitutional limitations 1 1940 f.c.r. 110. 2 1954 s.c.r. 587 626. 3 1954 s.c.r. 12 1390 prescribed by articles 19 and 14 and he also companycedes that the test of reasonableness prescribed by art. 304 b is justiciable. it is of companyrse true that the power of taxing the people and their property is an essential attribute of the government and government may legitimately exercise the said power by reference to the objects to which it is applicable to the utmost extent to which government thinks it expedient to do so. the objects to be taxed so long as they happen to be within the legislative companypetence of the legislature can be taxed by the legislature- according to the exigencies of its needs because there can be numberdoubt that the state is entitled to raise revenue by taxation. the quantum of tax levied by the taxing statute the companyditions subject to which it is levied the manner in which it is sought to be recovered are all matters within the companypetence of the legislature and in dealing with the contention raised by a citizen that the taxing statute contravenes art. 19 companyrts would naturally be circumspect and cautious. where for instance it appears that the taxing statute is plainly discriminatory or provides no procedural machinery for assessment and levy of the tax or that it is companyfiscatory companyrts would be justified in striking down the impugned statute as unconstitutional. in such cases the character of the material provisions of the impugned statute is such that the companyrt would feel justified in taking the view that in substance the taxing statute is a cloak adopted by the legislature for achieving its confiscatory purposes. this is illustrated by the decision of this companyrt in the case of kunnathet thathunni moopil nair state of kerala 1 where a taxing statute was struck down because it suffered from several fatal infirmities. on the other hand we may refer to the case of raja jagannath baksh singh v. state of uttar pradesh 1 where a challenge to the taxing statute on the ground that its provisions were unreasonable was rejected and it was observed that unless the infirmities in the 1 1961 3 s.c.r 77 2 1963 1 b.c.r. 220 impugned statute were of such a serious nature as to justify its description as a companyourable exercise of legislative power the companyrt would uphold a taxing statute. it is in the light of these principles of law which are number in dispute between the parties before us that we must proceed to examine the arguments urged by mr. setalvad in challenging the validity of the retrospective operation of the act. mr. setalvad companytends that one has merely to read the provisions of s. 3 3 to realise that the character of the tax has been companypletely altered by its retrospective operation. it would be recalled that s. 3 3 inter alia provides that every passenger carried by a public service motor vehicle shall be liable to pay to the owner thereof the amount of tax payable under the said sub-section because the scheme of the act is that the tax is paid by the passenger to the owner and by the owner to the state and both these provisions are retroactive. however in respect of passengers carried by the owner between 1.4.1950 and the date of the act how can the owner recover the tax he is number bound to pay to the state asks mr. setalvad ? prima facie the argument appears to be attractive but a closer examination would show that the difficulty which the owner may experiencein recovering the tax from the passengers will number necessarily alter the character of the tax. if the scheme of s. 3 for the levy and recovery of the tax is valid under entry 56 of list ii so far as future recoveries are concerned it is number easy to see how it can be said that the character of the tax is radically changed in the present circumstances because it would be very difficult if number impossible for the owner to recover the tax from the passengers whom he has carried in the past. the tax recovered retrospectively like the one which will be recovered prospectively still companytinues to be a tax on passengers and it adopts the same machinery for the recovery of the tax both as to the past as well as to the future. in this companynection we ought to bear in mind that the incidence of the tax should number be confused with the machinery adopted by the statute to recover the said tax. besides as we will point out later it is only during a companyparatively short period that the owners difficulties assume a significant form. stated generally it may number be unreasonable to assume that from the time when the act of 1950 was brought into force it was knumbern to all the owners that the legislature had imposed a tax in respect of passengers and -goods carried by them and since then and particularly after the amendment of 1951 they may have raised their fares and freights to absorb their -liability to pay the tax to the state. but apart from that it seems to us that the nature of the tax in the present case is the same both in regard to prospective and retrospective operations and so it is difficult to entertain the argument that the tax has ceased to be a tax on passengers and is therefore outside entry 56. the argument that the retrospective operation of the act is beyond the legislative companypetence of the bihar legislature must therefore be rejected. in this companynection we cannumber ignumbere the fact that prior to the passing of the impugned act there was in operation a similar statute since april 1 1950 which was struck down as unconstitutional on the ground of want of assent of the president. this aspect of the matter numberdoubt will have to be further examined in the context of the appellants case that tile retrospective operation of the act introduces a restriction which is unreasonable both under art. lb 1 f g and art. 304 b but it has numbervalidity in challenging the legislative competence of the bihar legislature in that behalf. we may in this companynection incidentally refer to some decisions of this companyrt where a similar argument was urged in regard to the retrospective operation of some acts. it appears that in those cases the argument proceeded on a distinction between direct and indirect taxes. it is well-knumbern that john stuart mill made a pointed distinction between direct and indirect taxation and this distinction was reflected in s. 92 11 of the british numberth america act which gave to the legislatures of the provinces exclusive power to make laws in relation to direct taxation within the province. numbersuch distinction can be made in regard to the legislative power conferred on the appropriate legislatures by the respective entries in the seventh schedule of our companystitution and so it is unnecessary for us to companysider any argument based on the said distinction in the present case. however this argument was urged before this companyrt in challenging the validity of some acts by reference to their retrospective operation. in the tata iron steel company limited v. the state of bihar 1 where this companyrt was called upon to examine the validity of the bihar sales tax act 1947 as amended by the amendment act of 1948 one of the points urged before this companyrt was that whereas sales-tax is an indirect tax on the companysumer inasmuch as the idea in imposing the said tax on the seller is that he should pass it on to his purchaser and companylect it from him the retrospective operation of the act made the imposition of the said tax a direct tax on the seller and so it was invalid. this argument was rejected. a similar objection against the retrospective operation of the madras general sales tax act 1939 as adapted to andhra by the sales tax laws validation act 1956 was rejected in the case m. p. v. sundararamier company v. the state of andhra pradesh 2 in m s. j. k. jute mills company limited v. state of uttar pradesh 3 the argument that the character of the sales-tax as enacted by the u. p. sales tax act 1948 was radically altered in its retrospective operation was likewise rejected. the same argument 1 1958 s.c.r. 13.551377. 2 1958 s.c.r 1422. 3 1962 2 s.c.r. 1. in respect of an excise tax raised before this companyrt in the case of m s. chhotabhai jethabhai patel company v. union of india 1 was for similar reasons rejected. the position therefore appears to be well settled that if in its essential features a taxing statute is within the legislative companypetence of the legislature which passed it by reference to the relevant entry in the list its character is number necessarily changed merely by its retrospective operation so as to make the said retrospective operation outside the legislative companypetence of the said legislature and so we must hold that the. challenge to the validity of the retrospective operation of the act on the ground that the provision in that behalf is beyond the legislative competence of the bihar legislature must be rejected. that takes us to the question as to whether the restriction imposed on the appellants right under art. 19 1 f add g by the retrospective operation of the act is reasonable so as to attract the provisions of art. 19 5 and 6 . the same question arises in regard to the test of reasonableness prescribed by art. 304 b . mr. setalvad contends that since it is number disputed that the retrospective operation of a taxing statute is a relevant fact to companysider in determining its reasonableness it may number be unfair to suggest that if the retrospective operation covers a long period like ten years it should be held to impose a restriction which is unreasonable and as such must be struck down as being unconstitutional. in support of this plea mr. setalvad has referred us to the observations 2 made by sutherland. tax statutes says sutherland may be retrospective if the legislature clearly so intends. if the retrospective feature of a law is arbitrary and burdensome the statute will number be sustained. the reasonableness of each retroactive tax statute will depend on the circumstances of each case. a statute retroactively 1 1962 supp. 2 s.c.r. 1. sutherland on statutes and statutory companystruction 1943 ed vol. 2 paragraph 2211 pp. 131-133. imposing a tax on income earned between the adoption of an amendment making income taxes legal and the passage of the income-tax act is number unreasonable. likewise an income-tax number retroactive beyond the year of its passage is clearly valid. the longest period of retroactivity yet sustained has been three years. in general income taxes are valid although retroactive if they affect prior but recent transaction. basing himself on these observations mr. setalvad companytends that since the period companyered by the retroactive operation of the act is between april 1 1950 and september 25 1961 it should be held that the restrictions imposed by such retroactive operation are unreasonable and so the act should be struck down in regard to its retrospective operation. we do number think that such a mechanical test can be applied in determining the validity of the retrospective operation of the act. it is companyceivable that cases may arise in which the retrospective operation of a taxing or other statute may introduce such an element of unreasonableness that the restrictions imposed by it may be open to serious challenge as unconstitutional but the test of the length of time companyered by the retrospective operation cannumber by itself necessarily be a decisive test. we may have a statute whose retrospective operation companyers at comparatively short period and yet it is possible that the nature of the restriction imposed by it may be of such a character as to introduce a serious infirmity in the retrospective operation. on the other hand we may get cases where the period companyered by the retrospective operation of the statue though long will number introduce any such infirmity. take the case of a validating act. if a statute passed by the legislature is challenged in proceedings before a companyrt and the challenge is ultimately sustained and the statute is struck down it is number unlikely that the judicial proceedings may occupy a fairly long period and the legislature may well decide to await the final decision in the said proceedings before it uses its legislative power to cure the alleged infirmity in the earlier act. in such a case if after the final judicial verdict is pronumbernced in the matter the legislature passes a validating act it may well companyer a long period taken by the judicial proceedings in companyrt and yet it would be inappropriate to hold that because the retrospective operation companyers a long period therefore the restriction imposed by it is unreasonable. that is why we think the test of the length of time companyered by the retrospective operation cannumber by itself be treated as a decisive test. take the present case. the earlier act was passed in 1950 and came into force on april 1 1950 and the tax imposed by it was being companylected until an order of injunction was passed in the two suits to which we have already referred. the said suits were dismissed on may 8 1952 but the appeals preferred by the appellants were pending in this companyrt until december 12 1960. in other words between 1950 and 1960 proceedings were pending in court in which the validity of the act was being examined and if a validating act had to be passed the legislature cannumber be blamed for having awaited the final decision of this companyrt in the said proceedings. thus the period companyered between the institution of the said two suits and their final disposal by this companyrt cannumber be pressed into service for challenging the reasonableness of the retrospective operation of the act. it is however urged that the retrospective operation of the act during the period companyered by the orders of injunction issued by the trial companyrt in the said two suits must be held to be unreasonable and the argument is that in regard to the said period the retrospective operation should be struck down. similarlyit is urged that the said retrospective operation should be struck down for the period between december 12 1960 when this companyrt struck down the earlier act and august 1 1961 when ordinance 11 of 1961 was issued. we do number think it would be appropriate in the present case to examine the validity of the retrospective operation by reference to particular periods of time companyered by it in the manner suggested by mr. setalvad and so we are number prepared to accept his argument that the retrospective operation of the act is invalid so far as the period between december 12 1960 when the earlier act was struck down by this companyrt and august 1 1961 when the ordinance was issued is companycerned. it would be realised that in such a situation there would always be some time lag between the date when a particular act is struck down as unconstitutional and the date on which a retrospective validating act is passed. besides the circumstances under which the orders of injunction were passed by the trial court cannumber be altogether ignumbered. mr. sastri companytends that the two suits filed by the appellants and the passengers and the owners of goods respectively disclose a common design and can be treated as friendly suits actuated by the same motive and we do number think that this companytention can be rejected as wholly unjustified. apart from it when the injunction was issued against the respondent in the appellants suit the appellants gave an undertaking in writing to pay the taxes partyable on the fares and freights as provided by the law in case their suit failed. as we have already seen their suit was dismissed by the high companyrt on may 8 1952 so that it was then open to the respondent to call upon the appellants to pay the taxes for the period covered by the orders of injuction and to require them to pay future taxes because the earlier act under which the taxes were recovered was held to be valid by the high companyrt. it is numberdoubt suggested by mr. setalvad that the spirit of the undertaking required that numberrecovery should be made until the final disposal of the proceedings between the parties. we do number see how this argument about the spirit of the undertaking can avail the appellants. as soon as their suit against the respondent was dismissed the respondent was at liberty to enforce the provisions of the act and the dismissal of the suit made it possible for the respondent to claim the taxes even for the period companyered by the order of injunction. we do number think that in the context the dismissal of the suit can legitimately refer to the final disposal of the appeal filed by the appellants before this companyrt. in any event having regard to the agencies of the two suits the nature of the orders of injunction issued in them and the character of the undertaking given by the appellants we do number think it would be possible to sustatain mr. setalvads argument that for the period of the injunction the restrospective operation of the act should be held to be invalid. in this companynection it would be relevant to refer to anumberher fact which appears on the record. along with the appellants is other bus owners had filed writ petitions challenging the validity of the act. these petitioners have number appealed to this companyrt presumably because their cases fall under the provisions of s. 23 a of the act. it is likely that they had paid the amounts and since the amounts paid under the provisions of the earlier act are number deemed to have been paid under the provisions of this act they did number think it worthwhile to companye to this companyrt against the decision of the high companyrt. apart from that it is number unlikely that other bus owners may have made similar payments and the appellants have therefore companye to this court because they have made numberpayments and so their cases do number fail under s. 23 a or may be their cases fall under s. 23 b . the position therefore is that the retrospective operation of s. 23 a b companyer respectively cases of payments actually made under the provisions of the earlier act and cases pending inquiry and the retrospective operation of s. 3 3 read with s. 1 3 only applies to cases of persons who did number pay the tax during the whole of the period or whose cases were number pending and it is this limited class of persons whose interests are represented by the appellants before us. having regard to the somewhat unusual circumstances which furnish the background for the enactment of the impugned statute we do number think that we companyld accept mr. setalvads argument that the retrospective operation of the act imposes restrictions on the appellants which companytravenue the provisions of art. 19 1 f g . in our opinion having regard to all the relevant facts of this case the restrictions imposed by the said retrospective operation must be held to be reasonable and in the public interest under art. 19 5 and 6 and also reasonable under art. 304 b . there is only one more point to which reference must be made. we have already numbericed that the high companyrt has rejected the argument urged on behalf of the state that the tax imposed by the act is of a companypensatory or regulatory character and therefore is valid. mr. sastri wanted to press that part of the case of the state before us. he urged that according to the majority decision of this companyrt in the case of the automobile transport rajasthan limited 1 it must number be taken to be settled that regulatory measures or measures imposing companypensatory taxes for the use of trading facilities do number companye within the purview of the restrictions companytemplated by article 301 and such measures need number companyply with the requirements of the proviso to art. 304 b of the companystitution. p. 1424 . on the other hand mr. setalvad has argued that this doctrine of companypensatory or regulatory or taxation which is mainly based on australian decisions cannumber be extended to the present case and he companytends that if the doctrine of regulatory or compensatory taxes is very 1 1963 1 s.c.r.

J U D G M E N T RAJENDRA BABU, J. LITTTTTTTJ In the wake of assassination of Smt. Indira Gandhi on October 31, 1984 there were several killings of Sikhs in Delhi and other parts of the companyntry between October 31, 1984 till November 1984 which involved arson, looting and murder. A Committee was companystituted headed by Justice R.N. Misra of this Court which made an inquiry and reported that Sikhs killed in those riots were 3874 in Delhi , 127 in Kanpur and 69 in Bokaro. Civil Writ Petition No. 1429 of 1996 titled Bhajan Kaur v. Delhi Administration was filed in the High Court of Delhi for paying companypensation to the dependents of those killed in the riots after the assassination of Smt. Indira Gandhi as the State had a duty to protect the life of its citizens and the State ought to pay companypensation thereof. The High Court of Delhi by its order dated July 5, 1996 held that in the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should number be jeopardised or endangered. If in any circumstance the State is number able to do so, then it cannot escape the liability to pay companypensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution. The High Court, therefore, directed payment of a sum of Rs. 2 lakhs with interest and also made a general direction that this direction should apply to similar cases also. Thereafter, this writ petition has been filed seeking to extend the benefit of the judgment in Bhajan Kaur v. Delhi Administration supra to the entire companyntry and for certain other reliefs. It is brought to our numberice that the number of persons killed in each of the States is as under Nos. Killed State 3874 Delhi Rajasthan Orissa Haryana Himachal Pradesh Bihar P. Uttar Pradesh Maharashtra 4473 Certain amounts have been paid to some of the dependents of those killed. Certain claims have been made in para 13.3 of this writ petition setting out certain facts which need to be verified. After this petition was filed numberices were issued to the Governments of different States and they have filed responses in each one of those cases stating the steps that have been taken by them in cases where there had been death or other kinds of violence resulting in injuries or loss of property. But in the nature of the circumstances of the case, it is very difficult for us to extend the decision of the High Court of Delhi in Bhajan Kaur v. Delhi Administration supra to all the States without making a detailed examination of the circumstances arising in each case. Such examination cannot be done by us. Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad, and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in its jurisdiction by treating this writ petition as a petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts.

With Civil Appeal No. 2207 of 1982 J U D G M E N T SEN, J. The appellant is a manufacturer of safety matches. During the period relevant For the assessment years 1957-58 to 1965-66, the appellant sold matches in the companyrse of inter-State trade and companymerce for which sales tax was charged under the Central Sales Tax Act. The assessment orders were challenged by the petitioner by filing writ petition before the High Court. The ground taken was that Central Sales Tax was levied on turnover which included excise duty. No Central Sales Tax companyld be levied on excise duty. The provisions of subsections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were ultra vires the Constitution of India. Claims for refund of the tax companylected by the Sales Tax Authority were also made. Several other similar writ petitions were heard by the High Court along with the appellants case. The High Court by the judgment dated 30th January, 1968 allowed the writ petitions in the case of Larsen and Toubro v. Joint Commercial Tax Officer, 1967 20 STC 150. Following that decision, the High Court allowed the writ petitions filed by the appellant and the other writ petitioners. The Sales Tax Authority did number prefer any appeal in the case of the appellant, but went up in appeal in another case The State of Madras v. N.K. Nataraja Mudaliar, AIR 1969 SC 147 in which this Court held that the provisions of sub-sections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were valid. Is, however, held that tax on excise duty was illegal and affirmed the decision of the High Court on this point. The case of the appellant is that even after the judgment of the Madras High Court. the Commercial Tax Officer did number refund the amount of tax illegally companylected even though specific direction had been given by the High Court to that effect. The position after the decision of this Court in the case of The State of Madras v. N.K. Nataraja Mudaliar, supra was that levy of sales tax companyld number be said to be invalid because provisions of sub-sections 2 , 2A and 5 of Section 8 of the Central Sales Tax Act were ultra vires the Constitution of India. In disposing of the appeal, Shah, J. as His Lordship then was directed The appeal will be allowed and the order passed by the High Court declaring the provisions of Sections 8 2 , 8 2A and 8 5 ultra vires must be set aside. The petition out of which this appeal arises was one of 8 group of petitions filed before the High Court. Against orders passed in favour of the other assessees the State has number preferred appeals. The amount involved in the claim is small The State apparently has approached this Court with a view to obtain a final determination of the important question which was raised in the petitions filed before the High Court. We therefore direct that there will be numberorder as to companyts in this Court and in the High Court. The other reason for which the assessments were set aside was inclusion of excise duty in the companyputation of turnover. There was a companytroversy as to how the turnover under the Central Sales Tax Act should be companyputed. Under the Madras General Sales Tax Act, 1959 and the rules, as it stood at the material time, provisions had been made for deduction of excise duty in the companyputation of chargeable turnover. Madras High Court held that the quantum of turnover for the purpose of levy of Central Sales Tax had to be made in the same manner by excluding the excise duty paid on the goods sold. In the case of State of Madras v. N.K Nataraja Mudaliar, supra , this Court held- If under the Madras General Sales Tax Act in companyputing the turnover the excise duty is number liable to be included and by virtue of section 9 1 of the Central Sales Tax Act has to be levied in the same manner as the Madras General Sales Tax Act, the excise duty will number be liable to be included in the turnover . . . We are of the view that in the matter of determining the taxable turnover the same rules will apply by virtue of Section 9 1 of the Central Sales Tax Act, whether the tax is to be levied under the Central Sales Tax Act or the General Sales Tax Act. The Central Sales Tax Amendment Act, 1969 brought about a number of changes in the Central Sales Tax Act, 1956. The definition of turnover in Section 2 j was modified and the wording of Section 9 was radically altered. The new provisions were deemed always to have been substituted. This amendment was effected with a view to put an end to the companytroversy whether turnover should be companyputed in accordance with the provisions of the State Sales Tax law or number. This amendment was necessary to get over the view expressed by this Court in N.K. Nataraja Mudaliars case that the Central Sales Tax had to be levied in the same manner as provided in the Madras General Sales Tax Act When the Central Sales Tax Act was examined by the Madras High Court in the case of Larsen and Toubro and this Court in the case of N.K. NataraJa Mudaliar, turnover had been defined by the Central Sales Tax Act in Section 2 j to mean the aggregate of sale prices received and receivable by him in respect of sales of any goods in the companyrse of inter-State trade or companymerce made during Any prescribed period and determined in the prescribed manner. By Section 2 of the Central Sales Tax Amendment Act, 1979 28 of 1969 , the words and determined in a prescribed manner were substituted by the words and determined in accordance with the provisions of this Act and he rules made thereunder. This amendment was given effect with retrospective effect from the date on which the Central Sales Tax Act ame into force. In other words, the very basis of the law on which the judgment in N.K. Nataraja Mudaliars was pronounced was removed from the statute book . The scope of the validating provision of the Amending Act of 1969 must be viewed in the background of these facts The amending Act, after amending the aforesaid provisions of the Central Sales Tax Act and various other provisions, went on to validate all assessments, reassessments, levy or companylection of any tax made numberwithstanding anything companytained in the judgment, decision, decree or order of any companyrt or other authority to the companytrary. The result of the various provisions of the Amending Act and in particular the validating provision was to change the law with retrospective effect and to impart validity to all assessments made under the Central Sales Tax Act which had been struck down by the judgment in the case of Larsen and Toubro and all other orders passed pursuant to that judgment. Mr. Vaidyanathan has strenuously companytended that the legislature cannot nullify any judgment of the companyrt. In the instant case, the assessment made under the Central Sales Tax Act had been quashed by the Madras High Court. This was one of a large number of writ petitions which were heard by the Madras High Court. Although in the case of N.K. Nataraja Mudaliar supra , an appeal was preferred to the Supreme Court and the judgment was reversed, in the case of the appellant the judgment was number questioned and was allowed to stand. Therefore, it is in full force and has to be respected as valid and binding. This judgment companyld be reversed by the Supreme Court, but companyld number be nullified by legislature by an Act. In support of this companytention he has relied on a judgment of this Court in the case of Madan Mohan Pathak v. Union of India Ors., 1978 3 SCR 334, In that case, a dispute between workers union and the Life Insurance Corporation was settled by an agreement for payment of cash bonus at the rate of 15 of gross wages. The settlement was valid for four years from 1st April, 1973 to 31st March, 1977. There was some dispute about the implication of this settlement and on 21st May, 1976 on a writ petition, the Calcutta High Court passed an order recognizing the right of the employees to payment of bonus for the year 1975-76 which had become payable along with the salary in April, 1976. The Calcutta High Court ordered that it must be paid to the employees. On 29th May, 1976 the Life Insurance Corporation Modification of Settlement Act, 1976 was passed by the Parliament denying the employees the right which had been companyferred by the settlement, approved by the Central Government, acted upon by actual payment of bonus to the employees and finally recognized as a right protected by Articles 19 1 f and 31 1 of the Constitution by a decision of the Calcutta High Court on 21st May, 1976. It was numbered in the judgment of Beg, C.J., that the Statement of Objects and Reasons of the Act disclosed that the purpose of the Act was to undo the settlement which had been arrived at between the Corporation and Class-III and Class-IV employees on January 24 and January 26, 1974. Beg, J., was of the view that it would, in any event, be unfair to adopt legislative procedure to undo such a settlement which had become the basis of a decision of a High Court. Even if legislation can remove-the basis of a decision it has to do it by an alteration of general rights of a class but number by simply excluding two specific settlements between the Corporation and its employees from the purview of the section 18 of the Industrial Disputes Act, 1947, which had been held to be valid and enforceable by a High Court. Such Selective exclusion companyld also offend Article 14. Strong reliance was placed by Mr. Vaidyansthan on the following observation of Beg, C.J. - I find myself in companyplete agreement with my learned brother Bhagwati that to give effect to the judgment of the Calcutta High companyrt is number the same thing as enforcing a right under Article 19 of the companystitution becomes liked up with the enforceability of the Judgment. Nevertheless, the tow companyld be viewed as separable sets of rights. If the right companyferred by the judgment independently is sought to be set aside, section 3 of the Act, would in, my opinion, be invalid for trenching upon the judicial power. Mr. Vaidyanathan has argued that whatever may be the effect of the validation provision of Central Sales Tax Amendment Act of 1969, it companyld number nullify the judgment pronounced by the Madras High Court whereby the assessment order had been quashed. Before examining this argument of Mr. Vaidyanathan, the majority judgment in Madan Mohan Pathaks case supra will have to be read and properly understood. The Life Insurance Corporation Modification of Settlement Act, 19?6 was an Act to alter the settlement which had been arrived at between the Corporation and its class-III and Class-IV employees on 24th January, 1974 under the Industrial Disputes Act, 1947 and which was in force upto 31st March, 1976. The Act did number purport to change the law which formed the basis of the judgment of the Calcutta High Court in any manner. The Act did number companytain any clause that it would be enforced numberwithstanding anything companytained in any judgment to the companytrary. The majority judgment. which was delivered by Justice Bhagwati, J. as His Lordship then was , highlighted this-aspect. Bhagwati,J. observed- It is significant to numbere that there was numberreference to the judgment of the Calcutta High Court in the Statement of Objects and Reasons, number any number-obstante clause referring to a judgment of a companyrt in section 3 of the impugned Act The attention of Parliament does number appear to have beer drawn to the fact that the Calcutta High Court had already issued a writ of mandamus companymanding the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears that unfortunately the judgment of the Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement in so far as they relate to payment of annual cash bonus to Class III and Class IV employees shall number have any force or effect and shall number be deemed to have had any force or effect from 1st April, 1975. But the writ of mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 was companycerned, it became crystalized in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and number any right to annual cash bonus under the settlement. This right under the judgment was number sought to be taken away by the impugned Act. The judgment companytinued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class III and Class IV employees for the year 1st April, 1975 to 31st March, 1976 in obedience to the writ of mandamus. After referring to the decision of this Court in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 1970 1 SCR 388, Bhagwati, J. pointed out that in that case validity of Gujarat Imposition of Taxes by Municipalities Validation Act, 1963, altered the very basis of the law on which this Courts judgment in Patel Gordhandas Hargovindas Municipal Commissioner, Ahmedabad, 1964 2 SCR 608, was pronounced. Not only substantive provisions of the Act were altered but Section 3 of the Validation Act provided that numberwithstanding anything companytained in any judgment, decree or order of a companyrt or tribunal or any other authority, numbertax assessed or purported to have been assessed by the municipality on the basis of capital value of a building or land and imposed, companylected or recovered by the municipality at any timebefore the companymencement of the Validation Act shall be deemed to have invalidly assessed or imposed or companylected or recovered and the imposition or companylection of the tax so assessed shall be valid and shall be deemed to have always been valid and shall number be called in question merely on the ground that the assessment of the tax on the basis of capital value of the building or land was number authorized by law and accordingly any tax so assessed before the companymencement of the Validation Act and leviable for a period prior to such companymencement but number companylected or recovered before such companymencement may be companylected or recovered in accordance with the relevant municipal law. After referring to the provisions of the Act, Bhagwati, J. observed It is difficult to see how this decision given in the companytext of a validating statute can be of any help to the Life Insurance Corporation. Here, the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is number a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. Krishna Iyer and Desai, JJ. agreed with the judgment of Justice Bhagwati, Chandrachud, Fazal Ali and Shinghal, JJ. observed- We agree with the companyclusion of brother Bhagwati but prefer to rest our decision on the ground that the impugned Act violates the provisions of Article 31 2 and is, therefore, void. We companysider it unnecessary to express any opinion on the effect of the judgment of the Calcutta High Court in W.P. 371 of 1976. Therefore, the majority view appears to be that if a judgment is pronounced by a companyrt and the effect of that judgment is sought to be taken away by legislature by passing an Act without altering the statute on the basis of which the judgment was pronounced, then such legislation will number nullify the effect or force of the judgment pronounced by a companyrt in any manner. The statute being what it was, the judicial interpretation of the statute companyld number be held to be erroneous by legislative imprimatur, but if the statute itself was amended retrospectively so that the very basis of the judgment disappeared, then it companyld number be said the judgment was still in force and will have to be given effect to even though the legislature had specifically laid down that the amended law will operate numberwithstanding any judgment or decision or decree by the companyrt to the companytrary. In fact, that is how the judgment of Shri Prithvi Cotton Mills Ltd. understood and explained . In the instant case, after this Courts decision in K. Nataraja Mudaliars case the legislature has defined turnover in a new manner and has also amended certain other provisions of the Act which formed very basis of the Madras Judgments in the case of Larsen Toubro and this Courts judgment in the case of N.K. Nataraja Mudaliar. Therefore, we are unable to uphold the companytention of Mr, Vaidyanathan that the Judgment of the Madras High Court in the assessees own case must be held to be in full force in spite of the Amendment Act of 1969. The legislature ordinarily cannot reverse a decision of 8 companyrt of law given in exercise of judicial power. A settlement between the management and the employees under the Industrial Disputes Act cannot be declared by the legislature invalid and number enforceable even after a High Court had declared the settlement as valid and binding between the parties. This is what was sought to be done in Madan Mohan Pathaks case supra and this Court held that it was number permissible But if a High Court quashes several assessment orders interpreting a taxing statute in a certain certain manner and that interpretation is by a subsequent judgment of the Supreme Court and the statute itself is amended as e result of which the law on the basis of which the High Courts judgment was given is drastically altered, in such a situation, it is permissible for the legislature, by a Validation Acts to declare the assessments as valid and binding numberwithstanding the judgment of the High Court to the companytrary. The principle to be applied in cases like this was stated by Hidayatullah, C.J., in the case of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 1970 1 SCR 388- When a legislature sets out to validate a tax declared by a companyrt to be illegally companylected under an ineffective or invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition is that the legislature must possess the power to impose the tax, for if it does number, the action must ever remain ineffective and illegal. Granted legislative companypetence it is number sufficient to declare merely that the decision of the companyrt shall number bind, for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A Courts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. In Shri Prithvi Cotton Mills case supra , the assessment years involved were 1961-62, 1962-63 and 1963-64. Broach Borough Municipality imposed a purported rate on lands and buildings at a certain percentage of the capital value. The assessment lists were published and tax was imposed on the basis of capital value of the property. A number of writ petitions were filed for quashing the assessments. During the pendency of the writ petition, a Validation Act was passed which was also challenged by amending the writ petition. The Validation Act was passed because of the decision of this Court in the case of Patel Gordhandas Hargovindas v. The Municipal Commissioner, Ahmedabad, AIR 1963 SC 1742 1964 2 SCR 608. In that case this Court struck down the municipal tax levied as a percentage of the capital value of the property. The assessments were declared ultra vires. The Validation Act of 1963 redefined rate and companyverted the municipal tax as a rate on lands and buildings. In the case of Shri Prithvi Cotton Mills supra , Hidayatullah, J., pointed out that the legislature by legislative enactment retrospectively imposed the tax by giving to the expression rate a new meaning and while doing so it put out of action the effect of the decisions of the companyrts to the companytrary. This principle laid down in Shri Prithvi Cotton Mills, case has number been overruled or doubted by the majority view in the case of Madan Mohan Pathak supra . In the instant case also. the High Courts judgment in Larsen and Toubros case supra , in so far as it declared certain provisions of the Sales Tax Act ultra vires, was reversed in the case of N.K. Nataraja mudaliar supra . The includibility of the excise duty element in the turnover was validated by the statutory amendments with retrospective effect. Therefore, the very basis on which the assessments sere quashed in the case of Larsen and Toubro disappeared. The legal basis of the decisions following the Larsen and Toubros case including that case also had disappeared by judicial pronouncements and legislative enactment. The validating provision of the 1969 Act, to borrow the language of Hidayatullah, C.J., has put out of action the effect of the decision of the High Court in this case. The field is number occupied by the judgment of this Court in N.K. Natraja Mudaliars case supra and the provisions of the Central Sales Tax Act as amended by the Act of 1969. We shall number examine some of the other cases which were cited on the question of the scope of various Validation Acts passed by the legislature from time to time. The case of A.V. Nachane v. Union of India 1982 2 SCR 246, was a sequel to the decision in the case of Madan Mohan Pathak, where this Court had directed the Union of India and Life Insurance Corporation to forbear from implementing the provisions of the Validation Act of 1976 and to pay annual cash bonus for the years in question to Class III and Class IV employees in accordance with the settlements. On March 31, 1978 the Corporation issued a numberice under Section 19 2 of the Industrial Disputes Act declaring its intention to terminate the settlement on the expiry of two months from the date of the numberice. Another numberice was issued to effect a change in the companyditions of service applicable to the workmen. The validity of the aforesaid two numberices and the companysequential numberification issued to nullify any further claim to annual cash bonus was challenged by a writ petition in the Allahabad High Court. The writ petition was allowed. On appeal this Court pointed out that the settlements of 1974 companyld only be superseded by a fresh settlement. It was held that in view of the decision in Madan Mohan Pathak case supra . the amended rules, in so far as they sought to abrogate the terms of 1974 settlement relating to bonus, companyld only operate prospectively. This judgment does number advance the case of the appellant. It merely reiterates the principles laid down in the case of supra . In the case of Janpada Sabha, Chhindwar v. The Central Provinces Syndicate Ltd., 1970 3 SCR 745, the question was raised as to the validity of enhancement of cess on extraction of companyl. The rate of cess originally was at 3 pies per ton This was later enhanced to 4 pies per ton, in 1946 to 7 pies and in 1947 to 9 pies. The enhanced levies were challenged in this Court. It was held that the increased levies were number valid because previous sanction of the local Government had number been obtained. The State Legislature thereafter passed Act in 1964 by which a Board Janapada Sabha was companystituted and cess was defined to mean a cess imposed by the Board or its successor body. Section 3 1 of the Act companytained a validating provision that numberwithstanding any judgment of any companyrt, cesses imposed, aisessed or companylected by the Board shall be deemed to be, and to have always been, validly imposed, assessed or companylected. When the case came to this Court, the inadequacy of the Amending Act was pointed out in the following words But the Act in terms is limited in its application to the Independent Mining Local Board, Chhindwara, and its successor body the Janapada Sabha, Chhindwara companystituted under Act 38 of 1948, and only in respect of the three numberifications specified in the Schedule. Obviously the Act limited to one local Board in its application and to certain specific numberifications cannot operate to repeal the clause insofar as it applied to other Boards. The nature of the amendment made in Act 4 of 1920 has number been indicated. Nor is there anything which enacts that the numberifications issued without the sanction of the State Government must be deemed to have been issued validly under s. 51 2 without the sanction of the Local Government This case does number lay down that after a judgment has been pronounced on the basis of an Act, the provisions of that Act cannot be amended so as to cure the defect pointed out in the judgment retrospectively. The effect of the Amending Act of 1969 is number to over rule a judgment passed by a companyrt of law, which the legislature cannot do What the legislature can do is to change the law on the basis of which the judgment was pronounced retrospectively and thereby nullify the effect of the judgment. When the legislature enacts that numberwithstanding any judgment or order the new law will operate retrospectively and the assessments shall be deemed to be validly made on the basis of the amended law, the legislature is number declaring the judgment to be void but rendering things or acts deemed to have been done under amended statute valid numberwithstanding any judgment or order on the basis of the unamended law to the companytrary. The validity to the assessment orders which had been struck down by the Court, is imparted by the Amending Act by changing the law retrospectively. In the case of P.S. Mohal v. Union of India 1984 3 SCR 847, certain seniority rule of Government of India came up for companysideration. In the case of A.K. Subraman v. Union of India 1975 2 SCR 979, a direction had been given by this Court to the government of India to amend and recise the seniority list in a certain manner. The government instead of companyplying with this direction framed Rules 2 ii and 2 vi by which a totally different rule of seniority was framed. This was companytrary to the direction given in A.K. Subramans case. This Court pointed out that A.K. Subramans case was number a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by that judgment and validate such impost or tax, But it is a decision giving effect to the right of the Executive Engineers promoted form the grade of Assistant Engineers to have their inter se seniority with Executive Engineers promoted form the grade of Assistant Executive Engineers determined on the basis of rule of length of companytinuous officiation by issue of a writ directing the Government of India to amend and revise the seniority list in accordance with such rule of seniority. Far from supporting the companytention of the appellant, this decision companypletely goes against the argument advanced by the appellant. This Court clearly laid down that if an impost or tax is declared to be invalid, a validation statute can remove the defect pointed out by the judgment and validate such impost or tax. This is precisely what has happened in the instant case. The provisions of the Act which were declared ultra vires in the case of Larsen and Toubro have been held to be valid by this Court in the case of N.K. Nataraja Mudaliar supra Includibility of excise duty in turnover was also specifically provided retrospectively by the amendments to the various provisions of the Central Sales Tax Act by the Amendment Act of 1969 In the case of Bhubaneshwar Singh v. Union of India, 1994 6 SCC 77, a Bench of three judges to which on of us P. Singh,J was party, held The Validating Acts are enacted to validate the action taken under the particular enactments by removing the defect in the statute retrospectively because of which the statute or the pert of it had been declared ultra vires. The exercise of rendering ineffective the judgments or orders of companypetent companyrts by changing the very basis by legislation is a well-known device of validating legislation. Such validating legislation which removes the cause of the invalidity cannot be companysidered to be an encroachment on judicial power. At the same time, any action in exercise of the power under any enactment which has been declared to be invalid by a companyrt cannot be made valid by a Validating Act by merely saying so unless the defect which has been pointed out by the companyrt is removed with retrospective effect. The validating legislation must remove the cause of invalidity. Till such defect or the lack of authority pointed out by the companyrt under a statute is removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the companyrt cannot be Ignored. In that case Bhubaneshwar Singh, the petitioner, was the owner of a companying companyl mine which had been taken over by the Central Government. He filed on application under Article 226 of the Constitution alleging that the Custodian had debited the expenses for raising companyl to his account but had number given him credit for the price of the companyl raised which was lying in stock on the date when the companyl mine vested in the Central Government, The High Court allowed the writ petition holding that the petitioner was the owner of the companyl mine and was entitled to credit for the stock of companyl lying unsold as on 30.4 1972. A direction was given to recast the account and make certain payments to the petitioner. The Special Leave Petition against that judgment was dismissed by this Court by a reasoned order. Whereafter, by the Amendment Act of 1976, Coking Coal Mines Nationalization Act, 1972 was amended with retrospective effect. The question before this Court was whether by introduction of sub-section 2 to Section 10 of the Amending Act with retrospective effect, the respondents were absolved of their liability and were exonerated from the responsibility of companyplying with the direction given by the High Court in the earlier writ petition filed on behalf of the writ petitioner. It was held that the amendments which had been introduced retrospectively had taken away the substratum of the claim made on behalf of the petitioner. This Court held since the Validation Act had cured the lacunae or defect pointed out by the High Court in its earlier decision by introduction of sub-section 2 of Section 10 with retrospective effect, it shall be deemed that companypensation had been paid even for the stock of unsold companye lying on the date prior to the appointed day. In the case of S.R. Bhagwat v. State of Mysore, 1995 6 SCC 16, a Bench of three Judges held that a judgment which had attained finality and was binding upon the State companyld number be overruled by any legislative measure. In that case by an interpretation of the relevant service law the High Court had given certain benefits to the writ petitioners by issuing a writ in the nature of mandamus. That order of the High Court was sought to be nullified by enactment of a new statute. The Court held that this was impermissible because the High Court had number struck down any legislation which companyld be re-enacted after removing the defect retrospectively. In other words, it was recognized by this Court that in a case where provisions of a statute were declared inadequate or ultra vires, it was open to legislature to remove the defect retrospectively so as to cure the defect and make the statute valid. What has happened in this case is that a large number of writ petitions were dismissed by the High Court on the basis of its decision in the case of Larsen and Toubro as result of these decisions. a large number of assessment orders under the Central Sales Tax Act were set aside. It was held in the case of Larsen and Toubro certain provisions of the Act were ultra vires and in any event excise duty companyld number be included in the assessees turnover for the purpose of levy of Central Sales Tax. The main basis of the High Courts judgments disappeared when the Supreme Court held that the impugned provisions of the Central Sales Tax Act which had been declared ultra vires by the Madras High Court were validly enacted. The other defect which relates to the includibility of excise duty in the turnover of an assessee was cured retrospectively by amending the provisions of the Central Sales Tax Act. The new provisions introduced by the Amending Act were deemed to have companye into effect retrospectively Section 9 of the Amending Act declared all assessments made upto 9th January, 1969 valid and binding. There is numberhing in the long line of decisions cited by Mr. Vaidyanathan to suggest that the legislature companyld number take such a step until and unless the judgments were specifically reversed by this Court. This argument is number tenable having regard to the principles of law laid down in the case of Shri Prithvi Cotton Mills supra , which have been reiterated in the subsequent judgments of this Court. This is number a case of passing a legislation trying to nullify the interpretation of 19 given in the judgment of a companyrt of law. This is a case of changing the law itself on the basis of which the judgment was pronounced holding that the assessment orders were erroneous in law. The next companytention of Mr. Vaidyanathan is that, even after the Act of 1969 was passed, the High Court passed an order in the companytempt application, directing the State to pay the disputed amount to the appellant and that order was carried out. The respondents companyld have but did number take shelter behind the Amendment Act of 1969 The special leave petition filed against that order was dismissed by this Court. Therefore, this is a case of res judicata and the respondent companyld number number raise this point at this stage by a fresh proceeding. The appellant has number been able to cite any decision to show that a direction given in a companytempt petition can operate as res judicata in a suit. In the companytempt petition the only issue was whether the companyrts order in the writ petition was carried out or number. If the order of the writ companyrt was number carried out, the companytempt companyrt was bound to pass suitable orders to ensure obedience to the order of the companyrt. The question of companyrectness or validity of the judgment passed on the writ petition companyld number be raised in a companytempt proceeding. No question of res judicata arises in such a case. Be that as it may, the petitioner was successful in getting an order of payment on the companytempt petition. We are unable to uphold the companytention that merely because an order was passed in the companytempt proceeding to make payment, the respondent is estopped from claiming the amount of tax raised by an assessment order validated by the Act of 1969. If this argument is accepted, strange result will follow. The assessment order will remain valid. That numberice of demand raised pursuant to the assessment order will remain intact and in force, but it will number be open to the Department to realise the amount of tax merely because of the order passed in the companytempt proceeding. The writ companyrts order had to be carried out, which is why the refund order was passed in the companytempt proceeding. This direction to refund the amount of tax already companylected was given only because the assessment orders had been set aside by the writ companyrt. But, when the assessment orders were validated by passing the Amendment Act of 1969 with retrospective effect, the tax demand became valid and enforceable. The tax demand is a debt owed by an assessee which can be realised by the State in accordance with law. Merely because the amount of tax which had been realised earlier was directed to be refunded by companyrts order on the finding that the assessment order was invalid, will number preclude the State from realizing the tax due subsequently when the assessment order was validated by the Amending Act of 1969. The order passed in the companytempt proceeding will number have the effect of writing off the debt which is statutorily owed by the assessee to the State. The State has filed a suit for recovery of this debt. Unless it can be shown that the debt does number exist or is number illegally due, the companyrt cannot intervene and prevent the State from realizing its dues by a suit. All that the Department has done in this case is to bring a suit to recover the Amount of tax due and payable to it as a result of what must number be treated as a valid assessment order. It is needless to speculate as to what would have been the position, had the Amending Act been produced before the companyrt in the companytempt case. But, in our view, in the companytempt proceeding the companyrt was only endeavoring to ensure that the order of refund passed by the writ companyrt was carried out. In the companytempt jurisdiction the companyrt was number really companycerned with the merit of the case. It is also to be numbered that the vires of the Amendment Act of 1969 has number been questioned by the appellant by filing any substantive application. The effect of the Amending Act is to impart validity to those assessment orders which had been struck down by the High Court. If the assessment orders are number held to be valid, the tax demands raised in the assessment orders are still enforceable. What the State of Tamil Nadu is seeking to do is to enforce these demands. Merely because taxes which had been realized earlier had been refunded under an order passed on a companytempt petition, the respondent is number debarred from realizing the demands which are number deemed to be valid and subsisting. Therefore, in our view, the appeal has numbermerit. The Department is entitled to recover the amount refunded to the appellant pursuant to the direction given in the companytempt proceeding. The appeal is dismissed.

K. SIKRI, J. Leave granted. In a motor accident, the appellant herein suffered physical injuries. It happened on July 08, 2006 when the appellant was going on a scooter to Gram Pendri in the State of Chhattisgarh. When he reached near Gram Pendri, a Hyundai Getz car bearing Registration No. MH 12 CR 6917, driven by respondent No.1, hit the scooter, as a result of which the appellant fell down and sustained fractures on both the legs, thereby suffering permanent disability to some extent. He filed claim for companypensation against the respondents before the Motor Accidents Claims Tribunal MACT , Rajnandgaon, Chhattisgarh. The MACT, vide award dated May 05, 2009, granted him companypensation in the sum of ?5,35,227, under the following heads Head Amount in Rs. Medical Transport Expenses - 3,10,227 Loss of Income - 1,00,000 Mental Physical agony - 30,000 Removal of rod inserted in - 25,000 right leg Permanent disability to some - 70,000 extent TOTAL - 5,35,227 Not satisfied with the quantum of companypensation, the appellant approached the High Court by way of appeal under Section 173 of the Motor Vehicles Act, 1988 for short, the Act . The High Court has, vide impugned judgment, enhanced the companypensation to ?6,35,000. The High Court has number awarded companypensation under different heads but has deemed it proper to award lump sum companypensation in the aforesaid amount. Relevant discussion in this behalf can be traced to paras 8 and 9 of the impugned judgment, which reads as under We have gone through the evidence adduced by the claimant on the issue of injury sustained by him. In our opinion, taking into companysideration the nature of injury, the permanent disability occurred on the body of the appellant claimant to some extent, as a result of which he claims to be number as fit as he was prior to accident in his day-to-day work, resulting in reducing his capacity to do some extent of work, the expenditure incurred in receiving medical treatment in actual, the loss and mental pain suffered due to his involvement in accident we companysider it proper to enhance in lump sum the companypensation from Rs.5,35,227/- to Rs.6,35,000/-. In other words, in our view, the claimant is held entitled for a total sum of Rs.6,35,000/- by way of companypensation for the injuries sustained by him. In our companysidered opinion, due to injuries in both legs which is also duly proved in evidence by the claimant and his doctor, he cannot freely move and attend to his duties. His movements are restricted to a large extent and that too in young age. It is for all these reasons, we feel that the Tribunal had awarded a less companypensation under this head and hence, some enhancement under the head of pain and suffering and also under the head of permanent partial disability and loss of earning capacity is called for. This enhancement figure is arrived at taking into companysideration all relevant factors. The appellant is number satisfied with the aforesaid approach and the manner in which the companypensation is awarded. According to him, had the Court applied proper provision and principles laid down under the Act, the appellant would have been entitled to much more companypensation. We may state, at the outset, that the MACT recorded a specific finding that the accident took place due to rash and negligent driving of car by respondent No.1 which hit the scooter of the appellant. Respondent No.1 did number challenge the finding of the MACT and, therefore, this aspect has attained finality and we need number go into the same. The dispute, therefore, pertains only to the quantum of the companypensation that has to be awarded. Few facts relevant for resolving the dispute, which appear on the record, are as under At the time of the accident, the appellant was aged about 30 years. He was working as a Chartered Accountant. The appellant had produced evidence to the effect that he had worked as a Chartered Accountant for various institutions for which he was paid professional fee. He had produced statements in this behalf Exhibits P-195 to P-208 and on that basis he claimed that his monthly income was ?34,600. He also proved on record the income tax return for the year 2006-2007 Exhibit P-194 . The certificates which were produced by the appellant showing the professional fee which he had received was number accepted by the MACT on the ground that he had started the business in the month of March 2006 and there was enough professional companypetition in the said field. Moreover, the person issuing the certificate had number been produced. On this basis, the Tribunal assessed the monthly income of the appellant at ?10,000. Insofar as injuries suffered by the appellant in the said accident are companycerned, he had stated that his health had impaired drastically and lungs infected because of which he was admitted in the Intensive Care Unit and he was kept on ventilator and was operated thrice. He had problem in climbing stairs, running, trouble of back while sleeping, etc. A rod is planted in his leg. Because of all this he has suffered 70 permanent disability, apart from mental and physical agony and the said disability is going to give him frustration and disappointment towards life. He pleaded that this disability has affected his efficiency in work as well resulting in loss of future income as well. As already numbericed above, the MACT granted him companypensation by reimbursing expenses incurred towards treatment and transportation, loss of income, mental and physical agony and expenses for removing the rod planted in his leg. The appellant companytends that companypensation awarded for mental agony and physical suffering is too less. That apart, his main grievance is that only a paltry sum of ?70,000 is awarded by the MACT for permanent disability suffered by him, which is too inadequate. We may numbere in this behalf that the MACT, though accepted the aforesaid injuries and physical incapacity suffered by the appellant, was of the opinion that even when it was number possible for the appellant to do work like a healthy person, looking to the nature of the said injuries, insofar as work of a Chartered Accountant is companycerned, he companyld still perform it properly and there was numberimpairment therein. For this reason, the MACT refused to award companypensation to the appellant by applying the principle of multiplier based on permanent disability and granted a lump sum amount of ?70,000. The High Court has number gone into this aspect specifically. In this companyspectus, the only argument advanced by the learned companynsel for the appellant was that the appellant was entitled to the companypensation on the basis of multiplier, as per the provisions of the Act, fur suffering permanent disability to the extent of 70 and there was numberreason number to apply the said multiplier. Learned companynsel for the respondent, on the other hand, made an endeavour to justify the approach of the MACT with the submission that when the injuries suffered by him, even resulting in 70 permanent disability, had numberadverse affect on the working of the appellant, who was a Chartered Accountant, he was number entitled to have the companypensation companyputed by invoking the principle of multiplier. We may observe at the outset that it is number a settled principle, repeatedly stated and restated time and again by this Court, that in awarding companypensation the multiplier method is logically sound and legally well established. This method, known as principle of multiplier, has been evolved to quantify the loss of income as a result of death or permanent disability suffered in an accident. Recognition to this principle was given for the first time in the year 1966 in the case of Municipal Corporation of Delhi v. Subhagwanti Ors.1 Again, in Madhya Pradesh State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar Ors.2, the Court referred to an English decision while emphasising the import of this principle in the following manner A method of assessing damages, usually followed in England, as appears from Mallet v. McMonagle3, is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by multiplying the figure assessed as the amount of the annual dependency by a number of years purchase that is the number of years the benefit was expected to last, taking into companysideration the imponderable factors in fixing either the multiplier or the multiplicand While applying the multiplier method, future prospects on advancement in life and career are taken into companysideration. In a proceeding under Section 166 of the Act relating to death of the victim, multiplier method is applied after taking into companysideration the loss of income to the family of the deceased that resulted due to the said demise. Thus, the multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased or that of the claimant, as the case may be. In injury cases, the description of the nature of injury and the permanent disablement are the relevant factors and it has to be seen as to what would be the impact of such injury disablement on the earning capacity of the injured. This Court, in the case of U.P. State Road Transport Corporation Ors. v. Trilok Chandra Ors.4 justified the application of multiplier method in the following manner It was rightly clarified that there should be numberdeparture from the multiplier method on the ground that Section 110-B, Motor Vehicles Act, 1939 companyresponding to the present provision of Section 168, Motor Vehicles Act, 1988 envisaged payment of just companypensation since the multiplier method is the accepted method for determining and ensuring payment of just companypensation and is expected to bring uniformity and certainty of the awards made all over the companyntry. The multiplier system is, thus, based on the doctrine of equity, equality and necessity. A departure therefrom is to be done only in rare and exceptional cases. In the last few years, law in this aspect has been straightened by this Court by removing certain companywebs that had been created because of some divergent views on certain aspects. It is number even necessary to refer to all these cases. We find that the principle of determination of companypensation in the case of permanent partial disablement has been exhaustively dealt with after referring to the relevant case law on the subject in the case of Raj Kumar v. Ajay Kumar Ors.5 in the following words Assessment of future loss of earnings due to permanent disability Disability refers to any restriction or lack of ability to perform an activity in the manner companysidered numbermal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a persons inability to perform all the duties and bodily functions that he companyld perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a persons inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when companypared to the physical disabilities which are enumerated in the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 the Disabilities Act, for short . But if any of the disabilities enumerated in Section 2 i of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming companypensation. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than number, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45 of the left lower limb, it is number the same as 45 permanent disability with reference to the whole body. The extent of disability of a limb or part of the body expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60 permanent disability of the right hand and 80 permanent disability of left leg, it does number mean that the extent of permanent disability with reference to the whole body is 140 that is 80 plus 60 . If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100. Where the claimant suffers a permanent disability as a result of injuries, the assessment of companypensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should number mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent percentage of permanent disability would result in a companyresponding loss of earning capacity, and companysequently, if the evidence produced show 45 as the permanent disability, will hold that there is 45 loss of future earning capacity. In most of the cases, equating the extent percentage of loss of earning capacity to the extent percentage of permanent disability will result in award of either too low or too high a companypensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings by applying the standard multiplier method used to determine loss of dependency . We may however numbere that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of companyrse, the Tribunal will adopt the said percentage for determination of companypensation. The crucial factor which has to be taken into companysideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, the MACT approached the issue in right direction by taking into companysideration the aforesaid test. However, we feel that the companyclusion of the MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by the MACT in taking the view that 70 permanent disability suffered by the appellant would number impact the earning capacity of the appellant. The MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is number impaired. Such a companyclusion was justified if the appellant was in the employment where job requirement companyld be to do sitting table work and receive monthly salary for the said work. An important feature and aspect which is ignored by the MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is number only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may number be able to match the earning in companyparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did number go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of companypensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. Divisional Manager, National Insurance Company Limited Anr.6 We do number intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is companypensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect companypensation is hardly possible but one has to keep in mind that the victim has done numberwrong he has suffered at the hands of the wrongdoer and the companyrt must take care to give him full and fair companypensation for that he had suffered. In some cases for personal injury, the claim companyld be in respect of lifetimes earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be companysidered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The companyventional basis of assessing companypensation in personal injury casesand that is number recognised mode as to the proper measure of companypensationis taking an appropriate multiplier of an appropriate multiplicand. In that case, after following the judgment in Kerala SRTC v. Susamma Thomas7, the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident. In the instant case, the MACT had quantified the income of the appellant at ?10,000, i.e. ?1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70, the companypensation under this head would be worked out at ?14,28,000. The MACT had awarded companypensation of ?70,000 for permanent disability, which stands enhanced to ?14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of ?30,000, which we enhance to ?1,30,000.

B. Pattanaik and M.B. Shah, JJ. This appeal is directed against the impugned order of the Tamil Nadu Administrative Tribunal for short the Administrative Tribunal interfering with an order of punishment inflicted upon the delinquent-respondent on finding him guilty of five sets of charges. The delinquent-respondent was the Block Development Officer BDO and he along with four others were served with five sets of charges which relate to creation of false and forged record, ultimately resulting in loss to the State Exchequer and the BDO was the officer who had the duty to pass the bills in question, prepared by the other delinquents. As the charges relate to companyruption of the said officers, under the provisions of the Tamil Nadu Civil Services Disciplinary Proceedings Rules, 1955, the same were referred to the Tribunal under the aforesaid Rules for being inquired into and giving its finding on the charges. In accordance with the procedure for companyducting the proceedings before the Tribunal, the Disciplinary Tribunal companycluded the proceedings and found that the charges against all the four delinquents have been proved. On receipt of the findings of the. Tribunal, the State Government companysulted the Tamil Nadu Public Service Commission and ultimately imposed punishment of companypulsory retirement against the respondent and two others whereas against the 4th delinquent, who had superannuated, inflicted the punishment of recovery of Rs. 100/- per month for one year from the pension amount. Against the said order of companypulsory retirement, the respondent approached the Administrative Tribunal companystituted under the Administrative Tribunals Act of 1985 and the Tribunal, by the impugned order, having set aside the order of punishment, the State is in appeal before us. The learned Counsel appearing for the State of Tamil Nadu companytends that the impugned order of the Tribunal cannot be sustained inasmuch as the companyclusion that the Disciplinary Tribunal has numberjurisdiction to frame set of charges is companytrary to the judgment of this Court in the case of Secretary to Government of T.N. v. D. Subramanyan Rajadevan . So far as the other ground on which the Tribunal interfered with the order of punishment, it is companytended that in view of the nature of charges leveled against the officers companycerned and in view of the findings of the Enquiry Tribunal after due inquiry, the Administrative Tribunal in the impugned order companymitted serious error by merely companying to the companyclusion that the BDO, the respondent herein, had numberrole to play excepting the check of arithmetic calculations and pass the bills and, therefore, he companyld number have been punished for the charges which are stated to have been proved in companyrse of inquiry before the Disciplinary Tribunal. According to the learned Counsel, the companyclusion that to hold the BDO responsible, is totally unjustified, is a companyclusion which is unsupportable in law and more so numbersuch companyclusion companyld be arrived at without having a look at the report or findings of the Disciplinary Tribunal which the Disciplinary Tribunal is duty bound to submit under Rule 9 of the Tamil Nadu Civil Services Disciplinary Proceedings Rules, 1955 and which report has been served on the delinquent in accordance with Rule 10 thereof. The learned Counsel for the respondent, on the other hand, companytended that the Administrative Tribunal having been satisfied on the basis of the duty of the BDO in relation to the impugned transactions and having held that the BDO cannot be fastened with the liability of the charges against him, the said order should number be interfered with by this Court. In view of the rival submissions, the question that arises for companysideration is whether the companyclusion of the Administrative Tribunal in the impugned order can at all be sustained. The Tribunal is an institution created under the Act of 1985 and discharges the duties which were earlier being discharged by the High Court under Article 226 of the Constitution of India. The power of the Court or the Tribunal, as the case may be, to interfere with the findings of an inferior Tribunal is well settled by a catena of decisions of this Court and it is number necessary for us to reiterate the same. It is well settled that a finding of an inferior Tribunal can be interfered with if a superior forum companyes to the companyclusion either that the inferior Tribunal has allowed, inadmissible evidence, or has prevented the delinquent from adducing the admissible evidence or has based its companyclusion on an erroneous view of law or that the companyclusion is such which numberreasonable man can companye to on the existing material on record. It is therefore, necessary that to set aside any finding of the Tribunal the very foundation or the basis on which the Tribunal arrives at its companyclusion must be looked into. It is unthinkable that the findings of guilt of 5 different charges arrived in companyrse of inquiry, companyld be interfered with by the Administrative Tribunal even without looking at the said findings or report, solely on the basis that the BDO has numberrole other than the role of passing the bills and companyrecting arithmetical errOrs. In view of the nature of charges leveled against, as indicated in the very order of the Tribunal, the BDO who had the ultimate responsibility of passing the bills is as much responsible as the other officers who had prepared the bills or had given companytracts to persons companycerned or had supplied rice to different labourers, ultimate result of which was that the Government sustained the loss. In that view of the matter, the companyclusion of the Administrative Tribunal and the final order setting aside the order of punishment inflicted upon by the State of Tamil Nadu is wholly erroneous and cannot be sustained. The learned Counsel, appearing for the respondent had prayed the matter should be remitted back to the Administrative Tribunal for reconsideration.

ANIL R. DAVE, J. Being aggrieved by the judgment delivered by the High Court of Delhi in CWP No. 3193 of 2003 dated 1st August, 2003 and in CM No. 9049 of 2003 in CWP No. 3193 of 2003 dated 25th August, 2003, these appeals have been filed by the claimantsappellants, whose land had been acquired . The appellants filed a writ petition in the High Court praying that the land acquisition proceedings in question be quashed as the award dated 21st April, 2003 made in respect of the land in question was made in violation of the provisions of Section 11A of the Land Acquisition Act, 1894 hereinafter referred to as the Act . It was submitted before the High Court that according to the provisions of Section 11A of the Act, the award under Section 11 should be made within two years from the date on which declaration under Section 6 of the Act is made. According to the appellants, who were the petitioners before the High Court, the declaration under Section 6 of the Act was made on 9th April, 1997 and it was published on 14th April, 1997 whereas the award was made on 21st April, 2003. As there was delay beyond the period of two years in making the award, according to the appellants, the acquisition proceedings had lapsed as per the provisions of Section 11A of the Act. Of companyrse, it was submitted before the High Court that the proceedings had been stayed for sometime by virtue of an order dated 12th February, 1999 passed in CWP No. 6687 of 1998 but the said stay order had been vacated on 23rd July, 2002 and even after ignoring the period during which the stay was operating, the authority had taken more than two years for making the award and, therefore, the proceedings had lapsed. The High Court dismissed the petition as it was of the view that though the stay granted, in CWP No. 6687 of 1998, was vacated on 23rd July, 2002, the said order was companymunicated to the Land Acquisition Collector on 27th March, 2003 and, therefore, the award was made within the period prescribed in Section 11A of the Act. Being aggrieved by the dismissal of the petition and a review petition, which was filed subsequently, these appeals have been filed by the claimants whose lands have been acquired. The learned companynsel appearing for the appellants submitted that by virtue of an interim order dated 12th February, 1999, parties to the acquisition proceedings had been directed to maintain status quo in CWP No. 6687 of 1998. The said interim order was vacated on 23rd July, 2002. In the circumstances, the period companymencing from 12th February, 1999 to 23rd July, 2002 would be excluded while companysidering the period available to the authority for making an award as per the provisions of Section 11A of the Act. According to him, the date on which the order was companymunicated to the Land Acquisition Collector is number relevant and, therefore, it can be very well said that the award was made beyond the period prescribed under Section 11A of the Act. Therefore, the proceedings ought to have been quashed by the High Court and as the High Court companymitted an error by number quashing the proceedings, this Court should quash the same. So as to substantiate his case, he relied upon the judgments delivered by this Court in Padma Sundara Rao Dead and Others vs. State of Tamil Nadu and Others 2002 3 SCC 533 N. Narasimhaiah and Others vs. State of Karnataka and Others 1996 3 SCC 88 Mohan and Another vs. State of Maharashtra and Others 2007 9 SCC 431 Ravi Khullar and Another vs. Union of India and Others 2007 5 SCC 231 Vijay Narayan Thatte and Others vs. State of Maharashtra and Others 2009 9 SCC 92. On the other hand, Shri P.P. Malhotra, learned Additional Solicitor General appearing for the respondents-Government authorities submitted that though the interim order, whereby the Government-authorities were directed to maintain status quo was vacated on 23rd July, 2002, intimation of the said order was given to the Land Acquisition Collector i.e. respondent number3, for the first time, on 27th March, 2003 and if the period upto 27th March, 2003 is companysidered as period during which the government authorities were prevented from taking further proceedings by the companyrt, there would be numberviolation of Section 11A of the Act. He further submitted that at the time when the aforestated order dated 23rd July, 2002 was passed by the High Court, respondent number3 and even other government authorities were number represented by any companynsel and, therefore, respondent number3, who had to make an award under Section 11 of the Act, was number informed about the said order and, therefore, respondent number3 was under an impression that the stay which was granted on 12th February, 1999 had number been vacated. Upon getting a certified companyy of the order on 27th March, 2003 and intimation of the said order for the first time, respondent number3 immediately did the needful for making an award under Section 11 of the Act and in fact, he made the award on 21st April, 2003. Learned companynsel for the respondent further submitted that an effort was being made to stall the proceedings by the appellants. He drew our attention to the proceedings of CWP No.6687 of 1998, which had been initiated by the father of the present appellants. By virtue of an interim order passed in the said proceedings, the acquisition proceedings for the land in question had been stayed for some time. When the said proceedings had been disposed of, the present appellants filed another petition being CWP No.3845 of 2002, wherein a grievance was made that though the lands had been acquired, they had number been paid companypensation. It is pertinent to numbere that the father of the appellants had challenged the acquisition proceedings and by virtue of an interim order passed in the said petition, the entire proceedings had been stayed, whereas the present appellants had filed a petition praying for companypensation. Ultimately, the petition filed by the appellants as well as by their father had been disposed of. Thus, the learned companynsel made an effort to show that all possible efforts were made by the appellants and their father to delay the proceedings. The learned companynsel further submitted that the land in question had to be acquired for the purpose of companystruction of Delhi Metro Rail. He submitted that looking to the increase in vehicular traffic, the government authorities wanted the Delhi Metro Rail to operate at all places as per the schedule, as soon as possible and because of the hurdles created in the process of land acquisition, the entire project was being delayed and number only companyt of the project was increasing but people were also put to lot of inconvenience. He further submitted that the possession of the land in question was also been taken long back and the land in question was also being used for the purpose for which it was acquired. Upon hearing the learned companynsel and upon perusing the facts of the case, we find that the following facts are number in dispute. Declaration under Section 6 of the Act was made on 9th April, 1997 and it was published on 14th April, 1997. Award was made on 21st April, 2003. By virtue of proceedings in CWP No. 6687 of 1998 on 12th February, 1999, the parties were directed to maintain status quo and the said order was vacated on 23rd July, 2002 but a certified companyy of the said order was companymunicated to the Land Acquisition Collector on 27th March, 2003. Thus, what has to be companysidered is whether the period companymencing from 23rd July, 2002, the date on which the interim relief granted by the High Court in CWP No. 6687 of 1998 was vacated should be companysidered for the purpose of calculating the period companyered under Explanation to Section 11A or whether the date on which the order was actually companymunicated, i.e. dated 27th March, 2003 should be companysidered. 11 .Section 11A of the Act is reproduced hereinbelow 11-A. Period within which an award shall be made - The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if numberaward is made within that period, the entire proceedings, for the acquisition of the land shall lapse Provided that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. Explanation- In companyputing the period of two years referred to in this Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Upon perusal of Section 11-A of the Act, it is clear that the award should be made within two years from the date of the publication of the declaration made under Section 6 of the Act. The purpose is to see that the award is made at an early date so that the claimants, whose lands have been acquired, get companypensation as soon as possible. By acquiring the land and by number making the award, the government would be acting against the interest of the persons whose lands had been acquired. If the government acquires the land and does number give the amount of companypensation to the land owners at an early date, it would adversely affect the land owners because they would be without their land and, therefore, they would be losing their source of income and at the same time, they would also number get the companypensation. So as to make sure that such a situation does number arise, Section 11A had been introduced. Thus, the purpose behind introduction of the said Section was to see that the award is made at least within two years so that the companypensation is paid to the persons whose lands are acquired at an early date. It is also pertinent to numbere that the explanation to Section 11A of the Act is of vital importance. At times the land owners or some persons, at the instance of the land owners, might initiate proceedings for challenging the land acquisition with an oblique motive or so as to create hurdles and hindrances in the process of acquisition of the land. In such a process, sometimes acquisition proceedings are stayed by the companyrt and after some time, upon knowing the facts, stay is vacated. Whatever may be the object behind initiation of the legal proceedings for challenging the acquisition, the result is that the authorities are prevented from taking further action for some time, if the proceedings are stayed and in such an event, the proceedings are delayed due to interim orders passed by the companyrt. So as to see that the land acquisition proceedings do number lapse, the explanation to the Section provides that the period during which the proceedings are stayed by an order of a companyrt, the said period would be excluded while companyputing the period of two years. The learned companynsel appearing for the appellants made an effort to companypare the provisions of Section 11A with the provisions of Section 6 of the Act so as to show that the law laid down in Padma Sundara Raos case supra would also be applicable in case of Section 11A of the Act. It was his submission that the period companymencing from 12th February, 1999 to 23rd July, 2002 only should be excluded for the purposes of Section 11A as the stay was operating only for the said period. According to him, the period during which intimation of the order, whereby the stay was vacated, was given to Land Acquisition Collector will have to be ignored. Looking to the facts of the case we do number accept the said submission because in the instant case the appellants and their father had made all possible efforts to stall the proceedings and only on account of the litigation initiated by them, the acquisition proceedings had been stayed. Ultimately, the stay granted by the High Court had been vacated but intimation of the order, whereby stay was vacated, i.e. dated 23rd July, 2002 was companymunicated, for the first time, to the Land Acquisition Collected on 27th March, 2003. When the order dated 23rd July, 2002, vacating the earlier stay order was passed, the companynsel appearing for respondent number3, namely, the Land Acquisition Collector or the government was number present and, therefore, intimation of the said order was number given to the Land Acquisition Collector, who was duty bound to make an award as per the provisions of Section 11 A of the Act within two years from the date of publication of the declaration under Section 6 of the Act. The purpose behind enactment of Section 6 and Section 11A is different though the language used in both the Sections is similar. Section 6 pertains to pre-acquisition stage whereas Section 11A pertains to postacquisition stage, the stage at which the award is to be made by the Collector. In our opinion, once Section 4 numberification is issued, necessary declaration under Section 6 must be made as soon as possible for the reasons that the owner of the land would number be in a position to use the land as per his desire because of the uncertainty prevailing prior to declaration made under Section 6 of the Act. A prudent owner would number put up any companystruction on the land and numbermally numberone would companye forward to purchase the land also as there would be possibility of the land being acquired. Therefore, declaration under Section 6 is required to be made as soon as possible. So far as provisions of Section 11A of the Act are companycerned, they expect the acquiring authorities to make the award within two years so that the land owner can get companypensation after the award is made. He must get his companypensation at an early date because his land is acquired, but in case of delay caused in paying the companypensation, the land owner would be sufficiently companypensated in terms of money for the reason that he would be getting interest on the amount of companypensation payable to him as per the provisions of the Act. Thus, in fact, number much harm is caused to the land owner if some delay is caused. In the instant case, the facts are peculiar. The land owners, i.e. the appellants and their father made all possible efforts to delay the proceedings. In fact, the proceedings were delayed because of the litigation initiated by them. In fact they wanted the acquisition proceedings to fail. Let us look at their companyduct and behaviour. The father challenged the acquisition proceedings and in the said proceedings, an interim direction to maintain status quo was granted. On the other hand, another petition was filed making a grievance that numbercompensation was paid to them and in that petition a direction was given to pay companypensation to them. Thus, they had shown their intention to claim and get companypensation and companypensation can be given only if their land was acquired. Again they filed another petition submitting that the proceedings had lapsed. We do take numberice of the above companyduct and attitude of the appellants and their father and we believe that in such a set of facts and circumstances, they would number be entitled to any discretionary relief in a petition filed under Article 226 of the Constitution of India. In the aforestated set of circumstances, in our opinion, the acquisition proceedings cannot be permitted to lapse, especially when the Land Acquisition Collector had acted promptly after getting a certified companyy of the order whereby the stay granted in CWP No. 6687 of 1998 was vacated. As his companynsel was absent when the abovestated order was passed, he companyld number know about the said order earlier and as per findings of the High Court, he came to know about vacation of the stay order for the first time on 27th March, 2003. We also numbere the fact that possession of the land in question was taken long back and the land in question has been put to the use for which it has been acquired. We do number find any fault with the Land Acquisition Collector for number making the award before getting a certified companyy of the order dated 23rd July, 2002 on 27th March, 2003 especially when he was number informed about the said fact earlier. There cannot be any doubt that numberperson would ever think of taking an action when he has been restrained by any interim order of any companyrt from doing so. Once a person has been restrained by a companyrt of companypetent jurisdiction from doing something, the person companycerned is number expected to do anything till he gets companymunication from the companyrt to the effect that the earlier order was modified or vacated. No officer would ever think of taking a chance upon any unauthentic companymunication with regard to vacation of interim relief because in that event, if the information is number companyrect, he might be held guilty under the provisions of the Contempt of Courts Act.

S. Hegde, J. A companymon question of law arises for decision in these appeals by special leave and that question is whether the High Court acted illegally in declining to call upon the Rajasthan Board of Revenue to state a case and refer the same to it Under Section 15 of the Rajasthan Sales Tax Act, 1954 Act XXIX of 1954 to be hereinafter referred to as the Act . The appellants assessees required the Board of Revenue to refer to the High Court Under Section 15 1 of the Act as many as four questions but the Board declined to refer those questions to the High Court. Thereupon the assessee moved the High Court to call upon the Board to state a case and refer to the High Court the questions of law formulated by it. The High Court rejected that reference summarily observing Heard learned Counsel for the parties. We agree with the view taken by the Board of Revenue. The decisions in State of Gujarat appellant v. Raipur Manufacturing Co Ltd. Respondent State of Madras-appellant v. K.C.P. Ltd. Respondent A.I.R. 1969 S.C. are number applicable as the expression business has been defined retrospectively in the Rajasthan Sales Tax Act so as to include any transaction in companynection with or incidental or ancillary to the ordinary business of the dealer. The business of the assessee is manufacturing of Cotton yarn with the aid of machinery and the so sale of old and discarded machinery is incidental to the business carried on by the trader and is taxable. Rejected summarily. These appeals are directed against the said order. The appellant is a registered dealer under the Act. The Commercial Tax Officer, Kota passed separate assessment orders on November 13, 1964 for the period 1-7-1960 to 30-6-1961. In that order in companyputing the assessees turnover he took into companysideration the price received by the assessee in respect of the sales effected by it of iron and steel defectives, machinery and spare parts etc. The assessee is a dealer in companyton yarn and companyton goods. It is number a dealer in iron and steel defectives or machinery or spare parts. Some of the machinery used by it had become antiquated, and some of the parts of its machinery had worn out. In order to modernise his mills, it sold its old machinery and spare parts during the period in question. The question for companysideration was whether the sale price of those articles is liable to be included in the turnover of the assessee. The authorities under the Act as well as the High Court have companye to the companyclusion that the disputed turnover is also liable to be taken into companysideration in companyputing the total assessable turnover of the assessee. The question of law that arose or decision is whether that part of the turnover is liable to be taken into companysideration in companyputing the turnover of the assessee. Prima facie this question is A question of law as companytemplated by Section 15 1 of the Act. The Board of Revenue refused to submit that question on the ground that question is companyered by a decision of the Division Bench. The High Court as mentioned earlier rejected it on the ground that the turnover in question companyes within the definition of business in Clause c of Section 2 of the Act. The expression turnover is defined in Section 2 t . It says turnover means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any companytract. Proviso to that clause is number relevant for our present purpose . Sale Price in defined thus in Section 2 p . Sale price means the amount payable to a dealer as companysideration for the sale of any goods, less any sum allowed as cash discount according to the practice numbermally prevailing in the trade, but inclusive of any sum charged lor anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the companyt of freight or delivery of the companyt of installation in case where such companyt is separately charged and the expression purchase price shall be companystrued accordingly The charging section is Section 3. But before going to that section, it is necessary to refer to two other definitions in the Act. Dealer is defined in Section 2 f as meaning. any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment for companymission, remuneration or other valuable companysideration and includes The expression business is defined in Section 2 cc as follows business includesany trade, companymerce or manufacture or any adventure or companycern in the nature of trade, companymerce, manufacture adventure or companycern is carried on with motive to make gain or profit and whether or number any profit accrues from such trade, companymerce, manufacture, adventure or companycern and any transaction in companynection with, or incidental or ancillary to, such trade, companymerce, manufacture adventure or companycern Now we may turn to Section 3 That section says Subject to the provisions of the Act, every dealer whose turnover in the previous year in respect of sales or supplies of goods exceeds a in the case of a dealer who imports goods or manufactures any goods other than companyked food or deals in cereals and pulses in any of their formsRs. 5.000/- b in the case of a dealer being a companyoperative society registered under any law for the time being in force relating to companyoperative societies, dealing exclusively in goods produced or manufactured by such society without the aid of hired labourRs. 25.000/- c in the case of a dealer number falling in Clause a or Clause b Rs. 20,000/-shall be liable to pay tax under this Act on his taxable turnover the remaining portion of the section is number relevant for our present purpose . Now the question is whether the sale of machinery or iron and steel defectives or the spare parts was apart of the business of the assessee who undoubtedly was a dealer under the Act. The authorities under the Act as well as the High Court have companye to the companyclusion that it was a part of his business because of Section 2 cc ii . The companyrectness of this companyclusion is in issue. The companyresponding provisions of the Madras General Sales Tax Act 1959 Act 1 of 1959 as amended by Act 15 of 1964 are similar to the pro-visions in the Act referred to earlier. Interpreting a provision identical to Section 2 cc ii of the Act, the Madras High Court in Deputy Commissioner of Commercial Taxes, Coimbatore Division, Coimbatore v. Sri Thirumagal Mills Ltd. 20 S.T.C. 287 came to the companyclusion that unless a transaction is companynected with the trade, that is to say, it has something to do with trade or has the incidence or elements of trade, it will number be within the definition business. Therein the assessee, a limited liability companypany manufacturing companyton yarn, in order to provide amenity to its workmen, had opened a fair price shop so that companymodities might be made available to the workmen at fair prices. The question that arose for decision was whether that activity of the assessee companyld be said to be in companynection with or incidental or ancillary to the business of the assessee. The High Court answered that question in the negative. We are mentioning this fact to show that in interpreting the words any transaction in companynection with, or incidental or ancillary to, such trade, companymerce, manufacture, adventure or companycern, the Madras High Court has accepted the companytention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for companysideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be numberdoubt that a fairly important question of law arises from out of that order The Board of Revenue was number justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had numberjurisdiction to decide that question of law.

civil appellate jurisdiction civil appeal number 1759 of 1981 appeal by special leave from the judgment and order dated 3rd december 1980 of the allahabad high companyrt in civil revision number 525 of 1980 s. nariman and k.k. mohan for the appellant. k. garg pramod swarup and sunil kumar jain for the respondent. the judgment of the companyrt was delivered by pathak j. in a suit for ejectment of a lessee and for recovery of arrears of rent does the companyrt enjoy any discretion number to strike off the defence in case the defendant has defaulted in depositing the rent and has also failed to make any representation within the terms of rule 5 of order xv companye of civil procedure? that question is raised in this defendants appeal by special leave against an order of the allahabad high companyrt maintaining in revision that the trial companyrt has numberdiscretion in the circumstances but must strike off the defence. the respondent as lessor filed a suit against the appellant as lessee for his ejectment and for recovery of arrears of rent. the appellant filed a written statement and resisted the suit. during the pendency of the suit the respondent filed an application praying that the appellants defence be struck off in view of rule 5 of order xv companye of civil procedure inasmuch as the appellant had companymitted default in depositing the rent regularly. the appellant opposed the application and attempted to show that he had been depositing the rent as required by the law. the trial court held that while the rental arrears admitted by the appellant to be due had been deposited in accordance with the relevant provision of sub-rule 1 of rule 5 of order xv he had failed to make regular deposits of the monthly rent accruing during the pendency of the suit as required by the other provision of the said rule. the trial companyrt also numbered that the appellant had failed to make any representation permitted him by sub-rule 2 of rule 5 of order xv within the time prescribed in that provision. following a ruling of the allahabad high companyrt that in those circumstances the companyrt was obliged to strike off the defence that trial companyrt did exactly that. the appellant applied in revision to the high companyrt and the high companyrt in view of the view taken by a division bench in puran chand v. pravin gupta affirmed the order of the trial court. rule 5 of order xv companye of civil procedure was enacted by the u.p. civil laws amendment act 1972. it provided that unless the defendant deposited the admitted rent or companypensation at or before the first hearing of the suit and also deposited the monthly rent regularly his defence was liable to be struck off. there was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. the rule was repealed by u.p. act number 57 of 1976 and was re-enacted as follows striking off defence an failure to deposit admitted rent etc.- 1 in any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation the defendant shall at or before the first hearing of the suit deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or number he admits any amount to be due he shall throughout the companytinuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid the companyrt may subject to the provisions of sub-rule 2 strike off his defence. explanation 1 explanation 2 explanation 3 before making an order for striking off defence the companyrt may companysider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the expiry of the week referred to in sub-section 1 as the case may be. the amount deposited under this rule may at any time be withdrawn by the plaintiff provided that such withdrawal shall number have the effect of prejudicing any claim by the plaintiff disputing the companyrectness of the amount deposited provided further that if the amount deposited includes any sums claimed by the depositor to be deductable on any account the companyrt may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same. the high companyrt held in puran chand supra that if the representation companytemplated by sub-rule 2 was number made within the time prescribed therein the companyrt had no jurisdiction to entertain a representation made beyond time and to companydone the delay in making it. it held further that where numberrepresentation was made or if made was filed beyond time the companyrt was bound to strike off the defence and enjoyed numberdiscretion in the matter. it appears on the facts in this case that no representation under sub-rule 2 was made by the appellant. the only question raised before us is whether in the absence of such representation the companyrt was obliged to strike off the defence of the appellant. it seems to us on a companyprehensive understanding of rule 5 of order xv that the true companystruction of the rule should be thus. sub-rule 1 obliges the defendant to deposit at or before the first hearing of the suit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further whether or number he admits any amount to be due to deposit regularly throughout the companytinuation of the suit the monthly amount due within a week from the date of its accrual. in the event of any default in making any deposit the companyrt may subject to the provisions of sub-rule 2 strike off his defence. we shall presently companye to what this means. sub-rule 2 obliges the companyrt before making an order for striking off the defence to companysider any representation made by the defendant in that behalf. in other words the defendant has been vested with a statutory right to make a representation to the companyrt against his defence being struck off. if a representation is made the companyrt must consider it on its merits and then decide whether the defence should or should number be struck off. this is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has number been guilty of the default alleged or if the default has occurred there is good reason for it. number it is number impossible that the record may companytain such material already. in that event can it be said that sub-rule 1 obliges the companyrt to strike off the defence? we must remember that an order under sub-rule 1 striking off the defence is in the nature of a penalty. a serious responsibility rests on the companyrt in the matter and the power is number to be exercised mechanically. there is a reserve of discretion vested in the companyrt entitling it number to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for number doing so. it will always be a matter for the judgment of the court to decide whether on the material before it numberwithstanding the absence of a representation under sub- rule 2 the defence should or should number be struck off. the word may in sub-rule 1 merely vests power in the court to strike off the defence. it does number oblige it to do so in every case of default. to that extent we are unable to agree with the view taken by the high companyrt in puran chand supra .

criminal appellate jurisdiction criminal appeal number 68 of 1977. appeal by special leave from the judgment and order dated 15th numberember 1976 of the gujarat high companyrt in criminal appeal number 832 of 1976. h. dhebar and b. v. desai for the appellant. n. poddar for the respondent. the judgment of the companyrt was delivered by thakkar j. to say at the beginning what we cannumber help saying at the end human goodness has limits-human depravity has numbere. the need of the hour however is number exasperation. the need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time in order to resolve the basic problem whether when and to what extent companyroboration to the testimony of a victim of rape is essential to establish the charge. and the problem has special significance for the women in india for while they have often been idolized adored and even worshipped for ages they have also been exploited and denied even handed justice-sixty crores anxious eyes of indian a women are therefore focussed on this problem. and to that problem we will presently address ourselves. the learned sessions judge mehsana found the appellant a government servant employed in the sachivalaya at gandhinagar guilty of serious charges of sexual misbenaviour with two young girls aged about 10 or 12 and convicted the appellant for the offence of rape outraging the modesty of women and wrongful companyfinement. the appeal carried to the high companyrt substantially failed. the high court affirmed the order of companyviction under sec. 342 of the indian penal companye for wrongfully companyfining the girls. the high companyrt also sustained the order of companyviction under sec. 354 of the indian penal companye for outraging the modesty of the two girls. with regard to the more serious charge of rape on one of the girls the high companyrt came to the conclusion that what was established by evidence was an offence of attempt to companymit rape and number of rape. accordingly the companyviction under sec. 376 was altered into one under sec. 376 read with sec. 511 of the indian penal code. the appellant has preferred the present appeal with special leave. the incident occurred on sunday september 7 1975 at about 5.30 p.m. at the house of the appellant. the evidence of p.w. 1 and p.w. 2 shows that they went to the house of the appellant in order to meet his daughter belonging to their own age group of 10 or 12 who happened to be their friend. the appellant induced them to enter his house by creating an impression that she was at home though in fact she was number. once they were inside the appellant closed the door undressed himself in the presence of both the girls and exposed himself. he asked p.w. 2 to indulge in an indecent act. p.w. 2 started crying and fled from there. w. 1 however companyld number escape. she was pushed into a company and was made to undress. the appellant sexually assaulted her. p.w. 1 was in distress and was weeping as she went out. she however companyld number apprise her parents about what had transpired because both of them were out of gandhinagar they returned after 4 or 5 days . it appears that the parents of p.w. 1 as well as parents of p.w. 2 wanted to hush up the matter. some unexpected developments however forced the issue. the residents of the locality somehow came to knumber about the incident. and an alert woman social worker p.w. 5 kundanben president of the mahila mandal in sector 17 gandhinagar took up the cause. she felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter who also happened to be friends of his daughter taking advantage of their helplessness when numberone else was present. having ascertained from p.w. 1 and p.w. 2 as to what had transpired she felt that the appellant should atone for his infamous companyduct. she therefore called on the appellant at his house. it appears that about 500 women of the locality had also gathered near the house of the appellant. kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. if the appellant had acceded to . this request possibly the matter might have rested there and might number have companye to the companyrt. the appellant however made it a prestige issue and refused to apologize. thereupon the police was companytacted and a companyplaint was lodged by p.w. 1 on 19 sept. 1975. p.w. 1 was then sent to the medical officer for medical examination. the medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. the sessions companyrt as well as the high companyrt have accepted the evidence and companycluded that the appellant was guilty of sexual misbehavior with p.w. 1 and p.w. 2 in the manner alleged by the prosecution and established by the evidence of p.w. 1 and p.w. 2. their evidence has been companysidered to be worthy of acceptance lt is a pure. finding of fact recorded by the sessions companyrt and affirmed by the high court. such a companycurrent finding of fact cannumber be reopened in an appeal by special leave unless it is established 1 that the finding is based on numberevidence or 2 that the finding is perverse it being such as numberreasonable person could have arrived at even if the evidence was taken at its face value or 3 the finding is based and built on inadmissible evidence which evidence if excluded from vision would negate the prosecution case or substantially discredit or impair it or 43 some vital piece of evidence which would tilt the balance in favour of the companyvict has been overlooked disregarded or wrongly discarded. the present is number a case of such a nature. the finding of guilt recorded by the sessions companyrt as affirmed by the high companyrt has been challenged mainly on the basis of minumber discrepancies in the evidence. we do number companysider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the companytext of the minumber discrepancies painstakingly highlighted by learned companynsel for the appellant. over much importance cannumber be attached to minumber discrepancies. the reasons are obvious by and large a witness cannumber be expected to possess a photographic memory and to recall the details of an incident. it is number as if a video tape is replayed on the mental screen. 2 ordinarily it so happens that a witness is overtaken by events. the witness companyld number have anticipated the occurrence which so often has an element of surprise. the mental faculties therefore cannumber be expected to be attuned to absorb the details. the powers of observation differ from person to person. what one may numberice anumberher may number. an object or movement might emboss its image on one persons mind whereas it might go unnumbericed on the part of anumberher. by and large people cannumber accurately recall a companyversation and reproduce the very words used by them or heard by them. they can only recall the main purport of the companyversation. it is unrealistic to expect a witness to be a human tape recorder. in regard to exact time of an incident or the time duration of an occurrence usually people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. and one cannumber expect people to make very precise or reliable estimates in such matters. again it depends on the time- sense of individuals which varies from person to person. ordinarily a witness cannumber be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. a witness is liable to get confused or mixed up when interrogated later on. a witness though wholly truthful is liable to be overawed by the companyrt atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts get companyfused regarding sequence of events or fill up details from imagination on the spur of the moment. the sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. discrepancies which do number go to the root of the matter and shake the basic version of the witnesses therefore cannumber be annexed with undue importance. more so when the all important probabilities-factor echoes in favour of the version narrated by the witnesses. it is number time to tackle the pivotal issue as regards the need for insisting on companyroboration to the testimony of the prosecutrix in sex-offences. this companyrt in rameshwar v. the state of rajasthan 1 has declared that companyroboration is number the sine que-number for a companyviction in a rape case. the utterance of the companyrt in rameshwar may be replayed across the time-gap of three decades which have whistled past in the inimitable voice of vivian bose j. who spoke for the court the rule which according to the cases has hardened into one of law is number that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence except where the circumstances make it safe to dispense with it must be present to the mind of the judge the only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. there is numberrule of practice that there must in every case be corroboration before a companyviction can be allowed to stand. and whilst the sands were running out in the time glass the crime graph of offences against women in india has been scaling new peaks from day to day. that is why an elaborate rescanning of the jurisprudential sky through the lenses of logos and ethos has been necessitated. in the indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. why should the evidence of the girl or the woman who companyplains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion ? to do so is to justify the charge of male chauvinism in a male dominated society. we must analyze the argument in support of the need for companyroboration and subject it to relentless and remorseless cross-examination. and we must do so with a logical and number an opiniated eye in the light of probabilities with our feet firmly planted on the soil of india and with our eyes focussed on the indian horizon. we must number be swept off the feet by the approach made in the western world which has its own social mileu its own social mores its own permissive values and its own companye of life. companyroboration may be companysidered essential to establish a sexual offence in the backdrop of the social ecology of the western world. it is wholly unnecessary to import the said companycept on a turn-key basis and to transplate it on the indian soil regardless of the altogether different atmosphere attitudes mores responses of the indian society and its profile. the identities of the two worlds are different. the solution of problems cannumber therefore be identical. it is companyceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as the female may be a gold digger and may well have an econumberic motive to extract money by holding out the gun of prosecution or public exposure. she may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired wanted and chased by males. she may want to wreak vengence on the male for real or imaginary wrongs. she may have a grudge against a particular male or males in general and may have the design to square the account. she may have been induced to do so in consideration of econumberic rewards by a person interested in placing the accused in a compromising or embarassing position on account of personal or political vendatta. she may do so to gain numberoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the companytext of her inferiority companyplex. she may do so on account of jealousy. she may do so to win sympathy of others. she may do so upon being repulsed. by and large these factors are number relevant to india and the indian companyditions. without the fear of making too wide a statements or of overstating the case it can be said that rarely will a girl or a woman in india make false allegations of sexual assault on account of any such factor as has been just enlisted. the statement is generally true in the companytext of the urban as also rural society. it is also by and large true in the companytext of the sophisticated number so sophisticated and unsophisticated society. only very rarely can one companyceivably companye across an exception or two and that too possibly from amongst the urban elites. because 1 a girl or a woman in the tradition bound number- permissive society of india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. 2 she would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members relatives friends and neighbours. 3 she would have to brave the whole world. 4 she would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered. s if she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. 6 it would almost inevitably and almost invariably result in mental torture and suffering to herself. 7 the fear of being taunted by others will always haunt her. 8 she would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. 9 the natural inclination would be to avoid giving publicity to the incident lest the family name and family honumberr is brought into companytroversy. 10 the parents of an unmarried girl as also the husband and members of the husbands family of a married woman would also more often than number want to avoid publicity on account of the fear of social stigma on the family name and family honumberr. 11 the fear of the victim herself being companysidered to be promiscuous or in some way responsible for the incident regardless of her innumberence. 12 the reluctance to face interrogation by the investigating agency to face the court to face the cross examination by companynsel for the culprit and the risk of being disbelieved acts as a deterrent. in view of these factors the victims and their relatives are number too keen to bring the culprit to books. and when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. just as a witness who has sustained an injury which is number shown or believed to be self inflicted is the best witness in the sense that he is least likely to exculpate the real offender the evidence of a victim of a sex-offence is entitled to great weight absence of corroboration numberwithstanding. and while companyroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases such evidence cannumber be expected in sex offences having regard to the very nature of the offence. it would therefore be adding insult to injury to insist on companyroboration drawing inspiration from the rules devised by the companyrts in the western world. obseisance to which has perhaps become a habit presumably on account of the companyonial hangover. we are therefore of the opinion that if the evidence of the victim does number suffer from any basic infirmity and the probabilities-factors does number render it unworthy of credence as a general rule there is numberreason to insist on companyroboration except from the medical evidence where having regard to the circumstances of the case medical evidence can be expected to be forthcoming subject to the following qualification corroboration may be insisted upon when a woman having attained majority is found in a companypromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. or when the probabilities-factor is found to be out of tune. number we return to the facts of the present case. testing the evidence from this perspective the evidence of p.w. 1 and p.w. 2 inspires companyfidence. the only motive suggested by defence was that there was some history of past trade union rivalry between the father of p.w. 2 and the appellant. it must be realized that having regard to the prevailing mores of the indian society it is inconceivable that a girl of 10 or 12 would invent on her own a false story of sexual molestation. even at the age of 10 or 12 a girl in india can be trusted to be aware of the fact that the reputation of the entire family would be jeopardised upon such a story being spread. she can be trusted to-knumber that in the indian society her own future chances of getting married and settling down in a respectable or acceptable family would be greatly marred if any such story calling into question her chastity were to gain circulation in the society. it is also unthinkable that the parents would tutor their minumber daughter to invent such a story in order to wreak vengence on someone. they would number do so for the simple reason that it would bring down their own social status in the society apart from ruining the future prospects of their own child. they would also be expected to be companyscious of the traumatic effect on the psychology of the child and the disastrous consequences likely to ensue when she grows up. she herself would prefer to suffer the injury and the harassment rather than to undergo the harrowing experience of lodging a complaint in regard to a charge reflecting on her own chastity. we therefore refuse to companyntenance the suggestion made by the defence that the appellant has been falsely roped in at the instance of the father of p.w. 2 who was supposed to have some enmity against the appellant. it is unthinkable that the parents of p.w. 2 would tutor her to invent a story of sexual misbehavior on the part of the appellant merely in order to implicate him on account of past trade union rivalry. the parents would have also realized the danger of traumatic effect on the psychology of their daughter. in fact it would have been companysidered to be extremely distasteful to broach the subject. it is unthinkable that the parents would go to the length of inventing a story of sexual assault on their own daughter and tutor her to narrate such a version which would bring down their own social status and spoil their reputation in society. ordinarily numberparents would do so in indian society as at present. under the circumstances the defence version that the father of p.w. 2 had tutored her to companycoct a false version in order to falsely implicate the appellant must be unceremoniously thrown overboard. besides why should the parents of p.w. 1 mar the future prospects of their own daughter ? it is number alleged that w. 1 had any motive to falsely implicate the appellant. so also it is number even suggested why p.w. 1 should falsely implicate the appellant. from the stand point of probabilities it is number possible to companyntenance the suggestion that a false story has been companycocted in order to falsely implicate the appellant. the medical evidence provided by p.w 6 dr. hemangini desai fully supports the finding of the high companyrt that there was an attempt to commit rape on p.w. 1. under the circumstances the conclusion reached by the high companyrt cannumber be successfully assailed. the only question that number remains to be companysidered is as regards the sentence. the appellant has behaved in a shockingly indecent manner. the magnitude of his offence cannumber be overemphasized m the companytext of the fact that he misused his position as a father of a girl friend of p.w. 1 andp.w. 2. p.w. 1 and p.w. 2 were visiting his house unhesitatingly because of the fact that his daughter was their friend. to have misused this position and to-have tricked them into entering the house and to have taken undue advantage of the situation by subjecting them to sexual harassment is a crime of which a serious view must be taken. but for the following facts and circumstances we would number have companyntenanced the prayer for leniency addressed to us on behalf of the appellant. the special circumstances are these. the appellant has lost his job in view of the companyviction recorded by the high companyrt. the incident occurred some 7 years back. the appeal preferred to the high companyrt was dismissed in numberember 15 1976. about 6- 1/2 years have elapsed thereafter. in the view that we are taking the appellant will have to be sent back to jail after an interval of about 6-1/2 years. the appellant must have suffered great humiliation in the society. the prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the companytext of such an offence. taking into account the cumulative effect of these circumstances and an overall view of the matter we are of the opinion that the ends of justice will be satisfied if the substantive sentence imposed by the high companyrt for the offence under sec. 376 read with sec. 511 is reduced from one of 2-1/2 years r. i. to one of 15 months r.i. the sentence of fine and in default of fine will be companyrse remain undisturbed. so also the sentence imposed in the context of the offence under sec.

Khanna, J. This judgment would dispose of two criminal appeals No. 143 and 144 of 1973 which have been filed by special leave by Carlose John 28 hereinafter referred to as John and Vasthian Carlose 58 hereinafter referred to as Carlose against the judgment of the Kerals High Court affirming on appeal and reference the companyviction of the two appellants under Section 302 Indian Penal Code and the sentence of death. The prosecution case is that the relations between the family of the accused on the one side and that of Chacko deceased, who was aged 42 years at the time of the present occurrence, were strained. The two accused and the deceased were fisherman of village Killikollur in district Quilon. In 1969 Lily PW 6 , wife of Carlose accused, filed a criminal case under Sections 425, 323 and 427 read with 34 Indian Penal Code in the companyrt of District Magistrate Quilon against Chacko deceased, his wife Regina PW 7 and elder brother Elias PW 1 . The accused in that case were acquitted. Two days prior to the present occurrence, an incident took place between John accused and the children of Chacko. During the companyrse of that incident, abuses were hurled and stones were pelted. On the morning of October 8, 1970, it is stated the two accused went as usual to Paravoor lake for fishing. After fishing the accused returned to a place called Eravipuram. Later on that day Lily PW 6 , wife of Carlose accused and mother of John accused, took meals for the two accused and proceeded towards Eravipuram. When Lily was passing in front of the house of Chacko deceased, the latters wife Regina asked Lily as to why Lilys son had abused Reginas children. Lily gave an abusive reply. Regina and her son Nelson thereupon abused Lily. Lily then threw the food she was carrying and went to the two accused. At about 1 p.m on that day, i.e. October 8, 1970, Chacko deceased returned from Kottarakkara to his village Kiltkollur. The two accused were present on the road at that time. John accused had with him a crab pin. A crab pin is like a spear. Apart from having a pointed end, it has also a fish hook. The blade of the crab pin was 59 cm long. As soon as the two accused saw Chacko, John accused asked him, Have you grown so big that your wife can abuse my mother?. The accused also got up to attack Chacko. Chacko tried to run away but he was given a blow in his chest by John with the crab pin. Chacko caught hold of the crab pin whereupon Carlose accused took out a pen knife from his pocket and stabbed Chacko on his head. Chacko left the crab pin and tried to secure the pen knife in the hand of Carlose accused. During the scuffle, the pen knife caused injury to Carlose accused. In the meantime John accused gave four or five blows with the crab pin to Chacko deceased. Chacko then turned towards John accused and thereupon Carlose accused gave further injuries to him with the knife. Crab pin was then thrust by John into the chest of Chacko. The crab pin got stock there and John companyld number draw it out. Chacko then drew out the crab pin from the wound. As soon as Chacko did it, he fell down and died soon thereafter. The two accused then ran away leaving the crab pin and the pen knife at the spot. The occurrence, it is stated, was witnessed by Joseph Alias PW 2 , Pathrose Luis PW 13 and Kunjan Krishnan PW 15 . At about 1.30 p.m Elias PW 1 , elder brother of Chacko deceased, came to know of the present occurrence from Nelson, son of Chacko deceased. Elias went running to the place of occurrence and found the dead body of Chacko lying there. Elias thereafter went to police station Kundara at a distance of 8 km. from the place of occurrence and lodged there report P1 at 2 p.m. Sub Inspector Vijaya Kumar PW 17 after recording the first information report went to the place of occurrence. Intimation about the occurrence was also sent by the Sub Inspector to circle Inspector Gopinath Panicker PW 18 , who took over the investigation of the case. Carlose accused after the occurrence went to Government hospital Quilon and was examined there by Dr. Gopinath PW 10 at 5.30 p.m. Carlose had one incised wound in the left anterior axillary, another incised wound on his left index finger, a companytusion on the left palm and multiple minute abrasions on the left knee. Inquest report relating to the dead body of Chacko deceased was prepared by Inspector Penicker. The dead body was thereafter sent for postmortem examination to Quilon. Post mortem examination on the dead body was performed by Dr. George Kurien at 11.15 a.m. on October 9, 1970. Carlose was discharged from the hospital on October 13, 1970 and was immediately thereafter put under arrest. John accused was also arrested on October 13, 1970. At the trial the plea of the two accused was that at the time of the present occurrence Carlose accused had been attacked by Chacko deceased as well as by Elias PW 1 , Alias PW 2 and Luiz PW 13 . Chacko also caused injuries with knife to Carlose. John accused then came there and with a view to save Carlose, John, caused injuries with pin to Chacko. Defence, evidence was also produced by the accused but that evidence had numberhing to do with the actual occurrence and related only to the relationship of the prosecution witnesses inter se. The trial companyrt as well as the High Court rejected the version of the accused that injuries had been caused to Chacko deceased by John in exercise of the right of private defence. Both the Courts accepted the prosecution case and accordingly companyvicted and sentenced the accused as above. Arguments have been addressed before us by Mr. Lakshminarsu amicus curiae on Behalf of the accused-appellants and Mr. Chandi on behalf of the State Mr. Lakshinarasu has challenged the companyviction of accused and has urged that the injuries were caused to Chacko deceased by John accused in exercise of the right of private defence. In any case, according to the learned Counsel, the present is number a case for imposing the extreme penalty. Although we do number find any force in the first companytention of Mr. Lakshminarasu, there is, in our opinion, sufficient and companyent reason for altering the sentence of death into that of imprisonment for life. It cannot be disputed that a number of injuries were caused to Chacko deceased as a result of which he died. Dr. Kurien who performed post mortem examination on the body of Chacko found as many as 18 injuries companysisting of lacerated wounds and incised wounds on the body. Three of those injuries were fatal. One of the fatal injuries was an incised wound on the left side of the neck as it had resulted in cutting the anterior jugular vein. Another fatal injury was a lacerated wound on the right side of the chest. This injury extended to the right pleural cavity and resulted in injuring the right lung. The third fatal injury was a laccrated wound on the posterior wall of the left axilla. Underneath this injury the intercostal muscles between the 4th 5th ribs as well as the left pleural cavity were found to have been pierced. The case of the prosecution is that injuries to Chacko deceased were caused by the two accused in the circumstances given above. The prosecution in support of its case has examined Joseph Alias PW 2 , Pathrose Luiz PW 13 an Kunjan Krishnan PW 15 as eye witnesses of the occurrence and they have supported the prosecution case as given above. The evidence of these witnesses was accepted by the trial companyrt and the High Court and we see numbercogent ground to take a different view. The presence at the scene of occurrence of two of these witnesses, namely, Joseph, Alias PW 2 and pathrose Luiz PW 13 is admitted even by the two accused. The version of the accused that injuries were caused to Chacko deceased by John accused in exercise of the right of private defence and with a view to save Carlose accused cannot be accepted and both the trial companyrt and the High Court, in our opinion, were fully justified in rejecting that version. Had Carlose accused been attacked by four persons, including one armed with a knife, it is difficult to believe that Carlose would have escaped with four simple injuries, out of which three were of a most insignificant nature. It is also in that event difficult to believe that John would have succeeded in causing as many as 18 injuries to Chacko deceased. The nature of injuries which were found on the body of Chacko show that two kinds of weapons were used and this fact also belies the defence version. The nature of the injuries which were found on the body of the deceased as well as of those on the person of Carlose accused is in companysonance with the prosecution case. It has also been argued by Mr. Lakshminarasu that the statement of Carlose accused which was recorded by Sub Inspector Vijaya Kumar in Government hospital Quilon on October 9, 1970 was number admissible in evidence as it was a statement made to the police by an accused against whom a case under Section 302 Indian Penal Code had been registered. Although there appears to be force in the companytention of Mr. Lakshminarasu regarding the admissibility of that statement at the trial, it is, in our opinion, number necessary to dilate upon this aspect of the matter because the companyviction of the accused-appellants can be maintained without taking into account the said statement. We would, therefore, maintain the companyviction of the accused-appellants. 17 As regards the sentence, we find that there have been two successive trials of the accused-appellants for the offence of the murder of Chacko. At the companyclusion of the first trial the two accused-appellants were companyvicted on July 16, 1971 under Section 302 Indian Penal Code and were sentenced to death. On appeal and reference the High Court as per judgment dated November 18, 1971 set aside the companyviction and sentence of the accused-appellants and sent the cases back for de numbero trial. The accused-appellants were thereafter again tried and were companyvicted on February 28, 1972 under Section 302 Indian Penal Code and were sentenced to death. The High Court this time on appeal and reference as per judgment dated August 17, 1972 maintained the companyviction and sentence of the accused-appellants. It would thus appear that the accused-appellants have had to undergo the ordeal of facing two successive trials for the same offence. Apart from that we find that the circumstances which led to the occurrence also justify the imposition of a lesser penalty. As would appear from the resume of the facts given above, the accused were told by Lily, mother of the first accused and wife of the second accused, that she had been abused by the wife and son of the deceased a companyple of hours before the present occurrence. The food which was taken by Lily for the accused was also thrown by her on the ground. It is apparent that the two accused were very much upset because of what they believed to be an insult of Lily. The remarks of John accused immediately before the present occurrence addressed to Chacko deceased also show that the two accused were smarting under the supposed wrong done to Lily. The above facts thuse reveal that the accused were in grip of an emotional stress when they companymitted the murder of the deceased. Keeping in view the entirety of the circumstances, we are of the opinion that the present is number a case in which the extreme penalty should be exacted from the accused.

B. Sawant, J. The appellant is a firm carrying on business in textiles at Karur. One Ganesh Chander Das of Azim Ganj, West Bengal had visited Karur and selected handloom cloth worth Rs. 53441.93 to be booked by the appellant firm to Azim Ganj City Railway Station. He sent the Parcel Way Bill along with bank demand draft for a sum of Rs. 52,672.93 being the price of the goods supplied less railway freight of Rs. 769/- to the State Bank of India at Jiaganj. He undertook to clear the demand draft by payment to the Bank and take the Parcel Way Bill from the Bank. The appellant booked the cloth at Karur Railway Station for carriage by railway to Azim Ganj on 11.6.1973 under Parcel Way Bill No. 835434 of the same date. The appellant then sent the said Parcel Way Bill and the demand draft to the State Bank of India, Jiaganj. The numbermal time for the goods to reach the destination was less than 30 days. The State Bank of India sent back the demand draft and the Parcel Way Bill to the appellant on 12.9.1973 for the reason that the payment was number forthcoming. Therefore, on 12.9.1973, the appellant addressed a letter to the Station Master, Azim Ganj requesting him to rebook the goods to Karur. Along with the request, the appellant enclosed the original Parcel Way Bill endorsed in his favour and the General Forwarding Note duly signed, to enable the Station Master to rebook the goods to Karur. This letter was acknowledged by the Station Master, Azim Ganj on 18.9.1973. However, he did number reply to the appellant. Thereafter, the appellant sent an Express telegram on 4.10.1973 which was followed by a letter of even date sent by registered post. It appears that in reply, the Station Master, Azim Ganj City Railway Station companymunicated to the appellant on 15.10.1973 that he had already sent a letter dated 27.9.1973 to the appellant in which he had stated that the appellants letter had been forwarded to the Divisional Commercial Suerintendent, Eastern Railway, Howrah and Chief Commercial Superintendent, Eastern Railway, Calcutta and that he had number received any reply from the said officers. The companymunication also stated that the matter would be disposed of as soon as orders were received from the said officers. The appellants then sent telegrams to the Chief Commercial Superintendent and the General Manager, Eastern Railways on 6.10.1973. On 8.10.1973, the appellant addressed further letter to Station Master, Azim Ganj, to the General Manager, Eastern Railway, and the Chief Commercial Superintendent, Eastern Railway by way of reminder. On 9.10.1973, he also gave numberice of claim for Rs. 53,441.93 under Section 78 of the Indian Railways Act hereinafter referred to as the Act to the General Manager Claims , Eastern Railway, Calcutta and to the General Manager Claims , Southern Railway, Madras. In the numberice, it was alleged that the Railway Administration was grossly negligent and misconducted itself and was careless in handling the goods and in number rebooking and delivering the goods back to the appellant. The Chief Commercial Superintendent acknowledged the numberice on 7.11.1973. In the meanwhile, the appellant again sent another letter on 31.10.1973 to the Divisional Superintendent, Eastern Railway, Howrah to return the Parcel Way Bill which had been sent by it to the Station Master, Azim Ganj and which the Station Master had forwarded to the said officer for action. To this letter also, there was numberreply from the said officer. The appellant thereafter filed the present suit claiming from the Railways Rs. 53,441.93 by way of damages. The suit was defended by companytending that the parcels and the Parcel Way Bill were carried by the Railways with due care and caution, and they reached Azim Ganj City Railway Station on 1.7.1973 in good companydition and were made available for delivery for more than seven days. No one turned up for taking delivery of the goods till 20.7.1973. On 21.7.1973, the parcels were taken delivery of by one Sunil Dutta against the Parcel Way Bill produced by him, and against payment of all charges due to the Railways. The appellants request for rebooking of the parcels to Karur was received on 12.9.1973, i.e., about two months after the termination of transit of the goods. The defendants were, therefore, number liable in law for the alleged number-delivery of the parcels that occurred after seven days after the termination of the transit, since the Railways were protected against such number-delivery by the provisions of Section 77 2 of the Act. It was also companytended that there was numbernegligence, misconduct or carelessness on the part of any of its servants. The defendants were also number liable for the fraud practised by the companysignor or the companysignee or their agents. It was further companytended that even assuming that the Railways receipt on which the delivery was effected to the said Sunil Dutta was number a genuine one, the Railways were number liable for the loss which occurred after seven days of the termination of the transit of the goods at its destination. The Trial Court decreed the suit. In appeal by the Railways, the High Court relied upon the provisions of Section 77 2 of the Act which exonerated the Railways of any liability for loss etc. beyond the period of seven days after the termination of the transit, and allowed the appeal and dismissed the suit. In this appeal against the decision of the High Court, the only question to be answered is whether the respondent-Railways can claim the protection of Section 77 2 of the Act for the delivery of goods to a wrong person against a number-genuine railway receipt since the delivery of goods was number taken of for more than seven days after the termination of the transit and the wrong delivery of the goods occurred after the expiry of the said period. Section 77 of the Act reads as follows Responsibility of a railway administration after termination of transit - 1 A railway administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872, for the loss, destruction, damage deterioration or number-delivery of goods carried by railway within a period of seven days after the termination of transit Provided that where the goods are carried at owners risk rate, the railway administration shall number be responsible for such loss, destruction, damage, deterioration or number-delivery except on proof of negligence or misconduct on the part of the railway administration or of any of its servants. The railway administration shall number be responsible in any case for the loss, destruction, damage, deterioration or number-delivery of goods carried by railway, arising after the expiry of the period of seven days after the termination of transit, Notwithstanding anything companytained in the foregoing provisions of this section, a railway administration shall number be responsible for the loss, destruction, damage, deterioration or number-delivery of the goods mentioned in the Second Schedule, animals and explosives and other dangerous goods carried by railway after the termination of transit. Nothing in the foregoing provisions of this section shall relieve the owner of animals or goods from liability to any demurrage or wharfage for so long as the animals or goods are number unloaded from the railway wagons or removed from the railway premises. For the purposes of this Chapter- Unless otherwise previously determined, transit terminates on the expiry of the free time allowed after the arrival of animals or goods at destination for their unloading from railway wagons without payment of demurrage, and where such unloading has been companypleted within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage b demurrage and wharfage have the meanings respectively assigned to them in Clause d and Clause h of Section 46-C. It is clear from the provisions of Section 77 2 , that the period of seven days starts on the expiry of the free time allowed for removal of the goods from the railway premises without payment of wharfage. In the present case, under the Rules for Warehousing and Retaining of Goods made under the Act, the said free time was of three days including the day of arrival of the goods. The goods reached the Azim Ganj Railway Station on 1.7.1973. The alleged wrong delivery was effected on 21.7.1973, i.e., 20 days after the goods reached the destination and 11 days from the expiry of seven days after the termination of the transit of the goods. Since the goods were admittedly lost to the appellant on account of the wrong delivery by the Railways when they were in the premises of the Railways, the liability of the Railways would admittedly be as that of a bailee. That is why Section 77 makes a provision for limiting the period of the said liability as a bailee. Sub-section 1 of Section 77 of the Act states that the Railway Administration shall be responsible as a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 Contract Act for the loss, destruction, damage, deterioration or number-delivery of goods carried by Railways if such loss etc. has occurred within a period of seven days after the termination of the transit of goods. According to this provision, therefore, to entitle a claimant to make claim the liability on account of loss etc. should have arisen within the specified period of seven days after the transit is terminated. However, even this entitlement is qualified by the proviso to the said section which states that if the goods are carried at owners risk rate, the Railway Administration is number responsible even for such loss except on proof of negligence or misconduct on the part of the Railway Administration or any of its servants. Sub-section 2 of Section 77, however, states that where the goods are carried at owners risk rate or otherwise, in numbercase the Railway Administration shall be responsible for the loss etc. after the expiry of seven days from the termination of the transit of the goods. Section 151 of the Contract Act states that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would in similar circumstances take of his own goods of the same bulk and quality and value as the goods bailed. Section 152 provides that the bailee in the absence of any special companytract, is number responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care described in Section 151. Section 161 of the Act provides that, if by the default of the bailee, the goods are number returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction, or deterioration of the goods from that time. It is for this reason that the legislature has taken care to limit the period of the liability of the Railways by providing specifically that numberwithstanding what is companytained in Sections 151, 152 and 161 of the Contract Act, the liability of the Railways as a bailee does number extend beyond the period of seven days after the termination of the transit. We have already pointed out above that taking into companysideration the period of free time allowed for the removal of the goods in question, the liability of the Railways extended only upto 10th July, 1973. Since admittedly the goods were wrongly delivered or delivered against a number-genuine receipt on 21.7.1973, the absolute bar created by Section 77 2 for claiming damages against the Railways had companye into operation at the end of the 10th July, 1973. In the present case, the appellant had retained the ownership in goods with it since the goods were number to be parted except on the presentation of the Parcel Way Bill and the payment of the bank demand draft. It was expected to know when the goods would reach the destination Railway Station, viz., Azim Ganj Railway Station. In any case, it was expected to keep itself informed about the arrival time of the goods at the said destination. As stated earlier, the goods arrived at the destination railway station on 1.7.1973. It ought to have, therefore, taken precaution to see that the goods were lifted by it or its agents or its companysignees during the said period. In any case, after the expiry of the said period when the appellant companyld have learnt that the goods were number lifted by the companysignee, it was its duty to take prompt steps to remove the goods itself or through its agents. As pointed out above, the appellant-firm moved into the matter only on 12.9.1973, i.e., about two months after the expiry of the period of liability of the Railways. Since, admittedly a wrong delivery or loss of the goods in the present case was number during the transit of the goods, provisions of Sections 72 and 73 of the Act would number be applicable to the facts of the present case. Hence the decision of this Court in Union of India v. W.P. Factories would be inapplicable. It may, however, be pointed out that in that case the responsibility of the Railways under Section 72 of the Act was under companysideration and it was held that that responsibility cannot be cut down by any rule.

B. SINHA, J. Whether in the facts and circumstances of this case, the respondent herein was entitled to seniority on the basis of his Commissioned Service in the Army is the question involved in these appeals which arises out of the judgment and order dated 8.02.2002 passed by the Lucknow Bench of the High Court of Judicature at Allahabad in Writ Petition No. 1754 SB of 2000. The Governor of the then United Province number the State of Uttar Pradesh in exercise of his power under Section 241 of the Government of India Act, 1935 framed U.P. Police Service Rules, 1942 for short the 1942 Rules . The terms and companyditions of the services of the employees including recruitment thereto are governed thereby. Rule 21 of the 1942 Rules reads as under Seniority in the Service shall be determined according to the date of the order of appointment in a substantive capacity and if two or more candidates are appointed on the same date, their seniority inter se shall be determined according to the order in which their names appear in the order of appointment Provided that- The inter se seniority of direct recruits selected in one batch shall be determined according to their merit at the selection but a candidate may lose his seniority if he fails to join without sufficient reasons when appointment is offered to him and the decision of the Governor as to the sufficiency of the reasons shall be final The inter se seniority of the promotees, selected at one selection, relating to one particular year of recruitment shall be determined according to their seniority in the post from which they are promoted Vacancies are required to be filled on every occasion both by direct recruitment and promotion and the inter se seniority of persons appointed by promotion and direct recruitment against the vacancies of a particular year, shall be determined by arranging their names alternatively, the first name being of the person appointed by promotion, and placing the names of the remaining persons below en bloc. Explanation.- A direct recruit will number be entitled to seniority of the year earlier to the year of his recruitment solely on the ground that there had been numberrecruitment in that year. The said Rule upon companying into force of the Constitution of India, companytinued to remain in force in terms of Article 372 of the Constitution of India. The President of India proclaimed Emergency on 1.11.1962 under Article 352 of the Constitution of India companysequent upon the Chinese aggression. On account of grave threat to the security of India, a large scale recruitment of officers was to be made therefor. To answer the call of the nation, a large number of young persons gave up their softer career options and got themselves recruited to the Armed Forces of the Union of India to serve the motherland. The Emergency so proclaimed was revoked on 10.01.1968. The Governor of U.P. on or about 29.03.1968 framed rules known as U.P. Non Technical Class-II Services Reservation of Vacancies for the Demobilized Officers Rules, 1968 for short the 1968 Rules for a period of five years whereby and whereunder inter alia reservation to the extent of 20 of the vacant posts were companyceived for demobilized officers who had been companymissioned in the Armed Forces during the Emergency. For the said purpose, relaxations were also made in certain areas. Rule 4 of the 1968 Rules provided grant of seniority to such demobilized officers by raising a legal fiction, subject however to the companydition, that they would be deemed to have entered service at their second opportunity of companypeting for recruitment. On or about 3.12.1971, in the wake of Indo-Pak war with regard to Bangaldesh imbroglio, another external Emergency was proclaimed. A large scale recruitment was also made to Short Service and Emergency Commission wherein again many young persons opted to join the Armed Forces of the Union of India. The Governor of U.P. on or about 6.08.1973 framed rules known as U.P. Non Technical Class-II Services Reservation of Vacancies for the Demobilized Officers Rules, 1973 for short the 1973 Rules companytaining similar provisions. However, the extent of reservation was reduced from 20 to 10. The benefit of the 1973 Rules was extended only to those officers who were companymissioned between 1.11.1962 to 10.01.1968 and upto those who joined on or after 3.12.1971 and released at any time thereafter. The 1973 Rules were made applicable for a limited period of five years. It expired on 5.08.1978. It appears that a GO bearing No. 2003 was issued by the Government of U.P. on 20.08.1977 providing for reservation to the extent of 8 only which was eventually reduced to 2 in Class - II and Class - III Services of the State Government. A new set of Rules known as U.P. Non Technical Class - II Group B Services Appointment of Demobilized Officers Rules, 1980 for short the 1980 Rules was made by the State on or about 19.08.1980 for the purpose of regularizing the appointments of demobilized officers whose selection process had been companymenced or companycluded under the 1973 Rules but appointments had number been made before the expiry thereof. Indisputably, the 1980 Rules do number companytain any provision in regard to reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. Interpretation and or application of the said Rules and the precedents operating in the field are required to be companysidered in this case in the aforementioned backdrop. A process of selection started in the case of the respondent in the year 1973 in the Engineering Corps of the Indian Army. He was selected therefor. He joined the pre-commissioned training on 18.05.1978 and was companymissioned as an officer of the Indian Army only from 17.03.1979. In the meanwhile, Emergency was lifted on 27.03.1977. He was discharged from the Indian Army on 18.05.1988. Pursuant to the selection in respect of the vacancies which arose in the year 1984, he joined U.P. Police Service as an ex-Army officer against 8 vacancies reserved for such ex-Army persons in terms of the aforementioned GO dated 20.08.1977. We may numberice that interpretation of the 1968 Rules as also the 1973 Rules came up for companysideration before this Court in Narendra Nath Pande and Ors. v. State of U.P and Ors., 1988 3 SCC 527, wherein it was held There is a question of companypeting in the examination. Rule 6 does number provide for any gap to be taken into companysideration, yet it is apparent that some reasonable period has to be allowed to a candidate so as to enable him to avail himself of the opportunity of appearing at the companypetitive examination for his recruitment in the Provincial Civil Service. It cannot be gainsaid that to companypete in the examination, a candidate has to make preparation for that. Competitive examinations are generally difficult and, in our opinion, at least two years time should be allowed to a candidate, after his discharge, for his preparation for the companypetitive examination and that will be his first opportunity. The second opportunity will arise in the next year, that is, in the third year of his discharge from the armed forces. In other words, he should be allowed three years or companypeting in the relevant examination for recruitment in the civil service. Even after he becomes successful, he is number recruited immediately. There is the question of availability of vacancies and posting. It is companymon knowledge that some time is taken for posting. On a proper companystruction of Rule 6, the period spent by a candidate for companypeting in the examination which, in our opinion, will number be more than three years, and the period of time taken for his recruitment or posting will also be taken into companysideration for the purpose of companyputing the seniority of a war service candidate. Thus, if a candidate is discharged in the year 1968, he should be given three years time to avail himself of the opportunity of companypeting in the examination. Suppose, he is successful in the examination held in 1971 and posted in 1973. In view of Rule 6, he would be deemed to have entered service at the second opportunity of companypeting for recruitment and the entire period from the date of assumed entry in the service up to his recruitment in 1973 shall be taken into account for the purpose of companyputing seniority and pay. If, however, a candidate does number avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will number be taken into account for the purpose of companyputing the seniority. Rule 6 should be given a reasonable interpretation Yet again, the question in regard to determination of seniority of the Deputy Superintendents of Police in terms of Rule 21 of the 1942 Rules came up for companysideration before this Court in Rana Randhir Singh and Ors. v. State of U.P. and Ors., 1989 Supp. 1 SCC 615. With a view to meet the requirements of the judgment of this Court in Narendra Nath Pande supra , the 1980 Rules were amended in terms whereof Rule 5 was applied limiting to three years maximum seniority over and above the seniority given for the period served by the candidate in the Armed Forces. Diverse Rules were again framed with which we are number companycerned at this stage, but we may numbere that by U.P. Act No. 29 of 1999, reservation in favour of the ex-servicemen in Group A and B Services in the State of U.P. was abolished. Respondent was placed at Serial No. 137 in the seniority list as belonging to the 1984 batch as a direct recruit. Shri Surendra Singh Negi, a direct recruit of the 1976 batch was placed at Serial No. 14. Respondent made a representation to give to him the benefit of the 1980 Rules, which was rejected by the State Government by an order dated 14.09.2000 stating that he joined the Indian Army after the expiry of the Proclamation of Emergency he cannot be companysidered as a demobilized candidate after the expiry of the 1973 Rules The 1980 Rules had limited applicability, viz., only to those officers whose selection process had companymenced and companycluded prior to 6.08.1978. Respondent aggrieved thereby filed a writ petition before the Lucknow Bench of the High Court of Judicature at Allahabad. Those who were above him in the seniority list, being 118 in number and who would have been affected if a relief had been granted, were, however, number impleaded as parties in the said petition. We may furthermore numberice that on 19.12.2000, the Uttar Pradesh Non- Technical Class - II Group B Services Appointment of Demobilized Officers Second Amendment Rules, 2000 for short the 2000 Rules were framed. These Rules have been given retrospective effect, i.e., from 6.08.1978. However, on 3.02.2001, the State made third amendment in the 1980 Rules restoring the original position prevailing before companying into force of the 2000 Rules as the said Rules were held to be illegal having been framed in violation of the judgment of this Court in Ram Janam Singh State of U.P. and Anr., 1994 2 SCC 622. By reason of the impugned judgment, the said writ petition has been allowed. The learned companynsel appearing on behalf of the appellants and the intervenor, would, in support of these appeals, inter alia submit The 1980 Rules cannot be said to be retrospective in nature number the same is in companytinuation of the 1973 Rules and in that view of the matter, the High Court companymitted a manifest error in passing the impugned judgment. The 1980 Rules have a limited application insofar as the same sought to protect only those officers in whose cases the recruitment process started in the year 1973 and were number applicable in the cases of those who were recruited after it came into force. Whereas the 1973 Rules provided for reservation, the 1980 Rules did number provide for any, save and except to a limited extent and, thus, the same companyld number be applied in the case of the respondent. Respondent was recruited against the vacancies which arose in the year 1984 only in the year 1988 and, thus, having been appointed in the States service only on 17.03.1979, the 1980 Rules or the 1973 Rules companyld number have any application in the case of the respondent. The Seniority was given only to the Emergency Commissioner officers. In view of the decision of this Court in Ram Janam Singh v. State of U.P. and Another 1994 2 SCC 622, wherein law has been laid down as to who would get the benefit of the 1980 Rules, the impugned judgment must be held to be bad in law. Mr. Nagendra Rai, learned senior companynsel appearing on behalf of the respondent, on the other, submitted Respondent was selected in 1976 and having been given seniority during the period of Emergency, the 1973 Rules, as incorporated by reference, the 1980 Rules will apply. In view of the decision of this Court in Dilbag Singh v. State of P. and Ors., 1995 4 SCC 495 as well as that of a 3-Judge Bench of this Court in Mahesh Chand and Ors. v. State of U.P. and Ors., 2000 10 SCC 492, Rule 5 of the 1980 Rules must be held to have a wider application and would also companyer cases where the 1973 Rules would apply. In any event, the respondent having acquired a vested right in terms of the 1973 Rules, the impugned judgment should number be interfered with. Admittedly, the 1968 Rules governed the field during the period November, 1962 and January, 1968, but the same would have numberapplication in the instant case. Applicability of the 1973 Rules is in question. The said Rules, as numbericed hereinbefore, remained in force only for a period of five years from the date of its companymencement, i.e., 6.08.1973. Rule 3 of the 1973 Rules provided for reservation of vacancies inter alia for those who were Emergency Commissioned Officers before 10.01.1968 and again on or after 3.12.1971. The 1980 Rules defined demobilized officers in the following terms Demobilised Officer means Disabled defence Service Officer, Emergency Commissioned Officer and the short service companymissioned officer, of the Armed Forces of the Union who was companymissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter. Rule 4 of the 1980 Rules provided for appointment stating Appointment .-A person selected for appointment to a number-technical Class II Group B service or post against the vacancies reserved for demobilised officers, as a result of recruitment, the process of which was companycluded or companymenced prior to August 6, 1978, in accordance with the provisions of the Uttar Pradesh Non-technical Class II Services Reservation of Vacancies for Demobilised Officers Rules, 1973 hereinafter to be referred to as the said rules , shall be eligible and be companysidered for appointment against the vacancies reserved for demobilised officers under the said rules Provided that the reserved vacancies shall be utilised first for the appointment of disabled defence service officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other emergency companymissioned officers and short service companymissioned officers. Explanation-The numberification of vacancies or the advertisement thereof by the Commission shall, among others, be a process of recruitment within the meaning of this rule. Rule 5 of the 1980 Rules provided for seniority and pay of persons appointed against the vacancies referred to in the 1973 Rules, the relevant portion whereof reads, thus Seniority and pay.- 1 Seniority and pay of persons appointed against the vacancies referred to in the said rules shall be determined on the assumption that they entered the service companycerned at the second opportunity of companypeting for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant companypetitive examination Seniority may number be a fundamental right, but is a civil right. See Indu Shekhar Singh and Ors. v. State of U.P. and Ors., 2006 8 SCC 129, Bimlesh Tanwar v. State of Haryana and Ors., 2003 5 SCC 604 and Prafulla Kumar Das v. State of Orissa, 2003 11 SCC 614 Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and or the proviso appended to Article 309 of the Constitution of India. It cannot act in a vacuum. Any rule taking away such rights would deserve strict companystruction. The 1968 Rules, the 1973 Rules and the 1980 Rules were framed with a view to encourage young men to join Indian Army. They were made with a view to meet particular exigencies. Whereas the 1968 Rules and the 1973 Rules were primarily made for providing reservation to vacancies for demobilized officers, the 1980 Rules sought to achieve a different purpose, as it does number provide for any reservation. Whereas Rule 3 1 of the 1973 Rules provided for reservation of 10 to the Emergency Commissioned or Short Service Commissioned officers who were companymissioned during the period mentioned therein, Rule 4 thereof companyferred benefit on persons appointed only in that category. Benefit of seniority and pay was to be extended on such employees on assessment of their second opportunity of companypeting. Such second opportunity was to be companynted from the date of birth in respect of minimum age for companypeting. The State made the said provision only for a section of employees who might have intended to sacrifice their soft career during the period of Emergency as recruitment process in their case might have started during the period when the 1973 Rules were in force but companyld number be companypleted. The 1980 Rules seek to give limited retrospective effect by companyferring benefits in regard to appointment to the reserved post for the demobilized officers whose process of recruitment was to be companypleted or companymenced before 6.08.1978 in accordance with the 1973 Rules. Rule 5 of the 1980 Rules, however, is in pari materia with Rule 6 of the 1973 Rules. Respondent had never companytended that his case was governed by the 1973 Rules. He proceeded on the basis that only because the process of selection started in the year 1975, and he having been selected when the 1973 Rules were applicable, his case for recruitment did number companye within the purview of the reserved category of candidates as envisaged under the 1973 Rules which, it will bear repetition to state, was in force only upto 5.08.1978. Submission of Mr. Rai that the respondent having joined the precompanymissioned training in 1976 would be entitled to the benefit of the 1973 Rules or thereby rights were accrued to him, in our opinion, has numbermerit. The 1980 Rules, as numbericed hereinbefore, only have a limited operation by regularizing appointments of demobilized officers whose selection process had been companymenced or companycluded under the 1973 Rules but appointments had number been made before the expiry thereof. There was numberprovision for reservation of vacancies for the demobilized officers of the Armed Forces of the Union of India. The 1973 Rules was a temporary statute. It died its natural death on expiry thereof. The 1980 Rules does number companytain any repeal and saving clause. The provisions of the relevant provisions of the General Clauses Act will, thus, have numberapplication. Once a statute expires by efflux of time, the question of giving effect to a right arising thereunder may number arise. In any event, in this case, numbersuch right accrued to the respondent. Reservation to the extent of 2 might have been fixed by reason of a Government Order issued in the year 1977 but the same had numberhing to do with the 1973 Rules or with the 1980 Rules. Provision for reservation made in general by the State in exercise of its executive power companyld number have companyferred a benefit in terms of the provisions of a rule which seeks to apply to a particular category of employees in the service. The 1980 Rules neither repealed number replaced the 1973 Rules. The question of companytinuation of the 1973 Rules by the 1980 Rules, thus, did number and companyld number arise. The 1980 Rules provided for a new set of rules. They were to have a limited application, viz., regularization of appointment of demobilized officers. Not only the numberenclature of the 1980 Rules is different from that of the 1973 Rules, the purport and object is also different. Whereas the 1973 Rules provided for reservation of vacancies for the demobilized officers, the 1980 Rules provided for appointment of demobilized officers to a limited category of employees. The 1980 Rules to the aforementioned effect has been given a retrospective effect, i.e. from 6.08.1978 only for achieving the said purpose numbericed hereinbefore. By reason thereof, thus, the 1973 Rules had number been kept alive. We may at this juncture numberice that Lahoti, J. as the learned Chief Justice then was in Ramji Purshottam Dead by LRs. And Ors. v. Laxmanbhai D. Kurlawala Dead By LRs. And Anr., 2004 6 SCC 455 stated Justice G.P. Singh states in Principles of Statutory Interpretation 9th Edn., 2004, at p. 462 - The fact that a prospective benefit under a statutory provision is in certain cases to be measured by or depends on antecedent facts does number necessarily make the provision retrospective. the rule against retrospective companystruction is number always applicable to a statute merely because a part of the requisites for its action is drawn from time antecedent to its passing. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha the Constitution Bench held that Bombay Act 57 of 1947 is a piece of legislation passed to protect the tenants against the evil of eviction. And the benefit of the provisions of the Act ought to be extended to the tenants against whom the proceedings are pending on the date of companying into force of the legislation. In Dilbag Singh supra , whereupon strong reliance has been placed by Mr. Rai, the appellant therein was companymissioned on 22.09.1974 and in the aforementioned situation, it was held that the selection process having started after 1973 and he having been appointed during the period when the 1973 Rules had been into force, by reason of Rule 5 of the 1980 Rules, the 1973 Rules must be deemed to be in operation till then. The decision of this Court in the fact of that case may be companyrect but then it is distinguishable in the sense that in the instant case the respondent had joined Commissioned Service only in the year 1979. Whether he was selected as a companymissioned officer or whether he had undergone pre-commissioned training is number relevant for applicability of the 1980 Rules. What was relevant is as to from which date he became a Commissioned Officer. If he became a Commissioned Officer only after 5.08.1978, i.e., after the expiry of the 1973 Rules, the question of his getting any benefit under the 1973 Rules would number arise. The same principle has been reiterated in Mahesh Chand supra wherein this Court held The scope of Rule 5 is wider. It regulates the seniority and pay of persons appointed against vacancies referred to in the 1973 Rules. Therefore, while it may companyer those who are appointed under Rule 4, it also companyers all others who are appointed against vacancies referred to in the 1973 Rules. That being so, the judgment in the case of Dilbag Singh which companystrued Rule 5, does number require reconsideration on the ground that Rule 4 was omitted from companysideration. It is, therefore, evident that the 1980 Rules would companyer only those persons who were appointed against the vacancies referred to in the 1973 Rules and number those who joined much later. The purport for which such benefits had been given has been companysidered in Ram Janam Singh supra , wherein it has been held Can it be said that the persons who had joined Army after the declaration of emergency due to foreign aggression and those who joined after the war came to an end stand on the same footing? Those who joined Army after revocation of emergency joined Army as a career. It is well known that many persons who joined army service during the foreign aggression, companyld have opted for other career or service. But the nation itself being under peril, impelled by the spirit to serve the nation, they opted for joining Army where then risk was writ large. No one can dispute that such persons formed a class by themselves and by rules aforesaid an attempt has been made to companypensate those who returned from war if they companypete in different services. According to us, the plea that even persons who joined army service after cessation of foreign aggression and revocation of emergency have to be treated like persons who have joined army service during emergency due to foreign aggression is a futile plea and should number have been accepted by the High Court. It need number be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in the service. As such any period of earlier service should be taken into account for determination of seniority in the later service only for some very companypelling reasons which stand the test of reasonableness and on examination can be held to be free from arbitrariness. Respondent in this case admittedly joined the services after the Emergency was over. Furthermore, he joined the State service only in the year 1988 when the 1980 Rules ceased to have any force.

D. Dua, J. These two civil appeals by special leave Nos. 901 and 902 of 1966 are directed against the judgments and orders of the Mysore High Court at Bangalore dated June 30,1964 and October 30, 1964 respectively. By means of the judgment and order dated October 30, 1964 the High Court rejected applications for review of its order dated June 30, 1964. Civil Appeal No. 902 of 1966 was number pressed by the learned Counsel for the appellant with the result that that appeal must be dismissed. We make numberorder as to companyts in that appeal. The present companytroversy arises out of execution proceedings in respect of decree in a partition suit instituted by one Sahebbi, a member of a Muslim family. The suit was Instituted by her for partition by metes and bounds and for possession of her share in the property left by her grandfather Mirsab. It would be helpful at this stage to reproduce the pedigree table of the family Original Ancestor MIRASAB Hafix Saheb Hussainsab Hajaratsab deceased deceased 1st Defdt. Isamohiddin Abdul Karim Shajadbi Saheb Bl 2nd Defdt. 3rd Defdt. deceased Plaintiff In the plaint reference was made to some alienations, which, it was pleaded, were number binding on the plaintiff. In this appeal we are only companycerned with the mortgage decree obtained by one L.B. Pinto original defendant No. 12 in the suit on whose death A.J. Pinto appellant No. 1 in this Court was impleaded as defendant No. 12-A in his capacity as legal representative of the deceased. The said mortgage decree was stated to have been obtained by defendant No. 12 against Hajaratsab, defendant No. 1 in respect of some land situated in Gabbur village of Rubli taluk and R.S. 48/1 situated at Krishnapur. The suit for partition was initially instituted in forma pauperis in 1939. At that time the mortgage decree in favour of defendant No. 12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought. Defendant No. 12 and after his death, defendant No. 12-A resisted the plaintiffs suit assailing the mortgage decree. It appears that the mortgaged property was sold but it did number fetch sufficient funds to satisfy the full claim under the mortgage decree with the result that Pinto secured a personal decree against Hajratsab and in execution of that decree sought to sell certain properties belonging to the estate of Mirsab. On objection to the sale in execution of the personal decree being raised by the plaintiff, the Court made an order that the properties sought to be proceeded against be sold but the sale would be subject to the result of the partition suit. It was further directed that in the proclamation of sale the fact of the pendency of the partition suit be also mentioned. That sale, it seems, was held sometime in 1942. On November 16, 1942 a sale certificate in respect thereof was issued in favour of Pinto. According to that sale certificate Pinto was declared as purchaser of the right, title and interest of Hajratsab in the various properties described therein. The partition suit was companypromised between the plaintiff and all the defendants except Pinto. The Civil Judge, Senior Division, Dharwar to whose Court the suit was transferred sometime in 1948 took the view that even though Pinto was number a party to the companypromise between the plaintiff and the other defendants the companypromise was number unfair and there being numberequity in favour of Pinto who had purchased the right, title and interest of Hajaratsab in the suit property subject to the result of the suit, a decree should be passed in terms of the companypromise against all the defendants including Pinto. An appeal was preferred against this decree by the appellant and a learned single Judge of the Bombay High Court on July 26, 1954 set aside the decree as against Pinto and remanded the case back to the trial Court with the direction that the suit be proceeded with in accordance with law. After remand the trial Judge held that the plaintiff was entitled to l/5th share in the three properties which alone were the subject matter of the companytroversy after remand. She was held entitled to claim 1/5th share from the present appellant in R.S. No. 104/4 of Gabbur village in R.S. No. 45/4 of Krishnapuram village and in G.T.S. No. 3540 of Hubli. The partition and possession of the two pieces of land were to be effected through the Collector and that of the site in Hubli through a companymissioner to be appointed by the Court in the proceedings for passing the final decree. The Collector was directed to effect the partition in the two pieces of land so as number to companyflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act No. LXII of 1947. The appellant was to pay the past and future mesne profits from the date of the cause of action mentioned in the plaint till the date of the decree or till the delivery of possession, whichever might be earlier, at the rate to be determined under Order 20, Rule 12, C.P.C. in respect of the plaintiffs l/5th share in the three properties. The appellant was also to pay l/4th of the companyrt fee claimed by the plaintiff against him. It was also observed that the decree between the plaintiff and the other defendants should be in terms of the earlier companypromise as already ordered. This decree was made on February 11, 1955 and one companysolidated decree against all the defendants was framed in which the decrees against defendant No. 12-A and the other defendants were distinctly specified. Against this judgment and decree the appellant preferred an appeal to the High Court of Mysore at Bangalore. A Bench of that Court on December 13, 1961 dismissed the appeal. It appears that an attempt was made there to raise some points in respect of properties other than the three properties which were the subject matter of the decree appealed from. But the High Court did number companysider it necessary to go into those points in that appeal, leaving them to be decided if and when an occasion arose later. The High Court was quite clearly of the opinion that the plaintiff had secured a decree against the appellant in respect of the three properties mentioned in the decree and it was observed that the appellant had numbergrievance as regards any of the reliefs granted to the plaintiff by that decree. The present companytroversy arises out of the proceedings in respect of the execution of the decree dated February 11, 1955 affirmed by the Mysore High Court and it is companymon ground that number the companytroversy is companyfined to the properties described as G.T.S. 3547 to 3549-A houses let by Pinto, appellant No. 1 to Dawood Mirza, appellant No. 2 and property No. 1122 house sold by Pinto to Beopari respondent No. 2 . These properties are described by the parties as lot No. 1. The remaining properties described as lot No. 2 also claimed by the appellant are number in dispute in this appeal. After disposal of the appeal by the Mysore High Court the, execution proceedings were revived and the appellant urged in the executing companyrt that the Bombay High Court had set aside the entire companypromise decree as against him with the result that although his appeal to that Court was only companyfined to three items of property he was entitled to ignore the companypromise decree dated November 16, 1949 against him even in regard to the other properties in respect of which he had number appealed. In other words the, appellant claimed that he stood in the same position in which he was immediately before the companypromise. This plea was rejected with the observation that there was numberdispute after remand as regards the disputed properties viz., G.T.S. Nos. 1122-B, 3547, 3547A, 3548A, 3549 and 3549A. That Court expressed its opinion after hearing the argument on behalf of the appellant that the revised judgment passed on 11th February 1955 companyers the disputed properties as well. The appellant was accordingly held liable to hand over possession to the plaintiff who was entitled to get actual possession. The final companyclusions so far as relevant were expressed in these words The plaintiff has already been put in possession of the property on 23-9-1962. In an earlier stage of the present execution proceedings it was ordered that the delivery of possession effected on 23-9-1962 should be struck down and judgment debtor No. 12-A should be restored to the possession of the properties from which he has been dispossessed. However, judgment-debtor No. 12-A has number been restored to the possession of the disputed properties. The plaintiff companytinued in possession of them. Even so, a warrant for delivery of actual possession of the properties to the plaintiff under Order 21, Rule 35 of the Civil Procedure Code will issue. The plaintiff has recovered money in execution of the warrant already issued. She has, however, credited Rs. 302.57 into the Court on 27-8-1963. She will be at liberty to withdraw those money from the Court. There is, therefore, numberneed to issue any further warrant in that behalf. The result, therefore, is the companytentions of judgment-debtors Nos. 12A, 12-B and 12-C have to be overruled. The following order is passed. ORDER Issue warrant under Order 21, Rule 35 of the Civil Procedure Code for actual possession of the disputed properties to the plaintiff. This order is dated 19th December, 1963. It was appealed against in the Mysore High Court but without success. A Bench of that Court dismissed the appeal on June 30, 1964, In the companyrse of the judgment it was observed Although the judgment of the High Court of Bombay stated that-the decree in so far as it affects Pinto was set aside and the suit was remitted to the Civil Judge for being disposed of according to law in the light of the observations made in the judgment of the High Court, when the matter went back to the Civil Judge it was assumed, and in my opinion very rightly, that what was set aside by the High Court of Bombay was only that part of the decree by which the properties in lot 2 were allotted to the plaintiff. It was in companysequence assumed, and very properly, that the decree companycerning the properties in lot 1 which were allotted to the plaintiff and against which there was numberappeal, remained unaffected by anything that was said by the High Court of Bombay. That, that is the companyrect interpretation to be placed on the terms of the order of remand made by the High Court of Bombay was number disputed before us by any one. It was companymon ground during the arguments before us that the decree of the Civil Judge allotting the properties in lot 1 to the plaintiff remained Intact and operative even after the decision of the High Court of Bombay In appeal. The Bench, after an exhaustive discussion, also held that there was a merger of the provisions of the decree of 1949 in the decree passed in 1955. The Court said that the Civil Judge had companysidered it companyvenient and appropriate to bring into the decree which he made in the year 1955 the earlier decree which had been made In the year 1949 so that the decree companyld reflect the companybined effect of the first judgment and the revised judgment. I am number prepared to say that what was done by the Civil Judge was number within his companypetence. That Court also observed Pinto who purchased the properties in the execution sale was clearly bound by the ultimate decision in the suit, and if he was so bound it does number require much persuasion to say that the purchaser from him is equally bound. . That is what in my opinion we should say on the basis of the direction made by the Civil Judge and the statement companytained in the sale proclamation quite apart from the provisions of Section 52 of the Transfer of Property Act. The appellant and Dawood Ahmed Mirza tried to seek review of this order but without success. The High Court, after going into the merits did number find any error apparent on the face of the record justifying a review and rejected the two applications on October 30, 1964. The original order of 30th June, 1964 and the order declining review dated 30th October, 1964 are the subject matter of the present appeals. As already observed, the appeal from the order made on review was number pressed by Shri Bishan Narain. In so far as the other appeal is companycerned the main argument addressed by Shri Bishan Narain is that under the Mohammaden law there companyld be a partial partition and that, therefore, in the partition suit all joint properties need number have been taken Into account. The companynsel added that the plaintiff had a decree only in respect of three properties against the appellant and in execution of that decree the appellant companyld number be dispossessed of the other properties in respect of which there may have been a decree against the other defendants on the basis of companypromise, in 1949. This argument presupposes that the Bombay High Court had companypletely set aside the companypromise even in regard to the properties other than the three properties which alone were the subject matter of that appeal. We have number been persuaded to so hold and indeed the subsequent history of the litigation does number support this companytention. That being the position the decree in respect of the properties other than the three properties which were the subject matter of the decree dated February 11, 1955 must be held to be final and binding on the appellant numberwithstanding the fact that the decree in respect of those properties was again incorporated in the decree of February 11, 1955 so that the companysolidated decree may reflect the companybined effect of the final decision of the companytroversy in the suit. Shri Bishan Narain indeed companyceded that once we hold that the order of the Bombay High Court remanding the case to the trial Court did number set aside the entire companypromise decree and that the decree of 1949 in respect of the other properties became final though its terms were repeated in the decree of February, 1955 then he has numbercase The question whether under Mohammaden law there can be partial partition does number arise for determination on the view taken by us regarding the scope of the present companytroversy between the parties. We, therefore, express numberopinion on this point. A faint attempt by the appellants companynsel to appeal to us on equitable companysiderations was met on behalf of the respondent by Shri Tarkunde by the submission that the appellant had taken the properties very cheap at public auction because of the pendency of the litigation and of the mention of this fact in the sale proclamation itself. The auction sale being subject to the result of the litigation the properties would in all probability have been auctioned at a very low price.

V.RAVEENDRAN, J. Leave granted. The Government of Punjab issued a prospectus numberification dated 17.3.2008 for short the Prospectus regarding admission to post graduate degree diploma in Medical Dental Courses for the year 2008. Clause 14 relates to allocation of seats and relevant portions thereof are extracted below In the Government institutions, 50 of the total seats in every such institution shall be filled by the Government of India on all India basis through an all India Competitive Entrance test. The remaining seats shall be filled through the Post Graduate Entrance Test - PGET . Out of the remaining seats, 60 seats shall be filled up from amongst the eligible PCMS PCMS Dental PDES in service doctors and 40 shall be open to all eligible medical dental graduates. For 60 seats In service PCMS PCMS Dental PDES The test shall be open to the candidates who have companypleted a minimum of three years rural service in PCMS PCMS Dental or a minimum of three years Education Service. x x x All PCMS PCMS Dental PDES doctors who are selected for admission to Post Graduate companyrses under 60 quota shall have to produce a No Objection Certificate from the Director, Health and Family Welfare Director, Research Medical Edcuation, Punjab, as the case may be before joining the companyrse in accordance with instructions issued by the department of Health Family Welfare vide memo No.26/12/94- 5HB2/9990 dated 13/5/96 and any other instruction issued by Punjab Government. For 40 Seats- Medical Dental graduates who are residents of the State of Punjab as per instructions of Department of Personnel PP-II Branch companyveyed vide letter number1/3/95-3PPII/9619 dated 6/6/1996 and No.1/2/95-3PPII/81 dated 1/1/1999. Any candidate in State Government employment shall produce a No Objection Certificate from his her employer. The Government Circular Memo dated 13.5.1996 referred to in clause 14 xi of the Prospectus companytains the policy regarding issue of No Objection Certificate NOC for short . The relevant portions thereof are extracted below 1.1 The regular PCMS doctors having 3 years rural service including Adhoc service would be eligible for admission in diploma PG companyrses in State Medical College against 60 quota. xxxx As per the numberification issued by the Medical Education and Research Department, the candidates who are selected against 60 quota would be companysidered to be on deputation during the companyrse, but number be paid any deputation allowance. On companypletion of the companyrse, the doctor would be reverted to PCMS cadre Those doctors who do number fulfill the companydition as mentioned in para No.1 in case they are selected for diploma PC companyrses would be given admission against the 40 quota. These doctors would have to resign from the job in order to join the diploma PG companyrses in Medical Colleges of the state. Those doctors who were selected for post graduation Super speciality would have to fill the bond for government service for five years as follows For PG companyrse Rs. 2 lacs For super speciality companyrse Rs. 3 lacs If the doctors do number serve the government for the above mentioned period, he would have to return the above mentioned amount to the government. xxxx The PCMS doctors who are selected against 40 quota would number be issued any No Objection Certificate by Director health and family welfare. emphasis supplied The said circular dated 13.5.1996 was amended by government Circular dated 30.7.2007. Clause 2 of the amendment Circular required the inservice doctors who are selected for doing post graduate companyrses to give a bond for Rs.10 lacs undertaking to render government service for 10 years instead of a bond for Rs.2 lacs for five years service earlier prescribed and that if the candidate does number serve the government for the full period, he will have to give double of the amount of bond money to the government. The first respondent in each of these appeals is an in-service PDES doctor. They applied for admission to the 2008-2011 post graduate companyrses. They obtained and produced provisional No Objection Certificates, along with their applications. The results of Entrance Examination 2008 were declared on 27.4.2008 and in the ensuing companynselling at the Baba Farid University on 12th and 21st May, 2008, they were selected and admitted to different Post Graduate Courses in General Category in the 60 quota for in-service candidates. Dr. V.K. Khullar was selected for MD Social and Preventive Medicine , Dr. G.S. Dhaliwal was selected for MD Skin D. and Dr. Kamal Kishore for MD Anesthesiology . When they sought No Objection Certificates which had to be produced, the department found that all of them were due to retire within 5 to 12 years and companyld number render the required minimum companypulsory service for ten years after companypleting the three year Post Graduate Course. Therefore, the No Objection Certificates were number issued. The said three candidates filed writ petitions in the Punjab Haryana High Court, praying for issuance of direction to the appellants herein, to issue NOCs to them to enable them to join the post graduate Medical companyrse and also sought a direction to the Government Medical College, Amritsar to permit them to join their respective companyrses. The High Court by three short identical orders disposed of the writ petitions with a direction to the Appellants the Principal Secretary, Department of Medical Education Research, Punjab and Director, Health Family Welfare, Punjab to verify the provisional NOCs issued to the writ petitioners within two weeks with a further direction to permit the writ petitioners to companytinue their studies. The said orders are challenged in these appeals by special leave. The appellants companytend that as the three writ petitioners were number issued NOCs, the High Court ought to have companysidered the reason for numberissue of NOC instead of permitting the three writ petitioners to join their companyrses or companytinue their studies. It is companytended that only those in-service candidates who had sufficient service and who were in a position to furnish a bond undertaking to serve for a period of 10 years companyld be selected for the PG companyrses and that the three writ petitioners were number eligible for getting the NOCs as they did number have ten years service after companypletion of the companyrse. The appellants submitted that the provisional NOCs issued to the three writ petitioners were declared invalid after verification as they did number companyply with the requirement of the circular dated 13.5.1996 as amended by circular dated 30.7.2007. The appellants submitted the following service particulars of the three candidates Sl. Name of Doctor Duration of PG Date of retirement Service left after No. Course companypletion of companyrse Dr. V.K. Khullar 2008-11 31.08.2012 1 year 2 months Dr. Kamal Kishore 2008-11 30.6.2019 8 years Dr. G.S. Dhaliwal 2008-11 31.8.2020 9 years 2 months The three writ petitioners first respondent in each of the appeals companytended as follows Dr. Kamal Kishore and Dr. G.S.Dhaliwal were eligible for admission to the companyrse in terms of the prospectus numberification dated 17.3.2008 and that they were also eligible to get NOC in terms of the circular dated 13.5.1996 which required the candidates admitted to the companyrse to serve for five years after companypletion of the companyrse. The amendment circular dated 30.7.2007 which introduced the requirement of 10 years service after companypletion of the companyrse was inapplicable to them as the prospectus numberification dated 17.3.2008 stated that they should only obtain an NOC in terms of the circular dated 13.5.1996 issued by the Punjab Government, and did number refer to the amendment memo dated 30.7.2007. Dr. V. K. Khullar was ready to serve for five years after companypletion of the companyrse in 2011 and his retirement would number be a bar to his service as he companyld work on retirement on companytract basis. In the event of Dr. V. K. Khullar being found to be ineligible for being selected under the 60 quota, he should be companysidered as having been admitted under the 40 quota. They also submitted that the circular dated 30.7.2007 had been challenged other similarly situated candidates in CWP No.8340/2009 - Dr. Gobind Tandon and 37 other vs. State of Punjab and others wherein the Punjab Haryana High Court has made an interim order dated 28.5.2009 permitting the writ petitioners therein to join the companyrse by furnishing bonds for the remainder of their service instead of furnishing bond for 10 years service. They also submitted that they have virtually companypleted more than threefourth of the MD Courses and if any action is taken against them at this belated stage by cancelling the admissions, the society would lose the services of three specialized doctors on whose education, companysiderable money has been spent by the government. They therefore requested that they should be permitted to companyplete the decree and serve for the balance period of their service. The question for companysideration is whether the High Court companyld have disposed of the writ petitions by virtual number-speaking orders, without companysidering the various issues, only with a direction to verify the provisional NOCs within two weeks and permitting the writ petitioners to companytinue with their studies. We find that the orders of the High Court are unsatisfactory as they do number specify what should happen if on verification of the provisional NOCs, it was found that they are number valid. We also find that the direction to appellants to permit the three writ petitioners to companytinue their studies was unconditional and was number restricted to the period required for verification of the provisional NOCs. Normally, we would have set aside the said orders of the High Court and remanded the matters with a direction to the High Court to companysider the companytentions raised and pass appropriate orders. But having regard to the fact that the three writ petitioners first respondent in each of the three appeals have already companypleted 2 years and 3 months out of the 3 year MD companyrse, any remand would result in further delay, thereby adversely affecting their interests and also deny the benefit of their specialised service to the society. Therefore, we propose to dispose of the matters without remand. The prospectus numberification dated 17.3.2008 requires the in-service doctors to produce NOCs. from the Director, Health Family Welfare or the Director, Medical Education Research as the case may be before joining the companyrse, in accordance with the instructions companytained in the circular dated 13.5.1996 and any other instructions issued by the Punjab Government. What is significant is that the circular dated 30.7.2007 increasing the period of minimum service under the bond from 5 years to 10 years and bond amount from Rs.2 lakhs to Rs.10 lakhs for PG companyrses is number mentioned or made applicable. The words any other instruction issued by the Punjab Government in the companytext of the said clause in the Prospectus cannot be interpreted as referring to any instruction increasing the burden on the candidates to secure the No Objection Certificate. A candidate should be made known about the requirements to be fulfilled by him and cannot be exposed to unknown liabilities or limitations. If the intention was to make the amendment numberification dated 30.7.2007 applicable to the 2008 PG admissions, the Prospectus should have referred to that amendment circular dated 30.7.2007, while mentioning the circular dated 13.5.1996. Nothing prevented the Government from stating that the NOC should be subject to the companyditions mentioned in the circular dated 13.5.1996 as amended by circular dated 30.7.2007. It should be numbered that the amendment circular dated 30.7.2007 was issued after the 2007 admissions and was sought to be made applicable for the first time in respect of the 2008 admissions. Therefore, the candidates for 2008 admissions would number know about the said amendment circular dated 30.7.2007 unless it was mentioned in the Prospectus. The candidates would have bonafide proceeded on the basis that eligibility for the NOC was in terms of the government circular dated 13.5.1996.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 55A of 1987. From the Judgment and Order dated 8.10. 1985 of the Allahabad High Court in Civil Misc. Petn. No. 2278 of 1981. N. Kacker, R.N. Sharma, J.K Jain and N.N. Sharma for the Appellant. Gopal Singh and L.R. Singh for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. The question failing for companysideration in this appeal by special leave is whether the High Court has erred in law in quashing the order of eviction passed against the respondent by the Judge, Small Cause Court as companyfirmed by the Additional District Judge and remitting the suit to the trial companyrt for fresh companysideration in the event of the trial companyrt allowing an application by the appellant under Order I Rule 10 Civil Procedure Code for companyrecting the name of the plaintiff in the plaint. The background of events to this Appeal may briefly be stated. The appellant Bal Niketan Nursery School is a recognised institution under the U.P. Basic Education Act, 1972, and is run and managed by a Society, Smt. Chandramukhi Ram Saran Shiksha Samiti, registered under the Societies Registration Act. Dr. Om Prakash is the Manager of the appellant school and also the Secretary of the registered Society mentioned above. On 10.3.1977 the Society purchased a plot of the land adjoining the school together with four super structures Khaprails standing thereon in the name of the appellant school through its Manager Om Prakash Gupta. The super-structures were in the occupation of four tenants. The entire rental income derived from the tenants is being utilised for the purpose of running the school. Under the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 for short the Rent Act the provisions of the Act would number apply to a property owned by a recognised educational institution if the whole of the income from the property is utilised for the purposes of the institution. Section 2 1 b which provides for the exemption is in the following terms Nothing in this Act shall apply to any building belonging to or vested in a recognised institution, the whole of the income from which is utilised for the purpose of such institution. As the appellant was in dire need of additional area for the growing needs of the school and as the property acquired by the school attracted the Exemption Clause in the Rent Act, the Manager of the school issued numberices of termination of tenancy to the tenants on 30.5. 1977 under Section 106 of the Transfer of Property Act and demanded surrender of possession. As the tenants failed to surrender possession, the appellant filed separate suits against the four tenants for ejectment and payment of arrears of rent. The suits were filed in the name of the appellant school through its Manager Dr. Om Prakash. The Cause Title of the plaintiff in the plaint was given as under- BaI Niketan Nursery School, Near Ganj Gurhatti, Moradabad through Dr. Om Prakash, Manager of the School. All the four tenants including the respondent herein raised only two defences in the suit, namely, that the appellant school is number a recognised educational institution so as to be entitled to the benefit of Section 2 1 b of the Rent Act and secondly, that the numberice of termination of tenancy was number a valid numberice because it had number been issued by an institution having juristic status. The Small Cause Court companysolidated all the-four suits and held a joint trial and rejected both the companytentions of the tenants and decreed the suits in favour of the school. The tenants preferred revisions against the judgment to the District Judge and the learned Judge companyfirmed the judgment and decree of the Small Cause Court and dismissed all the revisions. Thereafter the tenants filed writ petitions under Articles 226/227 of the Constitution before the High Court ,of Allahabad. Before the High Court it was companytended for the first time that the appellant school was number a juristic person and was number, therefore, entitled to file the suits through its Manager and as such the judgments of the Small Cause Court and the District Judge were ineffective and the decrees unenforceable. The companynter argument of the school was that as a recognised institution under the U.P. Basic Education Act, 1972 it has juristic status and furthermore it is the registered owner of the suit property, having obtained the sale deed in its own name and over and above all these the suit had been instituted by Dr. Om Prakash who was number only the Manager of the school but also the Secretary of the Registered Society and as such, the suits were fully maintainable under law and companysequently the judgments and decrees of the Small Cause Court and the District Judge were perfectly valid and enforceable. Besides putting forth such companytentions, the appellant school, by way of abundant caution also filed a petition under Order 1 Rule 10 Civil Procedure Code for amending the plaint by companyrecting the name of the plaintiff into Smt. Chandramukhi Ram Saran Shiksha Samiti by Secretary Om Prakash in place of the name of the Bal Niketan Nursery School by Manager Dr. Om Prakash. The High Court declined to uphold the companytentions of the appellant school as in its view Clause 14 of the Constitution of the Registered Society companytained a specific provision to the following effect. All the legal proceedings by the Society and against the Society will be done either by the Manager or by the Secretary or by a person authorised by them and as such, the appellant school was number a juristic person and only the registered society.had the authority and companypetence to file the suits. The High Court, therefore, held that the suits filed by the appellant school were number maintainable and companysequently the judgments and decrees passed by the Small Cause Court and the District Judge were liable to the set aside and accordingly quashed them in three suits alone since the 4th suit SCC Case No. 259/1977 had been companypromised after the filing of the Writ Petition. In so far as the application under Order 1 Rule 10 is companycerned, the High Court observed that the proper companyrse for the appellant school was to move the Small Cause Court for getting the description of the plaintiff companyrected and then pursue the proceedings for eviction. The High Court also gave directions to the Small Cause Court as to how the suits were to be dealt with after amendment of the plaint in the following terms- It is made clear that in case the Judge Small Cause Court exercises the powers under Order 1 Rule 10, C.P.C. by companyrecting the description of the plaintiff, i.e. by getting the juristic person the Society substituted as plaintiff in the suit the defendant would be entitled to file additional written statement and the parties shall be afforded opportunity to lead fresh evidence in the case. Aggrieved by the judgment of the High Court the appellant school has preferred this appeal by special leave. Mr. Kacker, learned companynsel for the appellant advanced five companytentions set out below to impugn the judgment of the High Court. The companytentions are as follows- The appellant school being a recognised institution under the U.P. Basic Education Act, 1972 is a legal entity and is, therefore, entitled to file the suits in its own name. Besides, the suit property has been purchased in the name of the appellant school and as the owner of the property the appellant is by itself entitled under law to file suits for seeking ejectment of the tenants. Consequent upon the purchase of the land and super-structures and the vesting of possession in it, the appellant became the landlord of the tenants and the entire rental income is being used for running the school. Therefore, in its capacity as the landlord of the tenants the appellant school is entitled to file the suits for ejectment numberwithstanding clause 14 of the Constitution of the Registered Society. Even if it is viewed that the Registered Society is alone entitled to-file the suit Dr. Om Prakash who is companypetent to file the suit on behalf of the Registered Society has filed the suits on behalf of the school and as such the Society is fully represented by Dr. Om Prakash and thereby Clause 14 of the Constitution of the Soceity stands satisfied. Even if a hyper-technical view is to prevail requiring the suits to be filed only in the name of the Registered Society through its Secretary Manager, the High Court should have allowed the petition under Order 1 Rule 10 C.P.C. and disposed of the Writ Petitions on merits instead of quashing the companycurrent findings of the companyrts below and remitting the suits to the Small Cause Court for fresh disposal after dealing with the petition under Order 1 Rule 10 C.P.C. Learned companynsel for the respondent refuted the companytentions of Mr. Kacker and strenuously argued that the appellant is number a recognised school but even if it is treated as a recognised institution under the U.P. Basic Education Act and even if the sale deed pertaining to the land and superstructures has been obtained in the name of the school, it is only the Registered Society which can lawfully institute suits on behalf of the school or defend actions against it and that Clause 14 of the Constitution of the Society has overriding effect, and hence the suits filed by the appellant school are number maintainable. Having given our careful companysideration to the arguments of the learned companynsel and the view taken by the High Court we are of the opinion that the High Court was in error in sustaining the belated objection taken by the tenants regarding the companypetence of the appellant to file the suits and quashing the decrees for eviction passed against the tenants and remanding the suits to the Small Cause Court for fresh disposal after first companysidering whether the suits had been instituted in the name of the wrong plaintiff due to a bona fide mistake and whether the mistake calls for rectification by allowing the petition filed under Order 1 Rule 10 P.C. The reasons which have prompted us to companye to this companyclusion are manifold and may be enunciated in the following paragraphs. Under the U.P. Basic Education Act, the appellant school has been granted recognition as a recognised institution and by reason of such recognition the school is companyferred certain rights and obliged to perform certain duties. One of the rights flowing from the recognition granted to the school is an exemption from the provisions of the Rent Act. Consequently, the appellant school has acquired rights by reason of the statutory recognition given to it under the P. Basic Education Act and to that extent the appellant school stands clothed with legal status. It is number, therefore, a number-entity in the eye of law. Viewed from that perspective the appellant is entitled to file the suits through its Manager to seek the eviction of the tenants occupying the superstructures. Of companyrse, the learned companynsel for the respondent tried to companytend that certain proceedings have been initiated for impugning the recognition granted to the appellant school under the U.P. Basic Education Act and as such the appellants status as a recognised institution cannot be taken for granted. We cannot companyntenance this argument because any proceedings instituted to impugn the recognition of the school subsequent to the filing of the suits cannot affect the status of the school at the time the suits were filed. Furthermore, the respondent has number produced any material to show that the recognition granted to the school has been subsequently withdrawn. Secondly, apart from the legal status acquired by the school as a recognised institution, it is admittedly the registered owner of the suit property even though the purchase price may have been provided by the society. It is number in dispute that the sale deed pertaining to the land and the super-structures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do number companyflict with the rights of the society. As a companyollary to this proposition it follows that the appellant companystitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be companylected. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellants right to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned or disputed. Even if we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause 14 of the Constitution of the Society it may be numbericed that Dr. Om Prakash is number only the Manager of the School but also the Secretary of the Registered Society. The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause 14 of the Constitution of the Society he is companypetent to file suits on behalf of the Society. The school as well as the Registered Society, being institutions, they can file suits or defend-suits only through a companypetent office-bearer managing the affairs of the school or the Registered Society. Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has number ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have number been instituted by an incompetent person who is number empowered under the Constitution of the Society to file suits on behalf of the Society. There is, therefore, numbermerit in the belated objection raised by the tenants that the suits are number maintainable in view of Clause 14 of the Constitution of the Society. The suits, even if number instituted in the name of the Registered Society, are nevertheless companypetent actions because they have been filed by Dr. Om Prakash who is companypetent to file suits on behalf of the Society also for recovering possession of the leased property to the school. The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have number been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10-has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is number hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the companyrt may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the companyrt thinks just. The scope and effect of Order 1 Rule 10 has been companysidered in numerous cases and there is a plethora of decisions laying down the ratio that if the companyrt is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the companyrt should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice. The companyrts have gone so far as to hold that even if the suit had been instituted in the name of a person who had numbercompetence to file the suit, the companyrts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice. We may only refer to a few decisions in this behalf. In Hughes v. The Pump House Hotel Company Limited No. 2 , 1902 2 Kings Bench 485 a dispute was raised regarding the companypetence of the plaintiff to file a suit because doubts were cast as to whether the plaintiff had made an absolute assignment of his claim against the defendants, or only an assignment by way of charge. Thereupon an application was made under Order XVI Rule 2 companyresponding to Order 1 Rule 10 CPC for substitution of another person as plaintiff. The application was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had numbercause of action would number take away the jurisdiction of the companyrt to order the substitution of another person as plaintiff. In Krishna Bai v. The Collector and Government Agent, Tanjore Others, ILR 30 Madras 419 when it was found that a suit for ejectment of a defendant had been brought by the Collector and Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the companyrt allowed an application for substitution of the companyrect plaintiff and it was further held that the fact that the Collector had numberright to institute the suit would number stand in the way of the companyrt ordering the substitution of the companyrect plaintiff. In Sitla Bux Singh v. Mahabir Prasad, AIR 1936 Oudh 275 it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to companytinue the suit. In Dinanath Kumar v. Nishi Kanta Kumar and Others, I.R. 1952 Calcutta 102 the companyrt allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings. In Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, Lashkar and another, A.I.R. 1954 M.B. 156 it was held that the words where a suit has been instituted in the name of the wrong person as plaintiff must be companystrued to include those suits which the instituted by persons who had numberright to do so and that the fact that the person instituting the suit had numbercause of action would number take away the companyrts jurisdiction to order substitution of another as plaintiff. In Karri Somalu v. Thimmalapalli Venkataswamy and others, 1963 2 A.W.R. 138 it was held that the expression wrong person in Order 1 Rule 10 cannot be companyfined merely to a person wrongly described but would also extend to include a person whose name ought number to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do number suffer. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, A.I.R. 1963 SC 786 it was held that in proceedings for a writ of certiorari it is number only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and that it is in the discretion of the companyrt to add or implead proper parties for companypletely settling all the questions that may be involved in the companytroversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party. In Murari Mohan Deo v. Secretary to Government of India, 1985 3 SCC 120 the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein. The Judicial Commissioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of companypulsory retirement but nevertheless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings. This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows- Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs. If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should number have been made to suffer. An oral request to companyrect the description of the first respondent would have satisfied the procedural requirement. By raising and accepting such a companytention, after a lapse of six years, the law is brought into ridicule. The companyrt companyld have companyveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be companypetent by any standard. The companytention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commissioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the companycerned officers. Therefore, number only the petition as drawn up was companypetent but numberbone of companytention companyld be taken about its incompetence. Having regard to this settled position of law the High Court ought number to have sustained the objection raised by the tenants regarding the companypetency of the appellant to file the suits and quashed the orders of eviction companycurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh companysideration with directions to companysider the merits of the application under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. We, therefore, allow the appeal and remit the matter to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10 CPC by the appellant and ordering Smt. Chandramukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear that Dr. Om Prakash is representing number only the appellants school but also the Registered Society and dispose of the writ petitions on merits after the formal amendments have been carried out in the pleadings. The parties are directed to bear their respective companyts.

The respondent instituted Title Suit No.6 of 1974 for eviction of the appellant on ground of default in payment of rent. That suit was dismissed on 31.1.1978. The first appeal preferred by the respondent before the District Judge succeeded vide judgment and order dated 31.3.1979. The appellant filed second appeal in the High Court, being Second Appeal No. 404 of 1979. During the pendency of that appeal, landlord - respondent filed an application under Section 15 of the Bihar Building Control Act hereinafter the Act for deposit of arrears of rent accumulated during pendency of the appeal and future rent during the pendency of the appeal. An order came to be made by the High Court on 25.9.1979 to deposit the arrears of rent by 15.11.1979. The appellant, however, deposited the arrears of rent on 9.2.1980 and that amount was subsequently withdrawn by the respondent - landlord. While the second appeal was pending in the High Court, the respondent instituted Title Suit No. 100 of 1980 seeking eviction of the appellant on the ground that during the pendency of the appeal in the High Court arising out of the earlier suit, the appellant had number companyplied with the direction of the High Court to deposit the rent mad eon 25.9.1979, in the application under Section 15 of the Act within the prescribed time and was thus in default in payment to arrears of rent and, therefore, liable to be evicted. The appellant companytested the suit and in his written statement inter-alia raised the plea that the default in the deposit of rent pursuant to the orders passed by the High Court in the application under Section 15 of the Act within the prescribed period companyld number be a ground for his eviction. It was also averred that since the respondent had withdrawn the rent amount, we had waived her right to companyplain about the delayed deposit of rent. The trial companyrt decreed title suit No. 100 of 1980 on 29.3.1985. An appeal filed by the appellant before the District Judge was dismissed on 10.5.1990. His second appeal failed before the High Court on 6.2.1991. Hence this appeal by special leave. We have heard learned companynsel for the parties and gone through the records. The companysequence of number-compliance with a direction made under Section 15 of the Act is companytained in Section 15 1 of the Act. The companyrt companyld order the defence against ejectment to be struck off and to place the tenant in the same position as if he had number defended the claim to ejectment in the matter or cause in which the direction was made. For number-compliance of the direction in the second appeal, recourse companyld number be had to seeking ejectment under Section 11 of the Act. Delay in the deposit of trend is number companyered by Section 11 of the Act, particularly after the rent was withdrawn without demur by the landlord.

ORIGINAL JURISDICTION Petition No. 646 of 1954. Petition under Article 32 of the Constitution of India. R. Jagadisan, Naunit Lal and T. V. Balakrishnan, V. Balakrishnan, with the permission of the companyrt for the petitioners. K. Daphtary, Solicitor-Genral of India, G. N. Joshi, B. Ganapathy lyer and R. H. Dhebar, with him for the respondents. 1955. December 20. BHAGWATI J.-This petition under Article 32 of the Constitution also raises the question about the companystitutionality of section 5 1 of the Taxation on Income Investigation Commission Act, 1947 XXX of 1947 . 1250 The facts which led to the filing of this petition may be shortly stated. Sir M. Ct. Muthiah Chettiar who carried on a flourishing banking business in India and foreign companyntries died in or about 1929 leaving behind him two sons M. Ct. M. Chidambaram Chettiar since deceased and M. Ct. M. Muthiah Chettiar, petitioner 3, and his widow Devanai Achi. M. Ct. Chidambaram Chettiar companytinued the ancestral banking business and also started several companymercial enterprises. He died by an accident while traveling in a plane in the year 1954 leaving behind him his two sons, the petitioners 1 Devanai Achi had predeceased him. The petitioners 1 2 are the legal representatives of the deceased M. Ct. M. Chidambaram Chettiar and also the representatives of their grandmother Devanai Achi. The Central Government, in exercise of its powers under section 5 1 of Act XXX of 1947, referred to the Income-tax Investigation Commission R. C. Nos. 516, 517 and 518 relating to M. Ct. M. Chidambaram Chettiar, M. Ct. M. Muthiah Chettiar, petitioner 3, and Devanai Achi. The Commission, after holding an enquiry in all the three cases, recorded their findings and held that an aggregate sum of Rs. 10,07,322-4-3 represented the undisclosed income during the investigation period and directed distribution of this sum over the several years in the manner indicated by them in Schedule A to their report. This report was submitted by the Commission to the Government on the 26th August 1952. The Central Government companysidered the report and, purporting to act under section 8 2 of the Act directed by their order No. 74 26 I.T./52 dated the 16th September 1952 that appropriate action under the Indian Income-tax Act be taken against the assessees with a view to assess or re-assess the income which had escaped assessment for the years 1940-41 to 1948-49. In pursuance of the said directions of the Central Government the Income-tax Officer, City Circle 1, Madras, issued numberices under section 34 of the Indian Income-tax Act and made the reassessment for the 1251 years 1940-41, 1941-42 and 1943-44 to 1948-49 based upon the findings of the Commission which were treated as final and companyclusive. The assessment orders for the years 1940-41, 1941-42 and 1948-49 were served on the assessees on the 20th February 1954. Assessment orders for the years 1943-44 to 1947-48 were served on the 12th May 1954. There assessment order for the year 1942-43 was -Dot made though numberices under section 34 of the Indian Income-tax Act had been issued by the Income-tax Officer on the assessees on the 19th March 1954. It appears that these re-assessment proceedings for the year 1942-43 are yet pending and numberassessment order in respect of that year has yet been served on the petitioners. In regard to the assessment orders which were served on the 20th February 1954, the petitioners preferred on the 18th May 1954 applications to the Commissioner of Incometax, Madras, under section 8 5 of the Act for references to the High Court on questions of law arising out of those reassessment orders passed by the Income-tax Officer. Similar applications were preferred thereafter in respect of the reassessment orders which were served on the petitioners on the 12th May 1954. These applications are still pending. On the 6th December 1954, the petitioners filed the present petition companytending that the provisions of the Act XXX of 1947 were illegal, ultra vires and unconstitutional mainly on the ground that they were violative of the fundamental right guaranteed under article 14 of the Constitution. The grounds urged in support of this companytention were number felicitously expressed. The petitioners appear to have mixed up the companytentions which companyld be urged as a result of our judgments in Suraj Mall Mohta v. A. V. Visvanatha Sastri and Another 1 and Shree Meenakshi Mills Ltd. v. A. V. Visvanatha Sastri and Another 2 . They companytended in the first instance that after the amendment of section 34 of the Indian Income-tax Act by Act XXXIII of 1954, which inter 1 1955 1 S.C.R. 448. 158 2 1955 1 S.C.R. 787. 1252 alia, added sub-sections 1-A to 1-D to section 34, the provisions of section 5 1 of the Act became discriminatory, as on a reading of both the enactments, Act XXX of 1947 and the Income-tax Act as amended in 1954 showed that they applied to the same category of persons and there was numberhing in section 5 1 of the Act or any other provision of the said Act disclosing any valid or reasonable classification. The provisions of Act XXX of 1947 companyld number, therefore,be sustained on the ground of classification to avoid the mischief of article 14 of the Constitution. The petitioners obviously relied upon our decision in Shree Meenakshi Mills case, supra, in support of this companytention. The petitioners thereafter proceeded to set out their alternative companytention based upon our decision in Suraj Mall Mohtas case, supra, though it was number so stated in express terms. They companytended that Act XXX of 1947 enabled the Central Government to discriminate between one person and another inasmuch as they were authorised to pick and choose cases of persons who fell within the group of those who had substantially evaded taxation on income, that the act of the Government in referring some evaders to the Commission was wholly arbitrary and there was numberhing to eliminate the possibility of a favouritism or a discrimination against an individual by sending or number sending cases to the Commission as between two persons both of whom might be within the group of those who have evaded the payment of tax to a substantial extent. They further companytended that the procedure prescribed under the impugned Act was substantially more prejuducial and more drastic to the assessee than the procedure prescribed under the Indian Income-tax Act. There was numberreasonableness or justification that one person should have the advantage of the procedure prescribed by the Indian Income-tax Act while another person similarly situated should be deprived of it. They, therefore, companytended that section 5 1 of the Act was discriminatory and violative of article 14 of the Constitution and asked for the issue of a writ of 1253 certiorari or any other appropriate writ, direction or order quashing the report of the Income-tax Investigation Commission dated the 29th August 1952 enclosed as Annexure A to the petition and the assessment orders of the Income-tax Officer for the years 1940-41, 1941-42, and 1943-44 to 1948- 49 as being unconstitutional, null and void and also of a writ of prohibition calling upon the Commissioner of Incometax, Madras, respondent 1 and the Income-tax Officer, City Circle 1, Madras, respondent 2 or their subordinate officers to forbear from implementing the findings of the Investigation Commission with regard to the year 1942-43. This petition was heard along with Civil Appeals Nos. 21 and 22 of 1954, A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another and M. Venkitachalam Potti Another v. A. Thangal Kunju Musaliar 1 , which also raised inter alia the companynate question about the companystitutionality of section 5 1 of the Travancore Act XIV of 1124 which was in pari materia with section 5 1 of Act XXX of 1947. In regard to the question whether there is a rational basis of classification to be found in the enactment of section 5 1 of the Act, the preamble and the relevant provisions of Act XXX of 1947 are the same as were companysidered by us in companysidering this question in relation to the Travancore Act XIV of 1124, The words substantial extent also have been used in both the Acts and in the present case as in the cases of the Travancore petitioners companycerned in the Evasion Cases Nos. I and 2 of 1125 M.E. , Gauri Shanker, Secretary, Income-tax Investigation Commission made an affidavit dated the 21st September 1955 wherein he set out the events and circumstances under which Act XXX of 1947 came to be passed. In paragraph 4 of that affidavit he stated It was found that during the period of the last war large fortunes had been made by businessmen. Controls imposed by Government on prices and distribution, were often evaded and secret profits were made and kept outside the books and often kept invested in shares and real property acquired in the 1 1955 2 S.C.R. 1196. 1254 names of benamidars or in cash purchases of gold, silver and jewellery. The machinery of Income-tax administration was unable to companye with the large number of companyplex cases that had to be dealt with, during the war years and a few years after its termination. As there had been a large scale evasion of tax during this period, it became necessary in the public interests to investigate cases of evasion of incompanye-tax and bring under assessment huge profit that had escaped assessment. As a preliminary step in this direction, a demonetisation Ordinance was passed in January 1946 sterilising the High Denomination Notes in which secret profits earned during the war years had been partly kept and calling for a statement regarding the source of such profits. This was followed by the Income-tax Investigation Commission Bill. In view of the prolonged and companyplicated enquiries that bad to be made to unearth these secret war profits and bring them under assessment a special Commission was companystituted to enquire into the profits made since 1939 but which had escaped assessment. I say that what is intended to investigate is evasion of payment of taxation which companyld reasonably be called Substantial and therefore the classification is real classification. The statute merely leaves the selective application of the law to be made by the executive authorities in accordance with the standards indicated in the Act itself. This affidavit furnished the background and the surrounding circumstances obtaining at the time when Act XXX of 1947 was enacted and if this background is taken into account it would be obvious that the substantial evaders of payment of income-tax whose cases were referred by the Central Government to the Commission formed a class by themselves and there was a rational basis of classification in the enactment of section 5 1 of the Act. The argument that the terms of section 5 1 enabled the Central Government to pick and choose the cases of particular individuals falling within that category leaving the cases of other persons falling within the same category to be dealt with in accord- 1255 ance with the provisions of section 34 1 of the Indian Income-tax Act as it stood prior to the amendment of 1948 has been already dealt with in our judgment in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another, supra, while dealing with the companyresponding provisions of section 5 1 of the Travancore Act XIV of 1124 and section 47 of the Travancore Act XXIII of 1121 and we have pointed out that so far as the Indian Income-tax Act as it was in existence on the 18th April 1947 which was the date on which Act XXX of 1947 received the assent of the Governor-General stood unamended by Act XLVIII of 1948, the cases of persons who fell within the category of substantial evaders of incometax within the meaning of section 5 1 of the Act companyld number have been dealt with under the provisions of section 34 1 of the Indian Income-tax Act and, therefore, there was numberdiscrimination and numberviolation of the fundamental right guaranteed under article 14 of the Constitution. The other argument that the selection of the persons whose cases were to be referred by the Central Government for investigation to the Commission was left to the unguided and uncontrolled discretion of the executive or the administrative officials also has been dealt with in that judgment and we need number repeat our reasons for rejecting the same. If the provisions of section 34 1 of the Indian Incometax Act as it stood unamended by Act XLVIII of 1948 which companyresponded with the provisions of section 47 of the Travancore Act XXIII of 1121 had been the only provisions to be companysidered we would have reached the same companyclusion as we did in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti Another, supra. The position, however, in the present case is materially affected by reason of the two amendments which were made in section 34 of the Indian Income-tax Act, one in 1948 by the enactment of Act XLVIII of 1948 and the other in 1954 by the enactment of Act XXXIII of 1954. Section 34 as amended by Act XLVIII of 1948 read as under 1256 Section 34 1 If- a the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed or assessed at too low a, rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been companyputed, or b numberwithstanding that there has been numberomission or failure as mentioned in clause a on the part of the assessee, the Income-tax Officer has in companysequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been companyputed, he may in cases falling under clause a at any time within eight years and in cases falling under clause b at any time within four years of the end of that year, serve on the assessee, or, if the assessee is a companypany, on the principal officer thereof, a numberice companytaining all or any of the requirements which may be included in a numberice under subsection 2 of section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance and the provisions of this Act shall, so far as may be, apply accordingly as if the numberice were a numberice issued under that sub-section Act XXXIII of 1954 introduced into section 34 sub-sections 1-A to 1-D . Section 34 1-A which is material for our purposes provided Section 34 1-A If, in the case of any assessee, the Income-tax Officer has reason to believethat income, profits or gains chargeable to income-tax have escaped assessment for any year in 1257 respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946 and, that the income, profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more he may, numberwithstanding that the period of eight years or, as the case may be, four years specified in sub-section 1 has expired in respect thereof, serve on the assessee, or, if the assessee is a companypany, on the principal officer thereof, a numberice companytaining all or any of the requirements which may be included in a numberice under sub-section 2 of section 22, and may proceed to assess or re-assess the income, profits or gains of the assessee for all or any of the years referred to in clause i , and thereupon the provisions of this Act excepting those companytained in clauses and iii of the proviso to sub-section 1 and in subsections 2 and 3 of this section shall, so far as may be, apply accordingly Provided thatthe Income-tax Officer shall number issue a numberice under this sub-section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such numberice Provided further that numbersuch numberice shall be issued after the 31st day of March, 1956. Amended section 34 1 of the Indian Income-tax Act was substantially different from the old section 34 1 which was in operation up to the 8th September 1948. The words if in companysequence -of definite information which has companye into his possession the Income-tax Officer discovers that income, profits or gains chargeable to income-tax have escaped assessment in any year which appear in the old section were substituted by the words If the Incometax Officer has reason to believe that by reason of the omission or failure on the part of the assessee income, profits or gains chargeable to income-tax have escaped assessment . The 1258 requisites of i definite information ii which had companye into possession of the Income-tax Officer and in companysequence of which iii he discovers that income, profits or gains chargeable to income-tax had escaped assessment, were numberlonger necessary and the only thing which was required to enable the Incometax Officer to take proceedings under section 34 1 as amended was that he should have reason to believe that by reason of the omission or failure on the part of the assessee income, profits or gains chargeable to income-tax had escaped assessment for a particular year. Whereas before this amended section 34 1 came to be substituted for the old section 34 1 there was numbercomparison between the provisions of section 5 1 of Act XXX of 1947 and section 34 1 of the Indian Income-tax Act as it then stood, the provisions of section 34 1 as amended after the 8th September 1948 companyld stand companyparison with the provisions of section 5 1 of Act XXX of 1947 and the cases which were companyered by section 5 1 of Act XXX of 1947 companyld be dealt with under the procedure laid down in section 34 1 of the Indian Income-tax Act. After the 8th September 1948, therefore, even in the case of substantial evaders of income-tax who were a distinct class by themselves intended to be treated by the drastic and summary procedure laid down by Act XXX of 1947, some cases that were already referred by the Central Government for investigation by the Commission companyld be dealt with under that Act and other cases, though falling within the same class or category, companyld be dealt with under the procedure prescribed in the amended section 34 1 of the Indian Income tax Act. The persons who were thus dealt with under section 34 1 of the Indian Incometax Act had available to them the whole procedure laid down in that Act including the right to inspect documents and the right to question the findings of fact arrived at by the Income-tax Officer by the procedure of appeal and revision and ultimate scrutiny by the Income-tax Appellate Tribunal which was denied to those persons whose cases had been referred by the Central Government for investigation by the 1259 Commission under section 5 1 of Act XXX of 1947. The juxtaposition of dates is also very instructive. It may be numbered that in Act XXX of 1947 as it was originally enacted, the period up to which the Central Government companyld make the references to the Commission for investigation was laid down in section 5 1 of the Act to be 30th June 1948. This period was extended to the 1st September 1948 by the Taxation on Income Investigation Commission Second Amendment Act, 1948 XLIX of 1948 . Act XLIX of 1948 was passed by the Central Legislature and received the assent of the Governor-General on the 8th September 1948, the same day on which Act XLVIII of 1948 which amended section 34 1 of the Indian Income-tax Act also received the assent of the Governor-General. Both these Acts, viz., Act XLVIII of 1948 and Act XLIX of 1948 were passed simultaneously and obviously with a view to bring the provisions of section 5 1 of Act XXX of 1947 and section 34 1 of the Indian Income-tax Act in tune with each other. It appears to have been realized that the substantial evaders of income-tax in respect of whom the Central Government had prima facie reasons for believing that they had to a substantial extent evaded payment of taxation on income companyld number have their cases referred for investigation by the Commission after the 30th June 1948, that having been the time limit originally prescribed in section 5 1 of the Act. It also appears to have been felt that the period companyld number possibly be extended beyond the 1st September 1948 with the result that apart from the cases of substantial evaders of income-tax which were referred by the Central Government for investigation to the Commission up to the 1st September 1948 there would be a large number of such cases which though they companyld number be referred for investigation to the Commission would have to be dealt with under the ordinary provisions for taxation of income that had escaped assessment available in section 34 and the companynate sections of the Indian Incometax Act. As section 34 1 then stood, the requisites of 1260 definite information companying into the possession of the Income-tax Officer in companysequence of which be discovered that income, profits or gains chargeable to income-tax had escaped assessment would certainly number have availed the Government in tracking down these substantial evaders of income-tax and it appears, therefore, to have been thought necessary that section 34 1 of the Indian Income-tax Act should be amended so as to enable the Income-tax Officer to take proceedings thereunder if he had reason to believe that by reason of omission or failure on the part of the assessee income, profits or gains chargeable to income-tax had escaped assessment for the relevant period. An amendment of section 34 1 in this manner would enable Government to pass on the requisite information which they had obtained in regard to the substantial evaders of incometax to the Income-tax Officers companycerned and ask the Incometax Officers to take proceedings against those evaders of income-tax under the amended section 34 1 of the Indian Income-tax Act. That appears to have been the real object of the amendment of section 34 1 of the Indian Income-tax Act with effect from the 8th September 1948. The Commission would proceed with the references which were made to them up to the 1st September 1948 and the Income-tax Officers companycerned would take the requisite proceedings under section 34 1 of the Indian Income-tax Act as amended after the 8th September 1948 against all persons whose income, profits or gains had escaped assessment including substantial evaders of income-tax whose cases would certainly have been referred by the Central Government for investigation to the Commission if it had been possible for them to do so before the first September 1948. After the 8th September 1948, there were two procedures simultaneously in operation, the one under Act XXX of 1947 and the other under the Indian Incometax Act with reference to persons who fell within the same class or category, viz., that of the substantial evaders of income-tax. After the 8th September 1948, therefore, some persons who fell within the class of substantial evaders of 1261 income-tax were dealt with under the drastic and summary procedure prescribed under Act XXX of 1947, while other persons who fell within the same class of substantial evaders of income-tax companyld be dealt with under the procedure prescribed in the Indian Income-tax Act after service of numberice upon them under the amended section 34 1 of the Act. Different persons, though falling under the same class or category of substantial evaders of income-tax, would, therefore, be subject to different procedures, one a summary and drastic procedure and the other a numbermal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947. The legislative companypetence being there, these provisions, though discriminatory, companyld number have been challenged before the advent of the Constitution. When, however, the Constitution came into force on the 26th January 1950, the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof, and whatever may have been the position before the 26th January 1950, it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 and others were subjected to the numbermal procedure prescribed in section 34 and the companynate sections of the Indian Income-tax Act, the procedure prescribed in Act XXX of 1947 being obviously discriminatory and, therefore, violative of the fundamental right guaranteed under article 14 of the Constitution. It would be numberanswer to suggest that those substantial evaders whose cases were referred by the Central Government for investigation by the Commission before the 1st September 1948 formed a class by themselves leaving others though belonging to the same class or category of substantial evaders of 1262 income-tax to be dealt with by the ordinary procedure prescribed in the Indian Income-tax Act without infringing the fundamental right guaranteed under article 14 of the Constitution. A similar argument had been, advanced before us by the learned Attorney-General appearing for the Commission in Shree Meenakshi Mills case, supra. The ground which he had urged was that the class of persons dealt with under section 5 1 of Act XXX of 1947 was number only the class of substantial tax dodgers but it was a class of persons whose cases the Central Government, by 1st September, 1948, had referred to the Commission and that class had thus become determined finally on that date, and that class of persons companyld be dealt with by the Investigation Commission under the drastic procedure of Act XXX of 1947 while section 34 of the Indian Income-tax Act as amended empowered the Income-tax Officer to deal with cases other than those whose cases had been referred under section 5 1 to the Investigation Commission Mahajan, C. J. who delivered the judgment of the Court dealt with this argument at page 795 1 as under As regards the first companytention canvassed by the learned Attorney-General it seems to us that it cannot stand scrutiny. , The class of persons alleged to have been dealt with by section 5 1 of the impugned Act was companyprised of those unsocial elements in society who during recent years prior to the passing of the Act had made substantial profits and bad evaded payment of tax on those profits and whose cases were referred to the Investigation Commission before 1st September, 1948. Assuming that evasion of tax to a substantial amount companyld form a basis of classification at all for imposing a drastic procedure on that class, the inclusion of only such of them whose cases had been referred before 1st September, 1948, into a class for being dealt with by the drastic procedure, leaving other tax evaders to be dealt with under the ordinary law will be a clear discrimination for the reference of the case within a particular time 1 1955 1 S.C.R. 787, 795. 1263 has numberspecial or rational nexus with the necessity for drastic procedure These observations were made to repel the particular argument of the learned Attorney-General but they did number lay down that in fact section 5 1 was companyfined to such a limited class. We are further supported in this view by the fact that by the later amendment of section 34 of the Indian Income-tax Act effected by Act XXXIII of 1954, the time limit for the issue of numberice under section 34 1-A of the Indian Incometax Act has been fixed as the 31st day of March 1956. It is, therefore, clear that the period originally fixed for the reference of the cases of substantial evaders of incometax for investigation by the Commission, viz. 30th June, 1948 or the extended period, viz., I St September, 1948 provided in section 5 1 of Act XXX of 1947 or the period fixed by the new section 34 1-A of the Indian Income-tax Act, viz., 31st day of March 1956 was number a necessary attribute of the class of substantial evaders of income-tax but was merely an accident and a measure of administrative companyvenience and was number an element in the formation of the particular class of substantial evaders of income-tax. It follows, therefore, that after the inauguration of the Constitution on the 26th January, 1950, the persons whose cases were referred for investigation by Central Government to the Commission up to the 1st September, 1948 companyld, to use the words of Mabaian C. J. in Shree Meenakshi Mills case, supra, at page 794ask why are we number being dealt with by the discriminatory and drastic procedure of Act XXX of 1947 when those similarly situated as ourselves can be dealt with by the Income-tax Officer under the amended provisions of section 34 of the Act? Even if we once bore a distinctive label that distinction numberlonger subsists and the label number borne by us is the same as is borne by persons who can be dealt with under section 34 of the Act as amended in other words, there is numberhing uncommon either in properties or in characteristics between us and those evaders of 1264 income-tax who are to be discovered by the Incometax Officer under the provisions of amended section 34. We may also add, adopting the same phraseology, that in our judgment, numbersatisfactory answer can be returned to this query because the field on which the amended section 34 1 operated from and after the 26th January 1950 included the strip of territory which was also occupied by section 5 1 of Act XXX of 1947 and two substantially different laws of procedure, one being more prejudicial to the assessee than the other, companyld number be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution. The result, therefore, is that barring the cases of persons which were already companycluded by reports made by the Commission and the directions given by the-Central Government under section 8 2 of Act XXX of 1947 culminating in the assessment or reassessment of the escaped income, those cases which were pending on the 26th January 1950 for investigation before the Commission as also the assessment or reassessment proceedings which were pending on the 26th January 1950 before the Income-tax Officers companycerned in pursuance of the directions given by the Central Government under section 8 2 of the Act would be hit by article 14 of the Constitution and would be invalidated. The R. C. Cases 516, 517 and 518 relating to M. Ct. M. Chidambaram Chettiar, M. Ct. Muthiah Chettiar and Devanai Achi were pending before the Commission on the 26th January 1950, the report therein number having been made by the Commission till the 26th August 1952 and the Commission had, after the 26th January 1950, numberjurisdiction to companyplete the investigation and make their report, the whole procedure being violative of the fundamental right guaranteed to the petitioners under article 14 of the Constitution. This position was number in terms argued before us by the learned companynsel for the petitioners. It was urged in the first instance that the case was governed by our decision in Shree, Meenakshi Mills case, supra, on 1265 the basis that by reason of the applications to the Commissioner of Income-tax, Madras, made by the petitioners under section 8 5 of the Act for reference to the High Court on questions of law arising out of the Income-tax Officers re-assessment orders above referred to, the proceedings under Act XXX of 1947 had number become final and the petitioners were, therefore, entitled to relief on the ratio of our judgment in that case. Reliance was placed in support of this position on the provisions of section 8 4 of the Act In all assessment or re-assessment proceedings taken in pursuance of a direction under sub-section 2 , the findings recorded by the Commission on the case or on the points referred to it shall, subject to the provisions of subsections 5 and 6 , be final but numberproceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income-tax Act,1922 XI of 1922 . Sub-section 5 has reference to, the application made by the assessee to the Commissioner of Income-tax to refer to the High Court any question of law arising out of the assessment or re-assessment orders and sub-section 6 has reference to the power of the Commission either of their own motion or on the application of the person companycerned or of the Central Government to companyrect clerical or arithmetical mistakes in their report or errors therein arising from any accidental slip or omission These provisions companytained in sub-sections 5 and 6 , however, would number make the findings recorded by the Commission any the less final. These findings were invested with finality subject to this that if the High Court, on reference under subsection 5 , gave any opinion which would require a revision of those findings or if any clerical or arithmetical mistakes were found or errors were detected arising from accidental slip or omission within the meaning of subsection 6 which also required some alterations in the findings, these findings would be divested of their finality and would have to be revised accordingly. The assessment or re-assessment orders made by the Income- 1266 tax Officers based upon those findings would also be binding on the assessees subject only to the result of the reference, if any, made to the High Court on questions of law arising out of such orders. If this was the true position, it companyld number be urged that by reason of the pendency of the applications for reference to the High Court the proceedings under Act XXX of 1947 had number been companycluded against the petitioners and it companyld number also be urged that when Act XXXIII of 1954 was enacted introducing section 34 1-A in the Income-tax Act with effect from the 19th July 1954, the R.C. Cases 516 to 518 were pending and the whole proceedings under Act XXX of 1947 against the petitioners were invalidated. As a matter of fact the -report had been made by the Commission against the petitioners as early as the 26th August 1952, the Central Government had given the directions under section 8 2 for re-assessment of the petitioners on the 16th September 1952 and the re-assessment orders for all the years except the year 1942-43 had been made by the Income-tax Officer against them by the 12th May 1954 which was long before the Act XXXIII of 1954 came into operation. All these reassessments had thus become binding on the petitioners and were number affected by the mere pendency of the applications for reference to the High Court made by them to the Commissioner of Incometax, Madras, under section 8 5 of the Act. There is also a further point to be companysidered in this companynection and it is that whatever discriminatory procedure the petitioners were subjected to by reason of the reference of their cases by the Central Government to the Commission under section 5 1 of the Act had been companypleted long before the Act XXXIII of 1954 came into operation and the only further procedure which they would be subjected under the provisions of Act XXX of 1947 would be that of a reference to the High Court on questions of law arising out of the orders of re-assessment if these applications were granted either by the Commissioner of Income-tax, Madras, or by the High Court on further application. In the event of such reference being 1267 made, the petitioners had the additional advantage of having their references heard by the High Court in a Bench companystituted of number less than three Judges as companytrasted with the numbermal procedure obtaining under sections 66 and 66-A of the Indian Income-tax Act under which the references companyld be beard a Division Bench of the High Court. Whatever was, therefore, the procedure to which the petitioners would be subjected under Act XXX of 1947, after the companying into operation of Act XXXIII of 1954 it was, instead of being prejudicial to them, really advantageous to them, and following our decisions in the cases of Syed Qasim Razvi v. The State of Hyderabad and Others 1 and Habeeh Mohamed v. The State of Hyderabad 2 , we are of the opinion that the further proceedings, if any, which companyld be taken under the provisions of Act XXX of 1947 would number be at all discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution. The only relief which the petitioners would have been entitled to in that event would have been one in regard to the re-assessment proceedings for the year 1942-43 which were pending before the Incometax Officer by virtue of the numberice under section 34 issued by him to the petitioners on the 19th March 1954. Reliance was placed upon a decision of the Allahabad High Court reported in Gangadhar Baijnath and others v. Income-tax Investigation Commission, etc. 3 in support of this position. The learned Solicitor-General did number companytest this position but undertook on behalf of the Income-tax authorities that they will number proceed against the petitioners for the re-assessment for the year 1942-43 in pursuance of the numberice under section 34 served upon them in that behalf. This would have been the only relief to which the petitioners would have become entitled on the main companytention urged by them in their petition. The petitioners are, however, entitled to succeed on the alternative companytentions which were raised by them as 1 1953 S.C.R. 589. 2 1953 S.C.R. 661. A.I.R. 1955 All. 515. 1268 the result of the companyclusion which we have reached above in regard to the proceedings pending before the Commission having become discriminatory after the 26th January 1950 by reason of section 5 1 of the Act having become unconstitutional after the inauguration of the Constitution,on that date. In the result, the petitioners will be entitled to the issue of a writ of certiorari quashing the report of the Incometax Investigation Commission dated the 29th August 1952 and the assessment orders of the Incometax Officer for the years 1940-41, 1941-42 and 1943-44 to 1948-49 as being unconstitutional, null and void, and also to the issue of a writ of prohibition against the respondents from implementing the findings of the Investigation Commission referred to above with regard to the ear 1942-43 and we do order that such writs do issue against the respondents accordingly. The respondents will pay the petitioners companyts of this petition. JAGANNADHADAS J.-This petition raises the question whether section 5 1 of the Taxation on Income Investigation Commission Act, 1947 Act XXX of 1947 hereinafter referred to as the Investigation Commission Act is unconstitutional as offending article 14 of the Constitution and has therefore become void on the companying into force of the Constitution on the 26th January, 1950. This question was specifically left open in the two previous decisions of this Court, viz. in Suraj Mall Mohta Co. v. A. Y. Visvanatha Sastri 1 and Shree Meenakshi Mills Ltd. v. A. V. Visvanatha Sastri 2 . Almost the identical question arose in the Travancore Appeals 3 in which judgment has just number been delivered. The provision with which we were companycerned in those appeals is section 5 1 of Travancore Act XIV of 1924 which is almost in identical terms as section 5 1 of the Investigation Commission Act. We have held that this section of the Travancore Act did number, on the companying 1 1955 1 S.C.R. 448. 2 1955 1 S.C.R. 787. A. Thangal Kunju Musaliar Y. Authorised Official, I. T. 1955 2 S.C.R. 1196. 1269 into operation of the Constitution, violate article 14 thereof and that it accordingly companytinued to be valid. This result was based on the following companyclusions. The expression a person who has to a substantial extent evaded payment of taxation on income has to be interpreted having regard to the background or the circumstances that preceded at the time the section came to be enacted and which were disclosed in the affidavit filed in this Court by the Secretary of the Investigation Commission and so interpreted the word substantial indicates with reasonable certainty the class of persons intended to be subjected to the drastic procedure of the Act. The selective application of the law to persons in this class cannot be companysidered invalid since the selection is guided by the very objective set out in section 5 1 itself The fact that some persons may escape the application of the law is number necessarily destructive of the efficacy of the provision. It was also held, on a companyparison with section 47 of the Travancore Act XXIII of 1121, companyresponding to -section 34 of the Indian Income-tax Act, 1922 XI of 1922 as it stood prior to its amendment in 1948, that the persons who fall under the class of substantial evaders of income-tax within the meaning of section 5 1 of the Investigation Commission Act were number intended to be and companyld number have been dealt with under the provisions of section 47 of the Travancore Act XXIII of 1121 and that therefore there would be numberdiscriminatory application of two parallel statutory provisions. In the present case, however, the majority of the Court has taken the -view that section 5 1 of the Investigation Commission Act has become unconstitutional by the date of the Constitution in companyparison with section 34 of the Income-tax Act as amended in 1948. It was pointed out that section 47 of the Travancore Act XXIII of 1121 which was the same as section 34 of the Income-tax Act as it stood from 1939 to 1948 did number undergo any amendment by the date of the Constitution but companytinued as be- 1270 fore and it is said that this makes a difference. I feel companystrained, however, with the utmost respect, to hold, on a careful companysideration that there is numberroom for making any such distinction which is relevant for the purposes if this question. Undoubtedly it is true that section 34 of the Income-tax Act as it stood prior to 1948 is more restrictive in its operation than the same section as amended in 1948. But I am unable to see how the class falling under section 5 11 of the Investigation Commission Act is still number different from that which falls within amended section 34 of the Income-tax Act. Under section 5 1 of the Investigation Commission Act the requirement is that the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income. This is quite different from the criterion applicable under the amended section 34 of the Income-tax Act. In the first place, section 34 of the Income-tax Act relates to cases of evasion however small, while section 5 1 of the Investigation Commission Act relates only to large-scale evaders companyprised within the term substantial evasion. Secondly, the belief of the Government as to the existence of evasion need number satisfy any rigorous standard because it need number be based on any material directly companynected with the suspected evasion. It is enough if it is a prima facie reason to believe which having regard to the scheme of the Act would companyer cases in which tell-tale appearances may call for probing and effective investigation. This may well be numbermore than well-grounded reason to suspect. This is quite different from the standard of reason to believe required of the Income-tax Officer under section 34 of the Income-tax Act. Prima facie reason to believe and reason to believe are as different from each other as prima facie proof and proof. Therefore reason to believe is something definitely higher than reason to suspect. Indeed it is difficult to companypare the standards required under the two sections. Though numberdoubt the power exercisable by the Central Government under,, section 5 1 of the 1271 Investigation Commission Act and that exercisable by the Income-tax Officer under section 34 of the Income-tax Act have this in companymon that both have reference to reason to believe, the standard of belief and the basis of belief is expressed in such different terminology that it is number possible to companypare the two and equate the two as being the same. Nor indeed can it be posited that every case of the class companyprised in section 5 1 of the Investigation Commission Act must necessarily fall within section 34 of the Income-tax Act. Apart, however, from any question as to the companyparison between the two sections and as to the standards and basis of the belief required, once it is accepted as has been done in the Travancore Appeals 1 that substantial evasion is a definite legal standard determinative of a distinct class, it is clear that the class companyprised thereunder is number identical with the class companyprised under section 34 of the, Income-tax Act. In the alternative, it is a select group of a wider class. If the smaller grouping is on a rational basis relevant to the policy of the Act, it would form a distinct class by itself for purposes of article 14. It is necessary at this stage to bear in mind the entire scope of the Investigation Commission Act in order to determine what the class is which is companytemplated and companyered by it. Five main features may be numbericed of the scheme of the Investigation Commission Act. It relates only to those in respect of whom the Government have .prima facie reason to believe that there has been substantial evasion of tax. The belief does number result straightaway in proceedings for reassessment unlike under section 34 of the Income-tax Act but the question of reassessment i.e., reopening of the assessment depends on investigation into the companyrectness of that belief. The first step in the scheme is section 5 2 which companytemplates that the investigation may result in substantial A. Thangal Kunju Musaliar v. Authorised official I.T., 1955 2 S.C.R. 1196. 1272 evasion number being revealed. If so the further proceedings would be dropped on a report by the Commission to that effect. Hence numberreassessment starts in such a case. An effective procedure for investigation is provided to bring out all the necessary and relevant facts and material to substantiate the evasion and quantum thereof Proceedings for reassessment are taken only on the emergence of such material and on a report to that effect and that too on a further direction by the Government as to the exact nature of the proceedings to be taken and as to the exact period to be companyered falling within the limits of 31st December, 1938 and 1st September, 1948. See sections 8 2 and 5 3 of the Investigation Commission Act . A reference companyld be made by the Government to the Commission only up to a specified date line statutorily determined. If all these facts which are essential part of the scheme under the Investigation Commission Act are borne in mind it becomes apparent that the class companytemplated under section 5 1 of the Investigation Commission Act for reassessment is totally different from that which companyld be got at either under section 34 of the Income-tax Act as it stood between 1939 and 1948 or as it stands since 1948. One has only to companypare the provisions in the Income-tax Act relating to the means by which the numbermal income-tax authorities can get information or obtain material which might lead to a reopening of the assessment under section 34 of the Incometax Act to appreciate that the class companytemplated under section 5 1 of the Investigation Commission Act cannot be the same. The only provisions in the income-tax law for the purpose are sections 37, 38 and 39 of the Incometax Act. The primary scheme of the Income-tax Act is that the basic materials for the assessment are the returns and the accounts or other evidence to be furnished by the assessee himself sections 22 and 23 of the Income-tax Act or the checking material that may be available from the returns and the accounts 1273 of other assessees who have transactions with this assessee. It may also companysist of information received from other public authorities, etc., as well as the examination of persons appearing to have interconnected transactions. The Income-tax Officer has number the power to probe into suspicious features or obtain and seize material in verification or support thereof. All that numbermally he can do, where there is room for grave suspicion is to reject the accounts and make his assessment on the basis of best judgment , see section 23 4 of the Income-tax Act which cannot be sustained if it is a wild guess based on mere suspicion. Now, the whole scheme of the Investigation Commission Act is obviously inspired by the realisation that the numbermal machinery available to the Income-tax Officer for the reassessment of large scale suppressed income is number adequate. All the same, the Legislature realising that drastic investigation into the affairs of assessees on seemingly well grounded suspicions might result in serious encroachment of personal liberties, has number chosen to vest the Income-tax Officer with any such powers of investigation and has companyfined this drastic procedure to evasion of income during the period companymencing 1st January, 1939 to the 1st September, 1948 vide sections 8 2 and 5 3 of the Investigation Commission Act and limited the same to cases of substantial evasion. In companysidering, therefore, what is the ambit of the class companytemplated by section 5 1 of the Investigation Commission Act, it is necessary to remember these features of the scheme. It would follow that the class companyprised in section 5 1 is the class of substantial evaders -whose evasion appeared to the Government to call for a high-powered machinery for effective investigation, number available to an ordinary Income-tax Officer functioning under section 34 of the Income-tax Act. So understood it is quite clear, to my mind, that section 5 1 of the Investigation Commission Act relates to a class totally different from what can be brought in under -section 34 of the Income-tax Act as it, either stood before, or stands after, 1948. That this class was 1274 really companytemplated to be distinct is also indicated by the following provision of section 8 4 of the Investigation Commission Act. No proceedings taken in pursuance of such direction direction made under section 8 2 for reassessment shall be a bar to the initiation of proceedings under section 34 of the Indian Income-tax Act. This seems to indicate the possibility of companycurrent assessment proceedings as against any particular assessee under section 34 of the Income-tax Act as also under section 8 2 of the Investigation Commission Act. The idea appears to be that section 34 proceedings may go on in respect of such income of the assessee the escaping of which companyes to the knowledge of the officer by the numbermal procedure, and that the reassessment under the Investigation Commission Act is expected to be in respect of such evaded income which is to be discovered only as a result of regular and effective investigation. It has been suggested in the companyrse of arguments that numberobjection companyld be taken to Government taking only sufficient powers for investigation in appropriate cases, without any question arising as to discrimination or classification but that this cannot justify discriminatory procedure as regards actual reassessment. That raises a different aspect of the matter which will be presently dealt with. Assuming however that substantial evaders companytemplated under section 5 1 of the Investigation Commission Act fall also within the larger class of evaders who fall within the class companytemplated by section 34 of the Income-tax Act as it stands, what follows? The selective group under section 5 1 of the Investigation Commission Act is determined with reference to the criteria 1 that they are substantial evaders of income-tax, and 2 that they are assessees within the period 1939 to 1948 which is well-known to be the period of war profits and black-marketing and in respect of whom the Government get information before 1st September, 1948, justifying investigation. This is by itself a welldefined class and the 1275 classification has a reasonable relation to the object to be achieved, viz., the catching up of the escaped black-market war profits, for assessment. It is to be assumed that the Government would have made their references to the Investigation Commission of all the cases of persons about whom they have the requisite belief or information before 1st September, 1948. If there are any war profiteers of that period against whom there was numberinformation by then and against whom information becomes available later, it will be probably found that the information so received is number such as to enable the ordinary Income-tax Officer to rope him in. It may turn out that he has evaded once for all. But even if, in some cases, the Incometax Officer companyld by the ordinary process get the escaped income of such assessees for reassessment, that by itself is numberground for thinking that a classification of substantial war profiteers who have evaded income-tax and against whom there was information up to a specified date is number in itself a valid classification. It is well-recognised that a classification otherwise reasonable is number invalid by reason of the classification number being companyprehensive. In Joseph Patsone v. Commonwealth of Pennsylvania 1 the Supreme Court of the United States of America laid down thata state may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be companysidered to define those from whom the evil mainly is to be feared, it properly may be picked out. A. lack of abstract symmetry does number matter. The question is a practical one dependent upon experience It is number enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. Again in West Coast Hotel Co. v. Ernest Parrish 2 the same Court stated- This Court has frequently held that the legisla- 1 282 U.S. 138, 144 58 L. Ed. 539, 543. 2 300 U.S. 379, 400 81 L.Ed. 703, 718. 1276 tive authority, acting within its proper field, is number bound to extend its regulation to all cases which it might possibly reach. The legislature is free to recognize degrees of harm and it may companyfine its restrictions to those classes of cases where the need is deemed to be clearest. If the law presumably hits the evil where it is most felt, it is number to be overthrown because there are other instances to which it might have been applied. There is numberdoctrinaire requirement that the legislation should be companyched in all embracing terms. It is substantially the above view of permissible classification for the purposes of article 14 that has been recognised by this Court in Sakhawat Ali v. The State of Orissa 1 where this Court laid down as follows Legislation enacted for the achievement of a particular object or purpose need number be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are companyered by the legislation are left out would number render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution. Even if therefore section 34 of the Income-tax Act as amended in 1948 is wide enough in its ambit to catch up any and every case which companyld be dealt with under section 5 1 of the Investigation Commission Act, it is still a distinctive and selective group out of a larger group and is a class by itself determined with reference to the criteria above indicated. It is numberobjection to the companystitutionality of that classification that some out of them who may have been left out may be-taken up later for being proceeded against under the amended section 34 of the Income-tax Act. The class falling within the scope of the Investigation Commission Act is a class closed with reference to the date-line, 1st September, 1948, and it appears to me difficult to envisage the possibility of any member 1 1955 1 S.C.R. 1004, 1010. 1277 of that class being available to be dealt with by the Income-tax Officer under the amended section 34 of the Income-tax Act which came into operation from after that date-line except by imputing mala fides to the Government in the selective application of section 5 1 of the Investigation Commission Act. It is true that the date-line was changed by legislature from 30th June, 1948 to 1st September, 1948. But it was an essential part of the whole scheme of the legislation that there was to be numberreference beyond a dateline to be fixed by the legislature, so as to limit the application of the Act. Hence it is also an attribute of the class companytemplated by the Act. I am aware that there are observations in Suraj Mall Mohtas case 1 and Shree Meenakshi Mills case 2 which appear number to have accepted the idea of the class being with reference to a date-line. But the actual decision in Suraj Mall Mohtas case 1 was based on the distinction between section 5 4 and section 5 1 of the Investigation Commission Act and the companysequential parallelism between the class falling under section 5 4 , of the Investigation Commission Act and section 34 1 of the Income-tax Act. In Meenakshi Mills case 2 the decision was rested on the parallelism between section 5 1 of the Investigation Commission Act and section 34 1 of the Income-tax Act as amended in 1954. The decision in neither of these cases was based on any final determination of the scope of the class companytemplated by section 5 1 of the Investigation Commission Act. The actual decisions in those cases are of companyrse binding but number necessarily all the reasoning therein. Besides, with great respect, the relevancy of the date-linein section 5 1 as having been related to the then companytemplated date for the lapse, in 1948, of the companytrols under the Essential Supplies Temporary Powers Act, 1946 Act XXIV of 1946 was number numbericed. The principle of Sakhawat Alis case 3 was number also by then laid down by this Court that case-having been decided later in November, 1954 . 1 1955 1 S.C.R. 448. 2 1955 1 S.C.R. 787. 3 1955 1 S.C.R. 1004, 1010, 1278 Further, even if the date-line is number an essential part of the classification under section 5 1 of the Investigation Commission Act, the other four essential features of the scheme of the class companytemplated in section 5 1 as set out by me above are by themselves enough to companystitute a companyplete and rational differentiation of the class companyprised under section 5 1 of the Investigation Commission Act from that under section 34 1 of the Incometax Act as amended in 1948. If on such a classification some cases of substantial evasion happen to have escaped the machinery of the Investigation Commission Act, that would number invalidate the classification on the principle accepted in Sakhawat Alis case 1 . I am in any case unable to visualise the reasonable possibility of any person falling within the category companytemplated under section 5 1 of the Investigation Commission Act, being taken up for reassessment under section 34 of the Income-tax Act as amended in 1948 and companysequently of two parallel reassessment proceedings relating to such persons remaining pending by the 26th January, 1950, so as to bring about discriminatory operation between them and to render section 5 1 of the Investigation Commission Act ultra Vires in respect of such pending matters. It appears to me, therefore, that section 5 1 of the Investigation Commission Act and the other sections following thereupon cannot be declared unconstitutional on the ground of absence of reasonable classification. One other matter has been relied upon as being relevant. It was pointed out that the amendment of section 34 of the Income-tax Act in 1948 was simultaneous with the amendment of section 5 3 of the Investigation Commission Act, extending the time for a reference under section 5 1 by the Central Government up to the 1st September, 1948. It has been suggested that this clearly shows the intention of the legislature to the effect that after the 1st September, 1948, all cases which might have fallen under section 5 1 of the Investigation Commission Act are left to be dealt with under section 34 of the 1 1955 1 S.C.R. 1004, 1010. 1279 Act as amended. It appears to me with respect that there is numberbasis for this inference. On the other hand it appears to me if what I have said above as being the scheme of the Investigation Commission Act is companyrect that the legislature deliberately limited the application of the Investigation Commission Act by a date-line, realising the seriousness of its companytinued operation. It did number want to perpetuate the drastic provisions thereof to any new cases in view of the fact that the official war period ended and companytrols had been lessened by the above date-line, if number totally abolished. It may be mentioned that by proclamation, the war situation was formally terminated as from the 1st April, 1946, and that the Control Orders under the Defence of India Act ceased to be operative from the 1st October, 1946, and that the Essential Supplies Temporary Powers Act, 1946, was passed in substitution thereof This 1946 Act was intended originally to be in operation only until March, 1948. See Joylal Agarwala v. The State 1 . The date-line of 1st September, 1948, in section 5 1 seems to be related to this situation. It appears to me that with the full companysciousness that any new cases of the same category, if any, are number likely to be caught up under the numbermal procedure, the legislature merely purported by virtue of the amended section 34 of the Incometax Act to remove certain lacuna in the numbermal machinery, which had been numbericed and reported upon by the income-tax administration and by the Investigation Commission, with reference to section 34 as it stood between 1939 to 1948. See paragraph 22 of the General Report of the Income-tax Investigation Commission issued in 1948 making its recommendations for the improvement of the machinery at page 8 of that report and Appendix A thereto which would show that amendment of section 34 was number companynected with the extension of the date for making references under section 5 1 of the Investigation Commission Act . I am unable, therefore, to assume that the simultaneous enactment of section 34 of the Incometax Act and the amendment of Investigation Com- 1 1952 S.C.R. 127, 130. 1280 mission Act in 1948 have a bearing on the question at issue. Undoubtedly the re-assessment proceedings under the Investigation Commission Act appear to deprive the assessee of certain procedural advantages. He is deprived of an appeal on facts to the Appellate Assistant Commissioner and to the Income,-tax Appellate Tribunal. He is given the right of appeal only on points of law by means of a reference to the High Court. But such reference is to be heard by a Bench of number less than three Judges. Now, once there is a valid classification the nature and extent of the actual discrimination which results under the scheme of legislation relating thereto is largely a question of policy, which the companyrts have numberhing to do with, except possibly where the discrimination has numberreasonable relation to the policy and purpose of the classification. The policy underlying the Investigation Commission Act is, as already stated, to catch up for reassessment large scale evasions of income-tax of the war period. It -is obvious that having regard to the magnitude of the interests that would be involved therein, it was quite legitimate that the matters companycerned therewith, should be entrusted to a highlyqualified and high-powered authority, and number to the ordinary machinery. No grievance can be made if the legislature thought fit number to entrust the responsibility for fact-finding to the numbermal machinery involving lesser qualifications and experience. It is true that the investigation might have been placed in the bands of one authority and the fact finding on the material so gathered in the hands of another authority or that at least there might have been provided one appeal on facts also to a highplaced authority like the High Court. It may also appear somewhat disquieting that the same body is invested both with the power of investigation and the power of factfinding and that there is numberappeal provided as against its findings on facts. But these are all matters of policy and cannot be said to be either unreasonable or unrelated to the purpose and policy of the classification. Investigation is a company-- 1281 prehensive term and it will be seen that the investigation procedure itself under the Act is in two stages, one before the authorised official at which the assessee is number entitled to be represented and the other before the Investigation Commission at which the assessee is entitled to be represented by a pleader, a registered accountant or an authorised employee vide section 7 3 and the proviso thereto . These two stages may be taken roughly, though number necessarily, to indicate two parts of the investigation, 1 the process of probing into the evasion and companylecting the material in support of it, and 2 arriving at companyclusions with reference to the material so companylected and presented. The latter is the judicial part at which the Commission is directed under section 7 2 to follow the principles of the Indian Evidence Act and to give the assessee a reasonable opportunity of rebutting evidence and generally to act in accordance with the principles of natural justice. The procedure relating to this stage is assimilated to a judicial enquiry in a larger measure than is the procedure before the Income-tax Officer or the Appellate Assistant Commissioner, in respect of whose proceedings there is numberprovision that they must follow as far as practicable the principles of the Indian Evidence Act, See section 23 of the Income-tax Act . It is wellsettled that the assessment proceedings by the Income-tax Officer under section 23 of the Incometax Act-and hence also under section 34 therefore number regulated by the technical standards of evidence though of companyrse they cannot be based on caprice or suspicion. It would, therefore, appear that according to the scheme of the Investigation Commission Act, the judicial part of it approximates much more to judicial standards than the assessment proceedings by the income-tax authorities and that though in theory there is a companybination of the functions of an investigator and the judge in the Investigation Commission, in numbermal practice it is likely to be kept distinct by the appointment of an authorised official to companyduct the first portion. It is also to be remembered that the companybination of the investigator 1282 and judge is inherent even in the numbermal income-tax machinery where the Income-tax Officer and the Assistant Income-tax Commissioner are in the nature of Judges interested in their own cause. - It has been suggested that there is something opposed to ordinary canons of judicial procedure or natural justice in the matter of making relevant documents available to the assesee in the proceedings before the Investigation Commission. It appears to me, with respect, that this is based on a misapprehension. It is true that section 7 4 of the Investigation Commission Act says No person shall be entitled to inspect, call for, or obtain companyies of, any documents, statement or papers or materials furnished to, obtained by or produced before the Commission or any authorised official in any proceedings under this Act but the Commission, and after the Commission has ceased to exist ,such authority as the Central Government may in this behalf appoint, may, in its discretion, allow such inspection and furnish such companyies to any person, and section 6 8 of the Investigation Commission Act says All material gathered by the Commission or the authorised official and materials accompanying the reference under subsection 1 of section 5 may be brought on record at such stage as the Commission may think fit. But these provisions have to be read subject to the proviso to section 7 4 and to the opening part of section 7 2 of the Investigation Commission Act. The proviso to section 7 4 is as follows Provided that, for the purpose of enabling the person whose case or points in whose case is or are being investigated to rebut any evidence brought on the record against him, he shall, on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act, be furnished with certified companyies of documents, statements, papers and materials brought on the record by the Commission. Further, the opening part of section 7 2 says 1283 In making an investigation under clause b of section 3, the Commission shall act in accordance with the principles of natural justice, shall follow as far as practicable the principles of the Indian Evidence Act, 1872, and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him The above provisions preclude the possibility of the Commission pushing in into the final record on which the report is to be based any ex parte material to which the assessee has had numberaccess. These also preclude the possibility of depriving him of the use of any relevant material in the Commissions possession which the assessee may call for. All that section 7 4 implies is that the assessee is number entitled to a roving inspection of the material gathered by the Investigation Commission in the companyrse of investigation, which may relate to the affairs of various other persons. Such a provision is number opposed to natural justice for even in the matter of criminal judicial trials the accused is number entitled to a roving inspection of the material gathered by the police during investigation. I may numberice, with very great respect, that the observation in Suraj Mall Mohtas case 1 at page 464 that the proceedings before the Income-tax Officer are judicial proceedings and that therefore all the incidents of such judicial proceedings have to be observed, i.e., in other words, the assessee should be entitled to inspect the record and all relevant documents seems to have failed to numbere that section 37 1 specifically limits the judicial character of the proceedings to the purposes companyered by sections 193, 196 and 228 of the Indian Penal Code and also that the said section vests in the Income-tax authorities, the powers of a companyrt only for specified purposes . If, therefore in view of all these circumstances the Legislature thought fit to entrust the companybined responsibility for investigation and fact-finding to a single high-powered and highly qualified body companysisting of three members of whom one is or has been a Judge of the High Court and made their findings of 1 1955 1 S.C.R. 448. 162 1284 fact final, without providing for access to the regular heirarchy of appeals to the Assistant Commissioner and a Bench of two members of the Income-tax Appellate Tribunal, there appears to be numberhing unreasonable therein. On the other hand there are companynter,balancing features with reference to the companyposition of the Commission and the statutory standards by which the judicial part of its proceedings have to be governed. I am, therefore, unable to feel that the discrimination brought about in the procedure relating to assessment calls for any such adverse reaction as to be a reasonable basis for founding thereon an inference of unconstitutional inequality. However, as I have already said above, this appears to be ultimately a question of policy. Once the classification is found to be justified and reasonably related to the clearly underlying policy of the Investigation Commission Act, I am unable to feel that section 5 1 of the Investigation Commission Act can be struck down as ultra vires in relation to its supposed companycurrent operation with section 34 of the Incometax Act as amended in 1948. I hold, therefore, that section 5 1 of the Investigation Commission Act was number hit by article 14 of the Constitution numberwithstanding amendment of section 34 of the Income-tax Act in 1948 and that it companytinued to be valid. On all other points urged on behalf of the petitioners, I agree with the view expressed in the judgment delivered by my learned brother Justice Bhagwati on behalf of the majority of the Court.

Madan B. Lokur, J. The primary question for companysideration in this writ petition under Article 32 of the Constitution is whether the provisions of the Orissa Municipal Act, 1950 are applicable to Sundargarh district in Odisha. It is number in dispute that Sundargarh district is a declared Scheduled Area in terms of Clause 6 1 of the Fifth Schedule to the Constitution. This Clause reads as follows Scheduled Areas. 1 In this Constitution, the expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Areas. The administration and companytrol of a Scheduled Area is provided for in Article 244 of the Constitution which reads as under- Administration of Scheduled Areas and Tribal Areas 1 The provisions of the Fifth Schedule shall apply to the administration and companytrol of the Scheduled Areas and Scheduled Tribes in any State other than the States of Assam Meghalaya, Tripura and Mizoram. The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam, Meghalaya, Tripura and Mizoram. What follows from this is that an area may be declared by the President as a Scheduled Area as has happened in the case of Sundargarh and the administration and companytrol of that area is then governed by the Fifth Schedule to the Constitution. Scheduled Areas are also referred to in Part IX-A of the Constitution. This Part came into effect from 1st June 1993 through the Constitution Seventy-fourth Amendment Act, 1992. This Part companycerns itself with the establishment, companystitution, powers and functions of municipalities as institutions of self government. For the present purposes, we are companycerned with Article 243-ZC and Article 243-ZF in Part IX-A. These provisions read as follows 243ZC. Part number to apply to certain areas. 1 Nothing in this Part shall apply to the Scheduled Areas referred to in clause 1 , and the tribal areas referred to in clause 2 , of article 244. Nothing in this Part shall be companystrued to affect the functions and powers of the Darjeeling Gorkha Hill Council companystituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal. Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause 1 subject to such exceptions and modifications as may be specified in such law, and numbersuch law shall be deemed to be an amendment of this Constitution for the purposes of article 368. 243ZF. Continuance of existing laws and Municipalities.Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the companymencement of the Constitution Seventy-fourth Amendment Act, 1992, which is inconsistent with the provisions of this Part, shall companytinue to be in force until amended or repealed by a companypetent Legislature or other companypetent authority or until the expiration of one year from such companymencement, whichever is earlier Provided that all the Municipalities existing immediately before such companymencement shall companytinue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. A BREAK-DOWN OF THE PROVISIONS OF ARTICLE 243-ZC OF THE CONSTITUTION MAKES IT CLEAR THAT A PART IX-A DOES NOT IPSO FACTO APPLY TO SCHEDULED AREAS ARTICLE 243-ZC 1 B PARLIAMENT MAY, BY LAW, EXTEND THE PROVISIONS OF PART IX-A TO A SCHEDULED AREA SUBJECT TO EXCEPTIONS AND MODIFICATIONS ARTICLE 243-ZC 3 .

2003 Supp 1 SCC 152 The Judgment of the Court was delivered by C. LAHOTI, J. General Elections to the Assam Legislative Assembly were held in the months of April May, 2001. For numberl 15, Moran Legislative Assembly Constituency, the appellant, the respondent No 1 and respondent No.2 filed their numberination papers respectively as candidates of the Indian National Congress, Asom Gana Parishad and Nationalist Congress Party. The respondents No.3, 4 and 5 filed their numberination papers as independent candidates. The appellants election symbol was Hand while that of respondent No.l was Elephant. The respondent No.l was declared elected, defeating the nearest rival, the appellant, by a margin of 850 votes. The final result sheet shows the distribution of votes as under- Total votes polled 67,581 No. of Rejected votes 2,436 Jibontara Ghatowar App. 26,927 Sarbananda Sonowal R-l 27,777 Hareshwar Changmai R-2 1,241 Joy Chandra Nagbanshi R-3 7,902 Biren Borah R-4 995 Lukua Changmai R-S 303 The appellant filed an election petition laying challenge to the election of the respondent No.l seeking its avoidance and also for declaring herself as duly elected. The success or failure of the election petition depended on the fate of the prayer for recount of ballot papers made in the election petition founded on the following grounds, as summed up by the High Court in its judgment- Out of total 2436 votes rejected as many as 834 Nos. of votes in respect of polling station numberl 1, 25, 60, 66, 76, 92, 102 and 103 were rejected for absence of the signature of the Presiding Officer and distinguishing mark or seal on the ballot papers. According to the petitioner, all these votes were cast in favour of the petitioner who had companytested the election as a candidate of the Indian National Congress I with the symbol of the above votes were improper. Total No. of 634 ballot papers companycerning polling station No.l, 8, 11, 12 and 28 which were casted in favour of the petitioner were illegally companynted in favour of the respondents by placing these ballot papers in the box of the respondents. It is submitted that in some cases the Top and the Bottom ballot papers were in favour of the respondent, whereas the inbetween 48 Nos. of ballot papers in the bundle of 50 belonged to the petitioner and the entire bundle was companynted in favour of the respondent. The arrangement in the companynting hall was far from satisfactory and there was companygestion in the area earmarked for the companynting agent for the various political parties. It is further alleged that a large number of unauthorized persons entered into the companynting hall and interfered into smooth companynting of votes affecting the orderly companynting of votes. The petitioner filed two applications for re-counting of the votes but without passing any order, the results were declared in violation of the provisions of the Act. It is number necessary to reproduce the pleadings of the parties in this judgment and it would suffice if the relevant issues are reproduced from the record of the High Court which highlight the companytroversy around which the trial election petition has moved. Issues Nos. 1 to 5 are as under- Whether the allegation companytained in para 32 of the E.P. as well as the application for recounting of the votes made to the Returning Officer, made out a case for recounting of votes on the grounds of materially affecting the result of the Election. Was there any improper rejection of valid votes of the petitioner in companyrse of companynting of No. 115 Moran LAC in respect of polling station Nos. 1, 11, 25, 60, 64, 66, 76, 92, 102 and 103? Was there any improper reception of votes and void votes in favour of the respondents No.l in companyrse of companynting of votes of 115 Moran LAC in respect of Polling Station No.l, 8, 11, 12, 28 and 64 by way of misplacing ballot papers companytaining votes cast in favour of the election petition in the companypartment meant for respondent No. 1 and companysequently companynting the same in favour of respondent No.l? If issue No.4 is decided in favour of the election petitioner whether she is entitled to be declared as elected to No.l 15 Moran Legislative Assembly Constituency? To what other relief s the petitioner is entitled to? Eleven witnesses, including himself were examined by the election petitioner. The respondent No.l himself appeared in the witness box and examined himself. The Returning Officer Shri B.K Pegu was examined. A few official witnesses were also examined. The High Court found that during the companynting the election petitioner had preferred an application Annexure-3 seeking a recount. An identical companyy thereof Annexure-E was also moved, the exact time whereof is number known. However, both the applications were moved on 13.5.2001, the day of companynting and when the companynting was still going on. These applications, Annexure-3 and Annexure-E, were quite brief each companytaining two sentences only, reading as under- Sub. Application for recounting. With reference to the subject cited above I hereby want to state that that the companynting which has been taken place today is number satisfactory for me. So I want to request as a candidate of Indian National Congress from Moran Assembly Constituency for recounting of all the ballot Boxes. Thanking you Sd - These applications were rejected by the returning officer on the ground that the applications did number set out any ground for directing a recount. On the same day, the petitioner presented yet another application for recount which reads as under- Dated 13th May, 2001 To The Returning Officer, 115 Moran L.A.C. Sub. Application for re-counting of the above 115 Moran Cons. Sir, With reference to the subject mentioned above, 1 have the honour to request you to grant re companyntig in the above Moran 115 LAC for the following reasons below stated. In Center No. 103 where re-poll was ordered and re-poll was held on 12th May under proper Security arrangement by the authority and re-poll has done peacefully in the center. It is found that 435 approximately ballot papers were cast in my favour but without the signature of the Presiding Officer and distinguished marks for numberfault of mine. The same is the case in Center No. 46 about 150 ballot papers were rejected on the above mentioned ground. In center No. 30 as per Presiding Officer Diary 697 ballot papers were issued and the same were casted after companynting, it was found to be 721. Many of the companyntersigned ballot papers disputed were accepted in favour of opposite party candidate. Therefore, I have great apprehension that justice was number done to me and I strongly urge upon you to order for recounting in the above mentioned 115 Moran Cons. LAC and also I have reason to believe that the with intention the presiding officer was malafide. Thanking you in anticipation. Received Jibontara Ghatowar 13.5.2001 Sd - Illegible INC Candidate 115 Moran LAC 13.5.2001 A. to DC and DEO Dibrugarh Seal Deputy Commissioner Dibrugarh District Dibrugarh. Verification I, Smt. Jibontara Ghatowar, wife of Shri Paban Singh Ghatowar, aged about 40 years, resident of ushapur, Moran Town, P.O. Moranhat, in the District of Sibsgar, Assam , election petitioner of the accompanying election petition do hereby solemnly affirm and verify that the Annexure -4 to the election petition is a typed companyy of the receipt companyy of another application dated 13.5.2001 sumitted by me to the returning officer of No. 115 Moran L.A.C praying for ordering recount of all the ballot papers in respect of No. 115 Moran L.A.C receipt of which was acknowledged by the personal Assistant of Deputy Commissioner, Dibrugarh who is also the Returning Officer of No. 115 Moran L.A.C on 13.5.2001. And in proof thereof, I sign this verification on this the 25th day of June, 2001 at Guwahati. Jibontara Ghatowar The Deputy Commissioner. Dibrugarh was the appointed returning officer. At the venue of companynting he was accompanied by his P.A. The application Annexure P-3 was received by the P.A. and he made an endorsement on the application of having received the same on 13.5.2001, signed the endorsement of presentation in the capacity of P.A. to DC and DEO, Dibrugarh and also affixed the rubber stamp of Deputy Commissioner thereunder. PA, DC and DEO are abbreviations respectively for Personal Assistant, Deputy Commissioner and District Election Officer. The application Annexure P/3 was also received by the P.A. in this same manner in which the applications Annexure -3 and Annexure - E were received by him for and on behalf of DC and DEO. When the DEO Mr. Pegu appeared in the witness box he admitted that the application Annexure P-3 was number dealt with by him number disposed of because it was number brought to his numberice by the A. Thus it is an undisputed fact that the application for recount, though filed at an appropriate time and setting out the ground for permitting a recount, did number received the attention of the returning officer and remained undisposed of. The reason may be a lack of companymunication between the DEO and his P.A. but that is an internal matter of the two. The fact remains that the earlier two applications, similarly received by the P.A., were promptly brought by him the numberice of the returning officer and received his attention. There is numberreason why the application Annexure P-3 should number have been similarly brought by the P.A. promptly to the numberice of the DEO and why it should number have received his attention and been disposed of. Rule 63 of the Conduct of Elections Rules. 1961 reads as under- Re-count of votes.- 1 After the companypletion of the companynting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. After such announcement has been made, a candidate or, in his absence, his election agent or any of his companynting agents may apply in writing to the returning officer to re-count the votes eihter wholly or in part stating the ground on which he demands such re-count. On such an application being made the returning officer shall decide the matter and may allow the application in whole in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Every decision of the returning officer under sub-rule 3 shall be in writing and companytain the reasons therefor. If the returning officer decides under sub-rule 3 to allow a re-count of the votes either wholly or in part, he shall- a do the recounting in accordance with rule 54A, rule 56 or rule 56A, as the case may be b amend the result sheet in Form 20 to the extent necessary after such re-count and c announce the amendments so made by him. After the total number of votes polled by each candidate has been announced under sub-rule 1 or sub-rule 5 , the returning officer shall companyplete and sign the result sheet in Form 20 and numberapplication for recount shall be entertained thereafter Provided that numberstep under this sub-rule shall be taken on the companypletion of the companynting until the candidates and election agents present at the companypletion thereof have been given a reasonable opportunity to exercise the right companyferred by sub-rule 2 . The rule clearly spells out a statutory obligation on the returning officer on an application being made under sub-rule 2 to decide the matter. He may allow the application in whole or in part depending on his satisfaction as to the availability of the grounds in support of the prayer for recount and the genuineness and reasonability thereof, which opinion shall, of companyrse, be formed prime facie depending on the facts and circumstances of the given case. Recording of evidence or holding of an enquiry on the application is number required or provided for by the rule. The application may be rejected to the extent to which it appears to him to be frivolous or unreasonable. The expressions shall decide the matter, may allow the application and if it appears to him employed in the language of subrule 3 cast an obligation on the returning officer to take a decision on the prayer for recount depending on the formation of prima facie opinion in a reasonable manner and as dictated by the facts and circumstances of a given case which would obviously defy definition or formation of any straightjacket formula. The application may be genuine and reasonable. It may be rejected to the extent to which it may be found frivolous or unreasonable. In any case, a decision has to be taken. The decision has to be in writing and has to companytain the reasons for the decision. There was a clear breach of Rule 63 in the present case. In addition, the learned senior companynsel for the appellant has invited our attention to the statement made in para 33 of the written statement replying to the averments made in para 32 of the election petition. The respondent states that in the application filed before the DEO the only objection raised was in respect of rejection of votes in polling station number. 103,46 and 30 only. It is alleged that in polling station number 103 approximately 435 ballot papers bearing votes cast in favour of the petitioner were rejected but from the result sheet Annexure - 1 it is clear that total number of rejected ballot papers were only 433. Similarly in polling station number46 it is alleged that 150 ballot papers were rejected but from the perusal of the result sheet Annexure - 1 the total number of rejected ballot papers in the polling station number46 were only 64. Particulars of this rejection of 150 ballot papers as alleged by the Election Petitioner were number specifically pleaded. The stand taken in the companynter affidavit supports the plea of the appellant, at least partially, that there was a good number of ballot papers rejected though number invalid. Vide para 33 of the election petition, the petitioner has specifically averred- That a recount and rescrutiny of the rejected ballot papers and the ballot papers companynted in favour of the Respondent No.l will show that the Petitioner had in fact polled 28,474 26,927903644 valid votes while the Respondent No.l had in fact polled number more than 27,133 27,777-644 votes out of which 200 more ballot papers polled in Polling Station No.30 should have been rejected. Hence, on the aforesaid statements of material facts, it is pre-eminently a fit case where your Lordships would be pleased to order recount and scrutiny of the rejected ballot papers and ballot papers companynted in favour of the Respondent No. 1 for upholding the sanctity and purity of election process and for establishing the supremacy of the real mandate of election. During the companyrse of hearing before the High Court, it was number disputed that 824 number of votes were rejected by reference to Rule 56 2 and excluded from companynting for the reason that they did number bear the signature of the presiding officer, number were they stamped with any distinguishing mark. It seems that at the time of companynting there was orally a companysensus arrived at that the votes having numberseal or signature shall be rejected as invalid straightway. The High Court formed an opinion that such rejection of 824 votes was justified. The submission of the learned senior companynsel for the appellant is that the votes companyld number have been excluded from the companynting and a serious error has been companymitted at the companynting by overlooking of the rules. Sub-rule 1 of rule 38 and relevant part of Rule 56 provide as under- Issue of ballot papers to electors.- 1 Every ballot papers before it is issued to an elector, and the companynterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the presiding officer. XXX XXX XXX XXX Counting of votes.- 1 The ballot papers taken out of each ballot box shall be arranged in companyvenient bundles and scrutinized. The returning officer shall reject a ballot paper-XXX XXX XXX XXX h if it does number bear both the mark and the signature which it should have borne under the provisions of sub-rule 1 of rule 38 Provided that where the returning officer is satisfied that any such defect as is mentioned in clause g or clause h has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall number be rejected merely on the ground of such defect Provided further that a ballot paper shall number be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote-shall be for a particular candidate clearly appears from the way the paper is marked. A bare reading of the rules shows that the obligation is cast on the polling officer to stamp with such distinguishing mark as the Election Commission may direct and to sign in full on the back of the ballot papers. The candidate has numberrole to play in the performance of such duty by the polling officer. Absence of mark and the signature renders the ballot paper liable to be rejected. However, still, where the returning officer feels satisfied that such defect has been caused by any mistake or failure on the part of the presiding officer or polling officer the ballot paper shall number be rejected merely on the ground of such defect. An analysis of this rule and the legal implication thereof may number detain us any longer inasmuch as we find these rules having been dealt with in Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., 1984 1 SCC 91, wherein this Court found that the absence of signature and distinguishing mark on 74 ballot papers was attributable to failure on the part of the presiding officer. Having found so. the Court held- It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voter. Every voter has the right to vote and in the democratic set up prevailing in the companyntry numberperson entitled to share the franchise can be denied the privilege. Nor can the candidate be made to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso once it is applicable, has also a mandate that the ballot paper is number to be rejected. We, therefore, hold that the ballot papers were number liable to be rejected as the proviso applied and the High Court, in our opinion, came to the companyrect companyclusion in companynting these ballot papers and giving credit thereof to the respondent numberl. It is pertinent to numbere that it is numberodys case that 824 ballot papers were spurious. The present one is number case of booth capturing or rigging. In an election dispute, they are number the candidates alone who are the persons interested. In a democratic set up, as is ours, in an election, the fate of the whole companystituency is at stake and every voter and every citizen has, therefore, an interest in that candidate being returned to assembly who has secured the majority of the valid votes. An election dispute cannot be decided on companycessions companytrary to law. A defect in the ballot papers in the light of Rule 38 1 read with Rule 56 2 h having been detected, the issue had to be decided by the satisfaction of the returning officer. The companycession given by candidates or their election agents submitting to a decision arrived at by the returning officer in accordance with law may companye in the way of that candidate turning around and disputing a doubtful position of law taken as resolved and companyceded or accepted. In an election dispute, a companysensus companytrary to law or a failure to discharge statutory obligation cast on an election officer which has resulted in prejudicing the result of the election, cannot ipso facto claim immunity from challenge. In the present case the returning officer has clearly failed in discharging his obligation cast by first proviso below clauses g and h of sub-rule 2 of Rule 56. Disagreeing with the High Court, therefore, we hold that these 824 ballot papers should have been included for the purpose of companynting. It is, therefore clear that so far as 824 votes are companycerned it is a ease of rejection of ballot papers companytrary to the provisions companytained in the rules and to the law declared by this Court in case of Arun Kumar Base supra . From the other material available on record a case for rejection of other ballot papers was also made out. The averments made in the companynter affidavit itself show that the number of rejected ballot papers was 497 out of which 433 ballot papers were in favour of the election petitioner. These facts companypled with the fact of breach of statutory duty cast on the returning officer by Rule 63 did make out a case for ordering a recount of ballot papers by the High Court. The High Court in its judgment has referred to the decisions of this Court in Bhabhi v. Sheo Govind, 1976 1 SCC 687, Satyanarain Dudhani v. Uday Kumar Singh, 1993 Supp. 2 SCC 82 and M.R. Gopalakrishnan v. Thachady Prabhkaran and Ors., 1995 Supp. 2 SCC 101 to read the law that the secrecy of ballot papers cannot be permitted to be tinkered with lightly that an order for recount is number to be granted as a matter of companyrse and that the secrecy of ballot papers has to be maintained. In other words a recount has to be ordered only when on the basis of material facts pleaded in the petition and supported by the companytemporaneous evidence a case for recount is made out. A similar view has been taken in a host of other decisions. It is number necessary to burden this judgment by cataloguing all the decisions relevant to the point. Suffice it to refer to a recent decision of this Court in T.A. Ahammmed Kabeer v. A.A. Azeez and Ors., JT 2003 4 SC 110. This Court numbered the observation made earlier in Bhag Mal Ch. Prabhu Ram and Ors., 1985 1 SCC 61 that the Constitution and companynected laws aim at ensuring true democracy functioning in the companyntry and the will of the people to prevail. That can be achieved by allowing the one to represent the companystituency who has obtained the majority of valid votes by proper and due process of law. It would really be a mockery of the procedure of law in a situation where it is demonstrated duly in the Court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the others and allowed to represent the companystituency. This Court further held in T.A. Ahammmed Kabeer supra -the last before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should number be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election companyrts are inclined to lean in favour of the returned candidate and place the onus of proof on the person challenging the result of the election, insisting on strict companypliance with the rules of pleadings and excluding such evidence from companysideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should number be unduly stretched for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the companystituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any companynizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of Justice. It was also held, it is true that a recount is number be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or number to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes to the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. So also once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100 l d iii , as also as to the result of the election of any other candidate by reference by to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, companysistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out the true result of the recount though the actual finding as to the validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or number to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to. The law so laid down clinches the issue. On the averments made in the pleadings and on the material made available before the Court in the present case a clear case for directing a recount was made out. Certainly the election petitioner was number indulging into a roving inquiry or trying to fish out material. The High Court has also number held so. Therefore, the High Court did acquire a jurisdiction to permit a recount. Once a recount was ordered the decision of the case would depend on the result of the recount which shall have to be given effect to. Shri. Sanyal, the learned senior companynsel for the respondent numberl, submitted that if this Court feels companyvinced of Rule 63 having been violated and a case of strong likelihood of the result of the election having been materially affected made out, in that case, the Court may remand the case to the High Court with a direction to the returning officer to record his satisfaction by reference to Rules 38 read with 56 and Rule 63 and then his satisfaction being subjected to judicial scrutiny by the High Court where after only recount may be carried out. We do number find any authority or reasoning to support such a proposition. The result of the election has been declared. The election petition has already been subjected to trial. Now, it is for the Court to form its own judicial opinion on the issues raised and act in companyformity with the finding arrived at. For the foregoing reasons we are of the opinion that the High Court was number justified in rejection the prayer for permitting a recount.

WITH CIVIL APPEAL NOS.6160, 6161, 6162, 6242, 6243/83 J U D G M E N T PATTANAIK, J. These six appeals raise a companymon question and are directed against the judgment of the Madhya Pradesh High Court, the said companymon question of law being whether the Cantonment Board is entitled to levy entry tax on Motor Vehicles? The High Court of Madhya Pradesh by the impugned judgments has companye to the companyclusion that in view of the bar of imposition of tax by any local authority companytained in Section 6 1 of the Madhya pradesh Motor Vehicles Taxation Act, 1947 hereinafter referred to as the Municipality companyld number have imposed the entry tax on Motor Vehicles companyferred under Section 127 of the Madhya Pradesh Municipalities Act, 1961 hereinafter referred to as the Municipalities Act and companysequently the Cantonment Board in exercise of its power under Section 60 1 of the Cantonment Act cannot impose the entry tax on motor vehicles , the said power be companyextensive with the power of a Municipality under Section 127 of the Municipalities Act. The broad facts leading to the impugned judgments of Madhya Pradesh High Court may be briefly stated as under- To companysolidate and amend the law relating to the administration of cantonments the cantonments Act 1924 Act 2 of 1924 was enacted in place of the earlier Cantonment Act Act 15 of 1910 and the Cantonment Code of 1912 to bring the law relating to the Administration of Cantonments in companyformity with the ordinary Municipal Law. Cantonments is defined in Section 3 of the said Act to mean any place or places in which any part of the Forces is quartered to be declared and numberified in the official Gazette by the Central Government. Under Section 10 of the said Act for every Cantonment there shall be a Cantonment Board and the said Board is a body companyporate having perpetual succession and a companymon seal with power to acquire and hold property both moveable and immovable as provided under Section 60 of the Act is a General Power of taxation which may be extracted herein Below- General Power of taxation 1 The Board may, with the previous sanction of the Central Government, impose in any cantonment any tax which under any enactment for the time being in force, may be imposed in any municipality in state wherein such cantonment is situated. Any tax imposed under this section shall take effect from the date of its numberification official Gazette or where any later date specified in this behalf in the numberification, from such later date. The Madhya Pradesh Motor Vehicles Taxation Act, 1947 P. Act No. VI. of 19470 provide for the levy of a tax on Motor Vehicles in Madhya Pradesh. Section 3 1 the said Act entitled the Taxation Authority to levy tax on motor vehicles used or kept for use at the rate specified in the First Schedule read with sub-section 2 of section 3 of the said Act. While the Taxation Act was in force the Madhya Pradesh legislatures enacted the law relating to Municipalities and to make better provision for organisation and administration of Municipalities in Madhya Pradesh Called the Madhya Pradesh Municipalities Act, 1961 M.P. Act No. 37 of 1961 . The aforesaid municipalities Act repealed the earlier law relating to Municipalities in different parts of Madhya Pradesh, namely, the central Provinces and Berar Municipalities Act, 1922, the Madhya Bharat Municipalities Act, 1954, the Vindhya Pradesh Municipalities Act, 1946, and the Bhopal State Municipalities Act, 1955. Section 127 1 iii of the said municipalities Act which has direct bearing in deciding the companytroversy that has arisen in these appeals may be extracted hereinafter in extenso for better appreciation of the point in issue. Taxes which may be imposed- 1 A companyncil may, from time to time, and subject to the provisions of this Chapter, and any general or special order which the state Government may make in this behalf, impose in the whole or in any part of the Municipality any of the following taxes, for the purposes of the Act, namelya tax on vehicles, boats and animals used as aforesaid entering the limits of the Municipality but number liable to taxation under clause ii . The Cantonment Board Saugor by Notification No. 344 dated November 24, 1973 in exercise of power under section 60 of the Cantonment act made provision for imposition of Vehicles Entry Tax at the rates specified in the said Notification. Similarly the Cantonment Board, Mhow by Notification dated 19.12.1979 imposed similar entry tax on Motor Vehicles. The Cantonment Board, Jabalpur by numberification dated 6th May, 1978 also imposed the entry tax on motor Vehicles in exercise of power under section 60 of the cantonment Act. All these Notifications issued by different Cantonment Boards were challenged before the Madhya Pradesh High Court by filling writ petitions were allowed by the impugned judgments of the High Court and it was held that the Cantonment Board has numberpower to levy entry tax on motor vehicles so long as the prohibitions companytained in section 6 of the Taxation Act companytinues and accordingly numberifications issued by the Cantonment Board were quashed and thus the present appeals. Mr. Lekhi, learned senior companynsel appearing for the different cantonment Boards as well as Mr. Subba Rao, learned companynsel appearing for some of the cantonment Boards challenged the companyrectness of the judgment of the Madhya Pradesh High Court inter alia on the ground that the Municipalities Act being a later Act than the Taxation Act, the provisions of the later Act would prevail if there is any repugnancy between these two. In this view of the matter the imposition of entry tax having been provided for section 127 iii of the Municipalities Act, the same companyld be lawfully levied by the Cantonment Board under Section 60 of the Cantonment Act. It was further companytended that though the Municipalities Act did number expressly repeal the provisions of the Taxation Act but the same being a later Act the principles of implied repeal should be applied and therefore, any embargo companytained in the Taxation Act for levy of entry tax because of section 6 of the Taxation Act will have numberapplication. It was also urged that the proviso to section 7 of the Taxation Act would indicate that the embargo companytained in Section 6 of the said Act would apply only if the Cantonment Board agrees number to recover any tax and in the absence of any companysent of the Cantonment Board the embargo companytained in imposition of tax under Section 6 of the Taxation Act will number apply. Mr. Lekhi, learned senior companynsel also urged that the Taxation Act having number provided for any levy on the entry of Motor Vehicles as is provided under Section 127 1 ii of the Municipalities Act there is infact numberrepugnancy between tow provisions and, therefore, so far as the levy of entry tax on motor vehicles is companycerned, it must be held that the prohibitions companytained in Section 6 of the Taxation Act will number get attracted. Lastly Mr. Lekhi argued that doctrine of desuetude should apply in the present case in as much as the provisions of section 7 of the Taxation Act though enacted since 1947 has number been in use so far and numbergrant has ever been given to the appellants cantonment Boards or for that matter to any other local authorities. Mr. Agrawal, learned senior companynsel appearing for the respondents and Mr. S.K. Mehta, learned companynsel appearing for some of the respondents on the other hand companytended that the statutory interpretation companytained in the latin maxim leges posteriores priores companyterarias abrogant is subject to the exception embodied in the maxim generalia specialibus number derogant. in other words the theory that the later laws abrogate earlier companytrary laws is subject to the exception that the general law does number derogate from a special one and applying the said principle the Motor Vehicles Taxation Act being a special Act dealing with levy of tax on Motor Vehicles the later law, namely, the Municipalities Act cannot be said to have repealed the earlier provisions of the Taxation Act and on the other hand it must be presumed that the situation was intended to companytinue to be dealt with by the specific provision companytained in the Taxation Act rather than the later general provisions companytained in the Municipalities Act and , therefore the High Court was fully justified in companying to the companyclusion that the Cantonment board companyld number have issued the Notification levying tax on entry on Motor Vehicles. The learned companynsel also urged that the duty of the companyrt being to put a companystruction by which both the provisions companyld be sustained, the expression vehicle in the Municipalities Act should be interpreted to mean all vehicles other than Motor Vehicles for which a special provision has been made in the Taxation Act and so companystrued the Cantonment Board would number have any jurisdiction to levy entry tax on Motor Vehicles. The relevant Sections of the Madhya Pradesh Motor Vehicles Taxation Act may quoted hereunder Levy of Tax- 2 The tax leviable under subsection 1 shall be paid by the owner of the motor vehicle used or kept of usefor a whole quarter at onefourth of the annual rate specified in the First Schedule , and for two or more whole quarters, pro rata or for any period expiring on the last day of quarter and number exceeding two months at one-sixth or one-twelfth of the rate specified in the First Schedule, according as the period exceeds, or does number exceed one month. Bar of imposition of tax by any local authority.- 1 Notwithstanding anything companytained in any other enactment for the time being in force, numberlocal authority shall, after the companymencement of this Act, impose for enhance a tax, toll or licence fee in respect of a motor vehicle and if any local authority has imposed sch tax. toll or licence fee since before the 1st day of April, 1942 and the same is still in force all the companymencement of this Act any person who is liable to pay such tax, toll or licence fee to such authority shall be deemed to have paid it. Nothing companytained in subsection 10 shall affect the imposition, enhancement or recovery of an octroi tax levied hereafter by any local authority or a terminal tax levied and in force on the 1st January , 1937 within the local area under the jurisdiction of any local authority . Grant to local authorities- 1 The state Government shall at the close of the financial year 1947-48 and of each financial year thereafter make to every Cantonment Board, Municipal Committee and numberified area companymittee which was imposing a tax, toll or licence fee in respect of motor vehicles, before the 1st day of April, 1942, a grant of the same as was being paid by the state Government to such board or companymittee immediately before the companymencement of this Act Provided that numbersum shall be payable to cantonment Board unless it agrees number to recover any tax, toll or licence fee in respect of motor vehicles. Any sum payable under subsection 1 shall be charged on the Consolidated Fund of the State. The rival submission require careful examination of different provisions of both the Acts and certain principles of interpretation of a statute. The admitted position that emerges from the facts already narrated are that the cantonment Act, 1924 is the earliest in point of time which empowered the Cantonment Board to impose tax with the previous sanction of the Central Government which tax companyld be imposed in any Municipality in the State where such Cantonment is situated. The Madhya Pradesh Motor Vehicles Taxation Act, 1947 is a special provision dealing with levy of tax on motor Vehicle which is used or kept for use. There is numberprovision in the aforesaid Taxation Act for levy of any tax on entry of Motor Vehicles alone. The Municipality Act of 1961, however , authorises imposition of tax on vehicles, boats and animals entering the limits of the Municipality as provided in Section 127 91 iii of the said Act. In the aforesaid premises it is required to be companysidered and decided as to whether the Cantonment Board companyld impose tax on vehicles entering the limits of the Cantonments which companyld have otherwise been levied by the Municipality in exercise of power under Section 127 1 iii of the Municipalities Act. It may be further numbericed that the Motor vehicles Taxation Act as well as the Municipalities Act are both enacted by the State Legislature. The first question that arises for companysideration is whether there is any repugnancy between the provisions of the Motor Vehicles Taxation Act and the Municipalities Act in relation to imposition of tax on Motor Vehicles entering the limits of the Municipality. As has been stated earlier under the Taxation Act, Tax companyld be imposed on the Motor Vehicles which is used or Kept for use as provided in Section 3 2 of the said Act and there is numberprovision for imposition of tax on vehicles which is neither used number kept for use but for mere entry into any municipal limits . When the legislatures imposed a ban on levy of tax by any local authority under section 6 of the Taxation Act what is prohibited is levy of tax which is leviable under section 3 2 of the Taxation Act. When the same legislature enacted the Municipalities to impose tax on vehicles entering the limits of the Municipality under Section 127 1 iii they must be presumed to be aware of the provisions of the Taxation Act and leviability of the tax thereunder in respect of Motor Vehicles used or kept for use. The expression vehicle having been defined in Section 2 38 to include a bicycle, a tricycle, motor car and ever wheel companyveyance which is used or capable of being used on a public street, it is number possible for us to accept the companytention of Mr. Agrawal, learned companynsel appearing for the respondents to interpret the same expression to mean vehicles other than the motor vehicles. Since the Taxation Act does number provide for any imposition of tax on entry of the Motor vehicles within Municipal limits whereas the municipal Act authorises fr such levy under Section 127 1 iii we do number find any inconsistency or repugnancy between the two provisions. In other words while under the Motor Vehicle Taxation Act a tax companyld be imposed on Motor Vehicles used or kept for use by the registering authority including the Municipalities under section 127 1 iii of the Municipalities Act. But so far as the imposition of tax motor Vehicle entering into the Municipal limits is companycerned, which is provided under section 127 1 iii , of the Municipalities Act the said provisions cannot be said to be repugnant to the special statute in respect of Motor Vehicles, namely the Motor Vehicles Taxation Act. It has been stated by this companyrt in the case of Ashoka Marketing limited And another etc. etc. vs, Punjab National Bank and others etc. etc. 1990 4 SCC 406 that the principal of statutory interpretation, namely, later laws abrogate earlier companytrary laws is subject to exception that a general provision does number derogate from a special one. This would mean that where a literal meaning of the general enactment companyers a situation for which specific provision is made by another enactment companytained in the earlier Act, it is presumed that the situation was intended to be companytinued to be dealt with by the specific provision rather than the later general one. in other words if the Taxation Act would have companytained a provision authorising imposition of Entry Tax on Motor Vehicle than certainly the later general Act, namely the municipalities Act even if by making a provision of imposition of entry tax on Vehicles entering in to the Municipal limits would number have operated. But since the special law, namely, the Taxation Act does number have any provision authorising imposition of tax on entry of Motor Vehicles. The said provision would remain valid and would be applicable and there would be numberbar for the municipality to impose entry tax on all vehicles including Motor Vehicles including Motor Vehicles for entering in to the limits of the Municipalities. This Construction being the only harmonious companystruction by which both the provisions remain operative it is the duty of the companyrt adopt such companystruction. There is numberdispute with the proposition advanced by Mr. Lekhi, learned senior companynsel with regard to theory of implied repeal. This theory the learned the senior companynsel advanced since the Municipalities Act did number repeal the provisions of the Motor Vehicles Taxation Act. It was held by this Court in the Case of Yogender Pal Singh others vs. Union of India Ors. 1987 1 SCC 631 It is well settled that when a companypetent Authority makes a new law which is totally inconsistent with the earlier law and the two cannot stand together any longer it must be companystrued that the earlier law has been repealed by necessary implication by the later law. In companysidering the applicability of section 6 of the General Clause Act 1897 in the case of State Of Orissa Vs. A Tuloch and Co. 1964 4 SCR 461 this companyrt had observed- The entire theory underlying implied repeals is that there is numberneed for the later enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment provisions as to effect such supersession, then there is law a repeal numberwithstanding the absence of the words repeal in the later statute. The aforesaid observation numberdoubt has been made while analysing the effect of Section 6 of the General Clauses Act and the companytinuance of rights accrued and liabilities incurred under the superseded enactment and thus has numberdirect application to the case in hand. In the case Commissioner of Income Tax, Bombay City I vs. Godavari sugar Mills Ltd. 1967 1 SCR 798 on which Mr. Lekhi learned senior companynsel placed strong reliance, the question for companysideration was whether the ordnance be repugnant to section 23A of the Income Tax Act, 1922 it can be said that there is an implied repeal of section 23A of the Act. In this companynection it was held by this companyrtthere is a manifest repugnancy between the provisions of the Ordinance and of section 23A if the Act and it must be taken that there is a implied repeal of Section 23 of the Act to the Extent of that repugnancy created by Section 3 of the Ordinance and so long as the ordinance remain in force. But in view of our companyclusion that there is numberrepugnancy between Section 3 read with Section 6 of the Motor Vehicles Taxation Act and the provisions of Section 127 1 iii of the Municipalities Act and both the provisions operate in two different fields the principle of implied repeal will have numberapplication. In the companynection it would be appropriate for us to numberice one decision of this companyrt in the Case of The Western India Theatres Ltd. vs. The Cantonment Board, Poona, Cantonment 1959 Supp. 2 SCR 63, where the validity of levy of entertainment tax under Entry 50 in Schedule VII of the Government of India Act. 1935 was under companysideration. The Entry in question was to the effecttaxes on luxury or entertainment or amusement It was companytended before the Court that the tax in question was really a tax imposed for the privilege of carrying on any trade or calling under Entry 46 and, therefore, the same cannot exceed Rs.100 per annum as provided under Section 142A of the Government of India Act 1935 and Rs.250 per annum under Article 276 2 of the Constitution. The Court repelling the argument held- The entry companytemplates luxuries, entertainment, and amusements as objects on which the tax is to be imposed. If the words are to be so regarded, as we think they must, there can be numberreason to differentiate between the given and the receiver of the luxuries, entertainments or amusements and both may, with equal propriety, be made amenable to the tax. It is true that economists regards an entertainment, it does become a tax on expenditure, entertainments or amusements . The entry, as we have said, companytemplates a law with respect to these matters regarded as objects and a law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or receiver of that entertainment. Nor is the impugned tax a tax imposed for the privilege of carrying on any trade or calling. Thus companysidered, the tax leviable on Motor Vehicles when used or kept for use under section 3 2 of the Madhya Pradesh Motor vehicles Taxation Act is different from the tax leviable on Motor Vehicles. Entering the limits of the Municipality under Section 127 1 iii of the Madhya Pradesh Municipalities Act, 1961 and there is numberrepugnancy between the two and both the provisions can therefore operate in its own field. Since under Section 127 1 iii of the Madhya Pradesh Municipality Act, Municipality companyld levy a tax on Motor Vehicles entering the limits of the Municipality, the same companyld be levied by the Cantonment Board in exercise of its power under Section 60 of the Cantonments Act with the previous sanction of the Central Government . Consequently, numberifications issued by the Cantonment Boards of Mhow, Jabalpur and Saugar were valid numberifications issued under section 60 of the cantonments Act and imposition of tax on motor Vehicles entering into the limits of the Cantonment Boards cannot be said to be invalid or inoperative. The High companyrt in our opinion companymitted error in striking down those numberifications on the ground of repugnancy with this special legislation, namely, the Madhya Pradesh Motor Vehicles Taxation Act. So far as the companytention of Mr. Lekhi, the learned senior companynsel with regard to the proviso to Section 7 of the Taxation Act is companycerned, we however, do number find any force in the same in asmuchas Section 7 deals with the grant to the local authorities and it provides that if a grant was being paid by the state Government to any such Board or Committee immediately before the companymencement of the Taxation Act then the said grant shall be companytinued to be paid. But the Cantonment Board by virtue of the Proviso will number be entitled to receive the said grant unless it agrees number to recover any tax, toll or licence in respect of the Motor Vehicles. In other words, Section 7 and proviso thereto deals with right of the Cantonment Board and the Municipality to receive a grant which was being paid by the state Government prior to the companymencement of the Taxation Act and the said provision has numberconnection with the imposition of tax on Motor Vehicle Which is governed by section 3 2 and the bar on such imposition which is companytained in Section 6 of the Taxation Act. In this view of the matter , we are unable to accept the companytention of Mr. Lekhi, the learned senior companynsel that companyjoint reading of section 6 and 7 and its proviso would lead to the companyclusion that even under the Taxation Act a Cantonment Board was entitled to impose tax on Motor Vehicles used or kept for use numberwithstanding the bar under Section 6. Coming to the companyclusion of the applicability of doctrine of desuetude Mr. Lekhi, the learned senior companynsel strongly relied upon the decision of this Court in Municipal Corporation for City of Pune and another vs. Bharat forge Company Ltd. and other 1995 3 SCC 434 and submitted that the provisions of the Motor Vehicles Taxation Act must be held to be of disuse as numbergrant as provided in Section 7 of the Taxation Act has ever been made at any point of time after the enactment of the said Act in 1947. This companytention is wholly unsustainable in law in asmuchas we are number companycerned with the question of grant to local authorities and Cantonment Board as provided under Section 7 of the Taxation Act but we are companycerned with the leviability of tax on Motor Vehicles under Section 3 2 of the Taxation Act. it is numberodys case that numbertax was being levied on Motor Vehicles which is used or kept for use under Section 3 2 of the Madhya Pradesh Motor Vehicle Taxation Act ,1947.

Sathasivam, J. This appeal by Union of India arises out of the final judgment and order dated 24.04.2006 passed by the High Court of Judicature at Bombay in Appeal No. 219 of 2006 in Arbitration Petition No. 274 of 2005 whereby the Division Bench of the High Court dismissed their appeal. Brief facts On 16.05.1988, the respondent was awarded with a companytract for the work of Provision of Signaling Arrangements at C Class Stations on Igatpuri-Bhusawal Section and 2 C Stations on Bhusawal-Badnera Section of Bhusawal Division of Central Railway at the companyt of Rs.18,10,400/-. On companypletion of the companytract, the respondent raised certain disputes claims by filing Suit No. 2822 of 1993 before the High Court and demanded for adjudication through arbitration. The High Court directed the General Manager of the Central Railway to appoint an arbitrator and refer the disputes for adjudication. Since the Arbitrator appointed companyld number deliberate the matter within the time limit, the respondent invoked the jurisdiction of the Umpire. The Umpire, by order dated 26.04.2005, gave award for Claim Nos. 1, 3, 6, 8, 9, 10, 11, 12 13 and rejected Claim Nos. 2, 5, 7 14 and mentioned that a bank guarantee towards security deposit against claim No. 4 is to be returned. Challenging the award given by the Umpire for Claim Nos. 11 13, the appellant herein filed Arbitration Petition No. 274 of 2005 before the High Court. The learned Single Judge of the High Court, vide order dated 06.12.2005 dismissed their petition. Aggrieved by the order passed by the learned single Judge, the appellant herein filed an appeal being Arbitration Appeal No. 219 of 2006 before the Division Bench of the High Court. The Division Bench, by impugned order dated 24.04.2006, dismissed the appeal. Challenging the said order, the Union of India preferred this appeal by way of special leave before this Court. Heard Mr. A. S. Chandhiok, learned Additional Solicitor General for the Union of India and Mr. Ramesh Babu M.R., learned companynsel for the respondent. Before the High Court as well as before us, the appellant projected their case only with regard to interest that was granted by the arbitrator and companyfirmed by the High Court. Therefore, the only point for companysideration in this appeal is whether an arbitrator has jurisdiction to grant interest despite the agreement prohibiting the same? Though the appellant has challenged the award of the Umpire in respect of Claim Nos. 11 and 13, they are mainly companycerned about grant of interest hence there is numberneed to traverse all the factual details except the required one which we have adverted to. According to Mr. S. Chandhiok, learned ASG, in view of clause 1.15 of the General Conditions of the Contract between the parties, the arbitrator does number have the power to award interest pendente lite. The said clause reads as under 1.15 Interest on Amounts - No interest will be payable upon the Earnest Money or the Security Deposit or amounts payable to the Contractor under the Contract but Government Securities deposited in terms of clause 1.14.4 will be repayable with interest accrued thereon. According to the learned ASG, in view of the abovementioned clause, numberinterest is payable on the amount payable to the Contractor under the companytract. On the other hand, Mr. Ramesh Babu M.R., learned companynsel appearing for the respondent submitted that irrespective of the bar in the companytract arbitrator has power to award interest for which he strongly relied on the decision of this Court in Board of Trustees for the Port of Calcutta vs. Engineers-De-Space-Age, 1996 1 SCC 516 and Madnani Construction Corporation Private Limited vs. Union of India and Others, 2010 1 SCC 549. We have already extracted the relevant clause wherein the words amounts payable to the Contractor under the companytract are of paramount importance. If there is numberprohibition in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amount due under the companytract, the arbitrator is free to companysider and award interest in respect of the period. If there is a prohibition in the agreement to pay the interest, in that event, the arbitrator cannot grant the interest. Clause 1.15 prohibits payment of interest on the amount payable to the companytractor under the companytract. It is number in dispute that the provisions of the Arbitration Act, 1940 alone are applicable to the case on hand. Now, let us companysider various decisions of this Court dealing with similar prohibition in the agreement for grant of interest. In Secretary, Irrigation Department, Government of Orissa and Others vs. G.C. Roy, 1992 1 SCC 508, the Constitution Bench had companysidered Section 29 of the Arbitration Act, 1940 which deals with interest pendente lite. After analyzing the scheme of the Act and various earlier decisions, the Constitution Bench companysidered the very same issue, namely, whether an arbitrator has power to award interest pendente lite and, if so, on what principle. The relevant paragraphs are extracted hereunder- The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does number provide for grant of such interest number does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest. On a companyspectus of aforementioned decisions, the following principles emerge A person deprived of the use of money to which he is legitimately entitled has a right to be companypensated for the deprivation, call it by any name. It may be called interest, companypensation or damages. This basic companysideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, Civil Procedure Code and there is numberreason or principle to hold otherwise in the case of arbitrator. An arbitrator is an alternative form sic forum for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. If the arbitrator has numberpower to award interest pendente lite, the party claiming it would have to approach the companyrt for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings. An arbitrator is the creature of an agreement. It is open to the parties to companyfer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are number opposed to law. The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point . All the same, the agreement must be in companyformity with law. The arbitrator must also act and make his award in accordance with the general law of the land and the agreement. Over the years, the English and Indian companyrts have acted on the assumption that where the agreement does number prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas has number been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was numberclaim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were number intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case almost all the companyrts in the companyntry had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law. Interest pendente lite is number a matter of substantive law, like interest for the period anterior to reference prereference period . For doing companyplete justice between the parties, such power has always been inferred. Having regard to the above companysideration, we think that the following is the companyrect principle which should be followed in this behalf Where the agreement between the parties does number prohibit grant of interest and where a party claims interest and that dispute along with the claim for principal amount or independently is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes -- or refer the dispute as to interest as such -- to the arbitrator, he shall have the power to award interest. This does number mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view. In Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others vs. N.C Budharaj deceased by LRs and Others, 2001 2 SCC 721, another Constitution Bench companysidered payment of interest for pre-reference period in respect of cases arising when Interest Act, 1839 was in force. The following companyclusion in para 26 is relevant which reads thus For all the reasons stated above, we answer the reference by holding that the arbitrator appointed with or without the intervention of the companyrt, has jurisdiction to award interest, on the sums found due and payable, for the pre-reference period, in the absence of any specific stipulation or prohibition in the companytract to claim or grant any such interest. The decision in Jena case taking a companytra view does number lay down the companyrect position and stands overruled, prospectively, which means that this decision shall number entitle any party number shall it empower any companyrt to reopen proceedings which have already become final, and apply only to any pending proceedings. No companyts. Emphasis supplied . In the earlier paras, we have referred to the stand taken by the learned companynsel for the respondent and reliance based on the decision reported in Board of Trustees for the Port of Calcutta supra . It is true that in that decision, this Court has held that arbitrator has jurisdiction to interpret the clauses of the companytract and to decide whether interest pendente lite companyld be awarded by him. The short question that arose in that case was that the arbitrator had awarded interest pendente lite numberwithstanding the prohibition companytained in the companytract against the payment of interest on delayed payments. Ultimately, the two-Judge Bench of this Court has companycluded that irrespective of the terms of the companytract, the arbitrator was well within his jurisdiction in awarding interest pendente lite. It is useful to point out that the ratio in that decision was companysidered by this Court in Sayeed Ahmed and Company vs. State of Uttar Pradesh and Others, 2009 12 SCC 26. While companysidering the very same issue, particularly, specific clause in the agreement prohibiting interest pendente lite, this Court companysidered the very same decision i.e. Board of Trustees for the Port of Calcutta supra . After adverting to the clause in the Board of Trustees for the Port of Calcutta supra and the Constitution Bench in C. Roys case supra , this Court companycluded as under The observation in Engineers-De-Space-Age that the term of the companytract merely prohibits the department employer from paying interest to the companytractor for delayed payment but once the matter goes to the arbitrator, the discretion of the arbitrator is number in any manner stifled by the terms of the companytract and the arbitrator will be entitled to companysider and grant the interest pendente lite, cannot be used to support an outlandish argument that bar on the Government or department paying interest is number a bar on the arbitrator awarding interest. Whether the provision in the companytract bars the employer from entertaining any claim for interest or bars the companytractor from making any claim for interest, it amounts to a clear prohibition regarding interest. The provision need number companytain another bar prohibiting the arbitrator from awarding interest. The observations made in the companytext of interest pendente lite cannot be used out of companytract. The learned companynsel for the appellant next companytended on the basis of the above observations in Engineers-De-Space- Age, that even if Clause G1.09 is held to bar interest in the pre-reference period, it should be held number to apply to the pendente lite period, that is, from 14-3-1997 to 31-7-2001. He companytended that the award of interest during the pendency of the reference was within the discretion of the arbitrator and therefore, the award of interest for that period companyld number have been interfered with by the High Court. In view of the Constitution Bench decisions in G.C. Roy and N.C. Budharaj rendered before and after the decision in Engineers-De- Space-Age, it is doubtful whether the observation in Engineers-De-Space-Age in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite, ignoring the express bar in the companytract, is good law. But that need number be companysidered further as this is a case under the new Act where there is a specific provision regarding award of interest by the arbitrator. Considering the specific prohibition in the agreement as discussed and interpreted by the Constitution Bench, we are in respectful agreement with the view expressed in Sayeed Ahmed and Company supra and we cannot possibly agree with the observation in Board of Trustees for the Port of Calcutta supra in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite ignoring the express bar in the companytract. In Union of India vs. Saraswat Trading Agency and Others, 2009 16 SCC 504, though it was under the Arbitration and Conciliation Act, 1996, this Court has companysidered elaborately about the legal position in regard to interest after adverting to all the earlier decisions and basing reliance on clause 31 of the agreement held In the case in hand Clause 31 of the agreement is materially different. It bars payment of any interest or damage to the companytractor for any reason whatsoever. We are, therefore, clearly of the view that numberpre-reference or pendente lite interest was payable to the respondent on the amount under Item 3 and the arbitrators award allowing pre-reference and pendente lite interest on that amount was plainly in breach of the express terms of the agreement. The order of the High Court insofar as pre-reference and pendente lite interest on the amount under Item 3 is companycerned is, therefore, unsustainable. At the end of the argument, learned companynsel for the respondent heavily relied on the recent decision of this Court in Madnani Construction Corporation Private Limited supra which arose under the Arbitration Act, 1940. There also, Clause 30 of SCC and Clause 52 of GCC prohibits payment of interest. Though the Bench relied on all the earlier decisions and companysidered the very same clause as to which we are number discussing, upheld the order awarding interest by the arbitrator de hors to specific bar in the agreement. It is relevant to point out that the decision of Madnani Construction Corporation Private Limited supra was cited before another Bench of this Court in Sree Kamatchi Amman Constructions vs. Divisional Railway Manager Works , Palghat and Others, 2010 8 SCC 767, wherein the decision in Madnani Construction Corporation Private Limited supra was very much discussed and companysidered. After adverting to all the earlier decisions including the Constitution Bench judgments, this Court has analyzed the effect of Madnani Construction Corporation Private Limited supra . The following discussion and ultimate companyclusion are relevant In Madnani the arbitrator had awarded interest pendente lite, that is, from the date of appointment of arbitrator to the date of award. The High Court had interfered with the same on the ground that there was a specific prohibition in the companytract regarding awarding of interest. This Court following the decision in Engineers-De- Space-Age reversed the said rejection and held as follows Madnani case, SCC pp. 560-61, para 39 In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16 2 of GCC and Clause 30 of SCC do number companytain any prohibition on the arbitrator to grant interest. Therefore, the High Court was number right in interfering with the arbitrators award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict companystruction of those clauses and relying on the ratio in Engineers find that the said clauses do number impose any bar on the arbitrator in granting interest. At the outset it should be numbericed that Engineers-De- Space-Age and Madnani arose under the old Arbitration Act, 1940 which did number companytain a provision similar to Section 31 7 of the new Act. This Court, in Sayeed Ahmed held that the decisions rendered under the old Act may number be of assistance to decide the validity of grant of interest under the new Act. The logic in Engineers-De-Space-Age was that while the companytract governed the interest from the date of cause of action to date of reference, the arbitrator had the discretion to decide the rate of interest from the date of reference to date of award and he was number bound by any prohibition regarding interest companytained in the companytract, insofar as pendente lite period is companycerned. This Court in Sayeed Ahmed held that the decision in Engineers-De-Space- Age would number apply to cases arising under the new Act. We extract below, the relevant portion from Sayeed Ahmed SCC p. 36, paras 23-24 The observation in Engineers-De-Space-Age that the term of the companytract merely prohibits the department employer from paying interest to the companytractor for delayed payment but once the matter goes to the arbitrator, the discretion of the arbitrator is number in any manner stifled by the terms of the companytract and the arbitrator will be entitled to companysider and grant the interest pendente lite, cannot be used to support an outlandish argument that bar on the Government or department paying interest is number a bar on the arbitrator awarding interest. Whether the provision in the companytract bars the employer from entertaining any claim for interest or bars the companytractor from making any claim for interest, it amounts to a clear prohibition regarding interest. The provision need number companytain another bar prohibiting the arbitrator from awarding interest. The observations made in the companytext of interest pendente lite cannot be used out of companytract. The learned companynsel for the appellant next companytended on the basis of the above observations in Engineers-De-Space-Age, that even if Clause G 1.09 is held to bar interest in the pre-reference period, it should be held number to apply to the pendente lite period, that is, from 14-3-1997 to 31-7-2001. He companytended that the award of interest during the pendency of the reference was within the discretion of the arbitrator and therefore, the award of interest for that period companyld number have been interfered with by the High Court. In view of the Constitution Bench decisions in G.C. Roy and N.C. Budharaj rendered before and after the decision in Engineers-De-Space-Age, it is doubtful whether the observation in Engineers-De-Space-Age in a case arising under the Arbitration Act, 1940 that the arbitrator companyld award interest pendente lite, ignoring the express bar in the companytract, is good law. But that need number be companysidered further as this is a case under the new Act where there is a specific provision regarding award of interest by the arbitrator. The same reasoning applies to the decision in Madnani also as that also relates to a case under the old Act and did number independently companysider the issue but merely relied upon the decision in Engineers-De-Space-Age. Section 37 1 of the new Act by using the words unless otherwise agreed by the parties categorically clarifies that the arbitrator is bound by the terms of the companytract insofar as the award of interest from the date of cause of action to the date of award. Therefore, where the parties had agreed that numberinterest shall be payable, the Arbitral Tribunal cannot award interest between the date when the cause of action arose to the date of award. We are of the view that the decisions in Engineers-De- Space-Age and Madnani are inapplicable for yet another reason. In Engineers-De-Space-Age and Madnani the arbitrator had awarded interest for the pendente lite period. This Court upheld the award of such interest under the old Act on the ground that the arbitrator had the discretion to decide whether interest should be awarded or number during the pendente lite period and he was number bound by the companytractual terms insofar as the interest for the pendente lite period. But in the instant case the Arbitral Tribunal has refused to award interest for the pendente lite period. Where the Arbitral Tribunal has exercised its discretion and refused award of interest for the period pendente lite, even if the principles in those two cases were applicable, the award of the arbitrator companyld number be interfered with. On this ground also the decisions in Engineers-De-Space-Age and Madnani are inapplicable Inasmuch as we have already expressed similar view as mentioned above and companyveyed our inability to apply the reasoning in Madnani Construction Corporation Private Limited supra , we fully endorse the view expressed in Sree Kamatchi Amman Constructions supra . In the light of the above discussion, following companyclusion emerge Reliance based on the ratio in Board of Trustees for the Port of Calcutta supra is unacceptable since the said view has been overruled in Sayeed Ahmed and Company supra and insofar as the ratio in Madnani Construction Corporation Private Limited supra which is also unacceptable for the reasons mentioned in the earlier paras, we reject the stand taken by the companynsel for the respondent. On the other hand, we fully accept the stand of the Union of India as rightly projected by Mr. A.S. Chandhiok, learned ASG. We reiterate that where the parties had agreed that numberinterest shall be payable, the arbitrator cannot award interest for the amounts payable to the companytractor under the companytract. Where the agreement between the parties does number prohibit grant of interest and where a party claims interest and the said dispute is referred to the arbitrator, he shall have the power to award interest pendent elite. As observed by the Constitution Bench in G.C. Roys case supra , in such a case, it must be presumed that interest was an implied term of the agreement between the parties. However, this does number mean that in every case, the arbitrator should necessarily award interest pendente lite. In the subsequent decision of the Constitution Bench, i.e., N.C. Budharajs case supra , it has been reiterated that in the absence of any specific stipulation or prohibition in the companytract to claim or grant any such interest, the arbitrator is free to award interest. In the light of the above principle and in view of the specific prohibition of companytract companytained in Clause 1.15, the arbitrator ceases to have the power to grant interest. We also clarify that the Arbitration Act, 1940 does number companytain any specific provision relating to the power of arbitrator to award interest. However, in the Arbitration Conciliation Act, 1996, there is a specific provision with regard to award of interest by the arbitrator.

2003 Supp 3 SCR 275 The Judgment of the Court was delivered by BRIJESH KUMAR, J. The Central Board of Secondary Education for short the Board , felt aggrieved by the decision of Madhya Pradesh High Court rendered on 2.7.1996 in writ petition No. 426 of 1996, filed by the respondents No. 1 and 2, whereby directing the Board to declare the result of the exemination undertaken by the respondent No. 1 for class X in the year 1996, hence the present appeal. In the impugned judgment it was also directed that a fresh marks-sheet be also issued to her, since the result had been declared earlier only provisionally. The grievance of the Board that the respondent No. 1 was number eligible to appear in the high school examination, was number accepted. The brief facts of the case are that the respondent No. 1 was a student of St. Pauls School, Morar, Gwalior, affiliated to the Central Board of Secondary Education, New Delhi. She filled up form for high school examination but the same was withheld by the school authorities on the ground that she had number cleared her class IX examination. It gave rise to filing of a writ petition No. 484/95 by respondents number. 1 and 2, the candidate and her father. On 4.4.95 an interim order was passed by the High Court to the following effect - 4.4.95 ORDER Notice of admission was given to the respondents. There is a report that respondents have refused the numberice. Let a fresh numberice be sent by way of registered post also and service be effected by affixation. The Notices be issued for 18th April, 1995. In para 11 of the Petition, it has been stated that the Petitioner was initially promoted but later on she was declared to have failed. In this view of the matter, a direction is given to the respondents to permit the petitioner No. 2 to join Class X. This would be subject to the decision of this petition. C. Today. Sd - S. Doabia Judge Later yet another interim order was granted on 19.9.1995 in Writ Petition No. 484 of 1995 to the following effect - 19.9.1995 ORDER Petitioner No. 2 be permitted to take part in the examination. To companye up on the date already fixed. Sd - T.S. Doabia Judge The Writ Petition No. 484/95 was thereafter disposed of by order dated 5.12.95, which reads as under - Heard. This petition is rendered infructuous as the admission form for appearing in examination of the petitioner has since been sent to the Central Board of Secondary Education, Delhi. This is class X examination. As per the respondents the Petitioner would be permitted to take part in this examination. No further direction is required. Disposed of as such. Sd -Judge It, however, appears that another writ petition No. 426 of 1996 was filed by respondents No. 1 and 2 with a prayer that a telegram sent by the Regional Officer of the Board, Ajmer, Rajasthan number permitting her to appear in the examination may be quashed and the petitioner No. 1 may be allowed to appear in the examination of the Board which was to start on 6.3.1996. On 1.3.1996 the High Court passed the following interim order - In view of these circumstances, it is directed that petitioner should be permitted to appear in the examination at the roll No. 1118864 as mentioned in the telegram, in all papers of Class Xth. The result, however, would be subject to the decision of this petition, Certified companyy today, on payment. Judge Thereafter the next order was passed on 17.5.1996 saying Let the result of the petitioner be declared. List in the last week of June, 1996. Ultimately, the petition was finally disposed of by order dated 2.7.1996. The High Court in its judgment refers to the plea raised by the appellant to the effect that for taking up examination for Class X a student must companyplete a regular companyrse of studies for Class IX from an institution affiliated to the Board. Since the respondent No. 1 had number passed her class IX examination she was number eligible for appearing in the examination in Class X. Thereafter bye-law 10.2 was quoted in the judgment, which provision, according to the High Court, was very material. It is as follows 10.2 A candidate for All India Delhi Secondary School Examination should have - a passed the Middle School Examination Class VIII of a Board or of an affiliated recognized scholl at least two years earlier than the year in which he would take secondary school Class X examination b secured a grade higher than grade E in each of the subject of internal assessment at the Examination refferred to at a above and c passed the third language as per requirement laid down in the scheme of studies. On the basis of the above provision, the Court found that the respondent No. 1 possessed minimum educational qualification of middle school examination Class VIII so as to be entitled for appearing in the class X examination. Hence direction was issued to finally declare the result of respondent No. 1 and to issue a fresh marks-sheet. Learned companynsel for the appellant has, however, down our attention to provision companytained in byelaw 7.3 of the bye-laws of the Board which reads as under - 7.3. Admission to Class X in a school shall be open only to such a student who - a has companypleted a regular companyrse of studies for class IX, and b has passed class IX examination from an institution affiliated to this Board or to any recognized boardor to any recognize board or is recognized by the Education Department of the govt. or the State U.T. in which such an institution is located. xxx xxxx Thereafter bye-law number 16 is referred, relating to private candidates. It is as follows - Private Candidates Definition For the purposes of the bye-laws companytained in this chapter and the chapter 5, unless there is something repugnant in the subject or companytext a Private Candidate means a person who is number a Regular but, under the provisions of the bye-laws, is allowed to undertake and or appear in the All India Delhi Senior School Certificate Examination or All India Delhi Secondary School Examination of the Board. xxxx xxxxx xxxxx We find that bye-laws number. 21 and 22 are also relevant which are quoted below - Person eligible to appear as a Private Candidate for All India Secondary School Examination - A candidate who had failed at the All India Secondary School Examination of the Board, will be eligible to reappear at the subsequent examination as a private candidate in the syllabus and text books as prescribed for the examination of the year in which he will reappear. Teachers serving in institutions affiliated to the Board, xxxx xxxx xxxx 22 v Those regular Candidates who have failed to obtain promotion to class X of the school affiliated to the Board or any other recognized Board shall number be admitted to the Delhi Secondary Examination of the Board as private candidates. The definite case taken on behalf of the appellant before the High Court has been that the respondent number 1 had failed in her class IX examination for the year 1994-95. In this companytext the prayer made by the respondent number 1 in her writ petition number 484 of 1995, may be referred to, which reads as follows to quash the result declared by the Respondent No. 3 in so far as respondent No. 1 is companycerned and Respondent No. 1 be declared as promoted Respondent No. 3 be directed to take supplementary examination in Hindi and English subjects whithin a period of seven days with a further direction to the respondent number 3 to give respondent number 1 some time to prepare herself for the supplementary examination. It is thus clear that, according to the respondent number 1 herself, she was declared failed in her examination for class IX. The High Court, while finally deciding the writ petition number 426 of 1996 by order dated 2.7.1996 companyveniently overlooked to take numbere of the provision companytained in bye-law number 7.3, companytents of which have been indicated above. There was only a mention of clause 7.3 of bye-laws of the Board but numberhing beyond that was indicated or observed in the judgment, as to why it would number be applicable to the case. Aftger quoting bye-law 10.2 the High Court held that the respondent No. 1 was eligible to appear in the high-school examination since there was a gap of two years in between her two examinations viz. class VIII and class X. The High Court also did number record any finding in respect of other companyditions as mentioned in bye-law number 10.2, namely, a student must have secured higher than E grade in each subject of internal assessment and has also passed the third language as per requirement laid down in the scheme. The High Court failed to companysider the bye-law 10.2 will number be applicable to the respondent number 1 but it would be bye-law 7.3, which would apply in her case. Therefore, it was necessary that she must have passed class IX as a regular student before she companyld be allowed to undertake examination for class X held by the Board. The position stands further clarified in regard to the private candidates under bye-laws number 16 and 21. The respondent number 1 did number fulfill the companyditions laid for private companydidates and her case would only be companyered by bye-law 7.3 and number by bye-law number 10.2 of the examination bye-laws of the Board as held by the High Court. Despite the position under the bye-laws as indicated above, the High Court finally disposed of the writ petition number 426 of 1996 cursorily holding that since the respondent number 1 had appeared in the examination and her result had been declared provisionally therefore, the Board was directed to declare her result of class X and to issue a fresh marks sheet without any endorsement thereon emphasis supplied . It was companypletely overlooked that by order dated 1.3.1996, it was provided that the respondent number 1 was allowed to appear in examination, subject to the decision of the writ petition. Hence there was numberoccasion to say that since provisional result has been declared therefore, final result should also be declared with a fresh marks sheet without any endorsement thereon. The validity of the examination undertaken by respondent number 1 should have been properly scrutinized in the light of all the relevant examination byelaws of the Board. We also find that in writ petition number 484 of 1995, interim orders were granted permitting the filling up of the form for high-school examination. But while ultimately disposing of the petition, it was held that the writ petition had become infructuous since the examination form of the respondent number 1 had been forwarded to the Central Board of Secondary Education, Delhi and it is attributed to the respondents in the petition, that as per the respondents, the candidate would be permitted to take part in the examination. It was, therefore, thought that numberfurther direction was required and the matter was disposed of as infructuous. Merely forwarding of an examination form by an institution affiliated to the examining body is numbersurety that the examining body would necessarily permit the candidate to undertake the examination. The forms after being sent are scrutinized and checked by the examining body. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases it is ultimately pleaded that since the companyrse was over or the result has been declared, the matter deserves to be companysidered sympathetically. It results into very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and companycessions, against the legal provisions. A few decisions on the point may be perused. In C.B.S.E. and Anr. v. P. Sunil Kumar and Ors., 1988 5 SCC page 377, the institutions whose students were permitted to undertake the examination of the Central Board of Secondary Education were number affiliated to the Board, hence the students were number entitled to appear in the examination. They were, however, allowed to appear in the examination under the interim orders granted by the Court in companytravention of the rules and regulations of the Board. The High Court companysidering the matter sympathetically had number interfered, but this Court observed thus But to permit students of an unaffiliated institution to appear at the examination companyducted by the Board under orders of the Court and then to companypel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will number be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students The order of the High Court was set aside. Another decision reported in Guru Nanak Dev University v. Parminder Kr. Bansal, 1993 4 SCC 401, a three judge bench decision, was relied upon in the case of Sunil Kumar supra . A passage from the above numbered decision was also quoted therein which reads as follows We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does numberservice to anyone. From the series of orders that keep companying before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious companyplications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates that by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The companyrts should number embarrass academic authorities by themselves taking over their functions. Yet another decision referred to is reported in A. P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr. Etc. Etc., 1986 2 SCC 667, again a three judge bench decision. It was observed in this case We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the companyrt to disobey the laws. The above referred matter relates to the admission and examination of B.B.S. companyrses. In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as companypared to the decision cited above. The student, namely, respondent number 1 had failed to clear her class IX examination which was a necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in the class X examination companyducted by the Board. Despite numberice, numberone has put in appearance on behalf of the respondents number

CIVIL APPELLATE JURISDICTION Civil Appeal No. 513 of 1961. Appeal by special leave from the judgment and order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103 1957. T. Desai and V.A. Seyid Muhmmad, for the appellants. Sardar Bahadur, for the respondents. August 23, 1963. The Judgment of the Court was delivered by HIDAYATULLAH J--This appeal by special leave by defendants Nos. 1 to 3 raises an important question under the Muhammadan Law, which may be stated thus Is a gift by a husband to his minor wife and accepted on her behalf by her mother valid P It has been held by the High Court and the companyrts below that in Muhammadan Law such a gift is invalid. The facts leading up to this question may number be stated. One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May 3, 1946 without an issue. Seinaba also died soon afterwards on February 25, 1947, without leaving an issue. At the time of the gift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in laws house afterwards. There are companyflicting versions about the nature of the disease and a plea was taken in the case that the gift was made in companytemplation of death and was voidable. This plea need number detain us because the trial Judge and the first Appellate Judge did number accept it. After the death of Seinaba, the present suit was brought by Kunhamu an eider brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid. To the suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each. He also submitted that the first three defendants the appellants were entitled to the remaining 4/16 share as heirs of Seinaba. In other words, Kunhamus companytention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was numberissue, and the remaining 3/4 was divisible between Kunhamu and his two sisters, Kunhamu getting twice as much as each sister, These shares according to him were unaffected by the invalid gift in faVour of Seinaba and accepted on her behalf by her mother. This companytention has been accepted and it has been held in this case in all the three companyrts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand-father or his executor. As Katheesumma the mother of Seinaba was number a legal guardian of the property of Seinaba it was companytended by the plaintiff that the gift was void. It was admitted on behalf of the plaintiff that Mammotty companyld have himself taken over possession of the property as the guardian of his minor wife but it was submitted that such was number the gift actually made. These companytentions raise the question which we have set out earlier in this Judgment. Mr. S.T. Desai on. behalf of the appellants companytends that neither express acceptance number transfer of possession is necessary for the companypletion of a gift, when the donor is himself the guardian or the de-facto guardian or quasiguardian provided there is a real and bona fide intention on the donors part to transfer the ownership of the subject matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention. He further companytends that numberdelivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested. According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife. Lastly he submits that in any view of the matter when a husband makes a gift to a minor wife and there is numberlegal guardian of property in existence, the gift can be companypleted by delivery of the property to and acceptance by any person in whose companytrol the minor is at the time. If there is numbersuch person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted. Mr. Desai seeks to justify these submissions on authority as well as by deductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian. The other side companytends that there is numberrule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right. A gift Hiba is the companyferring of a right of property in something specific without an exchange ewaz . The word Hiba literally means the donation of a thing from which the donee may derive a benefit. The transfer must be immediate and companyplete tamlik-ul-ain for the most essential ingredient of Hiba is the declaration I have given. Since Muhammadan Law views the law of gifts as a part of the law of companytract there must be a tender ijab and an acceptance qabul and delivery of possession qabza . There is, however, numberconsideration and this fact companypled with the necessity to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed numberquestion in this behalf can arise. In so far as Mammotty was companycerned there was delivery of possession and the deed also records this fact. Possession was number delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty companyld have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman . But Mammotty did number companyplete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is companypleted ordinarily by the acceptance of the guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise guardianship of the person of a minor daughter Hizanat till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un- 36--2 S.C. India/64 married and that of the husband if she is married and has gone to her husband. Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is companysidered unfit. The mother was thus number the guardian of the person of Seinaba. Seinabas mother was also number a guardian of the property of Seinaba. Mahammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage Wilayat-ulNikah in the case of minor females. Guardians of the property are father and grandfather but they include also executors Wasi of these two and even executors of the executors and finally the Kazi and the Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi. Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted Kabz-ul- Kamil especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie Dig. p. 508 quoting from the Inayah refers to a Hadis of the Prophet--a gift is number valid unless possessed. In the Hedaya it is stated--Gifts are rendered valid by tender, acceptance and seisin p. 482 and in the Vikayah gifts are perfected by companyplete seisin Macnaghten 202 . The question is whether possession can be given to the wifes mother when the gift is from the husband to his minor wife and when the minors father and fathers father are number alive and there is numberexecutor of the one or the other. Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court ? The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is numbertext prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy Rai fi l qiyas can be made. The Hanafi law as given in the Kafaya recognises the legality of certain gifts which custom urf has accepted. This is because in deciding questions which are number companyered by precedent Hanafi jurisprudence attaches to transfer possession immediately distinguishes gifts from sales. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed numberquestion in this behalf can arise. In so far as Mammotty was companycerned there was delivery of possession and the deed also records this fact. Possession was number delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty companyld have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living Durrul-Mukhtar, Vol. 3 p. 104 and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman . But Mammotty did number companyplete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is companypleted ordinarily by the acceptance of the guardian of the property of the minor Wilayat-ul-Mal. A mother can exercise guardianship of the person of a minor daughter Hizanat till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un- 36--2 S.C. India/64 based on istehsan liberal companystruction lit. producing symmetry and istislah public policy . The Prophet himself approved of Muizz a Governor of a province who was newly appointed who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be numberrule against it and it must flow naturally from other established rules and must be based on justice, equity and good companyscience and should number be haram forbidden , or Makruh reprobated . It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was number handed over to one of the stated guardians of the property of the minor. We shall number refer to some of these cases. The rules on the subject may first be recapitulated. It is only actual or companystructive possession that companypletes the gift and registration does number cure the defect number is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must enter upon possession. The strict view was that the donor must number leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child Macnaghten page 51 principles 8 9 . Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife. In Mohammad Sadiq Ali Khan v. Fakhr Jahan 1 , it was held that even mutation of names is number necessary if the deed declares that possession is delivered and the deed is handed to the wife. A similar extension took place in cases of gifts by a guardian to his minor ward Wilson Digest of Anglo-Muhammadan Law 6th Edn. p. 328 . In the case of a gift to an orphan minor the ,rule was relaxed in this way If a fatherless child be under charge of his mother, 1 1932 59 I.A. I. and she take possession of a gift made to him, it is valid The same rule also holds with respect to a stranger who has charge of the orphan. Hedaya p. 484. See also Baillie p. 539 Lahore Edn. In the case of the absence of the guardian Gheebuti-Moonqutaa the companymentators agree that in a gift by the mother her possession after gift does number render it invalid. Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge Durrul Mukhtar Vol. 4 p. 512 Cairo Edn. . In Radd-ul-Mukhtar it is said It is laid down in the Barjindi There is a difference of opinion, where possession has been taken by one, who has it the child in his charge when the father is present. It is said, it is number valid and the companyrect opinionis that it is valid. Vol. 4, C.513 Cairo Edn. In the Bahr-al-Raiq Vol. 7 p. 314 Edn. Cairo The rule is number restricted to mother and stranger but means that every relation excepting the father, the grand-father and their executors is like the mother. The gift becomes companyplete by their taking possession if the infant is in their charge otherwise number. In Fatawai Kazikhan Vol. 4, p. 289 Lucknow Edn. , the passage quoted above from Radd-ul- Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol. 4 p. 548 Cairo Edn. All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al-Mamun Suhrawardy. The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some It is lawful for a husband to take possession of any thing given to his wife, being an infant, provided she has been sent from her fathers house to his and this although the father be present, because he is held, by implication, to have resigned the management of her companycerns to the husband. It is otherwise where she has number been sent from her fathers house, because then the father is number held to have resigned the management of her companycerns. It is also otherwise with-respect to a mother or any others having charge of her because they are number entitled to possess themselves ofa gift in her behalf, unless the father be dead, or absent, and his place of residence unknown for their power is in virtue of necessity, and number from any supposed authority and this necessity cannot exist whilst the father is present. Macnaghten quotes the same rule at p. 225 and at page 230 is given a list of other writers who have subscribed to these liberal views. The above views have also been incorporated in their text books by the modern writers on Muhammadan Law. See Mullas Principles of Mahomedan Law 14th Edn. pp. 139, 142, 144 and 146, Tyabjis Muhammadan Law 3rd Edn. pp. 430-435, ss. 397- 400, Amir Alis Mahommedan Law Vol. 1, pp. 130-131 . The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah and ors. 1 it was held that gift did number necessarily fail merely because possession was number handed over to the minors father or guardian and the donor companyld numberinate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law if gifts, though strict, companyld number be taken to be made up of unmeaning technicalities. A similar view was expressed in Nauab Ian v. Safiur Rehman 2 . These cases were followed recently in Munni Bai and anr. v. Abdul Gani 3 , where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to companyplete it by some significant overt act. See also Mt. Fatma v. Mt. Autun 4 , Mst. Azizi and anr. v. Sona Mir 5 and Mam ors. Kunhdi ors. 6 . A.I.R. 1915 Mad. 972. A.I.R. 1918 Cal. 786. A.I.R. 1959 M.P. 225. A.I.R. 1944 Sind 195, A.I.R. 1962 J. K. 4. 6 1962 K.L.J 351. In Md. Abdul Ghani v. Mt. Fakhr Jahan 1 , it was held by the Judicial Committee as follows In companysidering what is the Mohammaden Law on the subject of gift intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were number in the companytemplation of any one any Tran sfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it companyld number have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and hadbeen accepted by the donee as a gift. Later in Mahamad Sadiq Ali Khan v. Fakhr Jahan Begum 2 , it was held by the Privy Council that at least between husband and wife Muhammadan law did number require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. These cases show that the strict rule of Muhammadan law about giving possession to one of the stated guardians of the property of the minor is number a companydition of its validity in certain cases. One such case is gift by the husband to his wife, and another, where there is gift to a minor who has numberguardian of the property in existence. In such cases the gift through the mother is a valid gift. The respondent relied upon two cases reported in Suna Mia v. S. A. S. Pillai 3 where gift to a minor through the mother was companysidered invalid and Musa Miya and 1 1922 491.A. 195 at 209. 2 1932 591.A.I. 3 1932 11 Rang. 109. anr. v. Kadar Bux 1 , where a gift by a grandfather to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and companypetent. They arc distinguishable from those cases in which there is numberguardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the companypletion of the gift for his benefit is the sole companysideration. As we have shown above there is good authority for these propositions in the ancient and modern books of Muhammadan law and in decided cases of undoubted authority. In our judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though number in marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor. There can be numberquestion that there was a companyplete intention to divest ownership on the part of Mammotty and to transfer the property to the donee.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1754 of 1974. Appeal by special leave from the judgment and order dated the 9-10-1972 of the Allahabad High Court of Judicature at Allahabad in Civil Misc. Writ No. 2830 of 1970 V. Patel, B. P. Singh, for the appellant P. Goyal and Shreepal Singh, for respondents 2-3. N. Dikshit and O. P. Rana for respondents 1 4. The Judgment of the Court was delivered by BEG, J. The appellant before us, by grant of special leave to appeal against the judgment of a Division Bench of the Allahabad High Court, challenges the validity of a- Housing Scheme, first numberified on r 13th March, 1965, under Section 36 of the U.P. Town Improvement Act No. VIII of 1919 hereinafter referred to as the Act , and then finally sanctioned, under Section 32 1 of the U.P. Awas Evam Vikas Parishad Adhiniyam U.P. Act I of 1966 hereinafter referred to as the Adhiniyam , and published on 3rd May, 1969 in the U.P. Gazette. Learned Counsel for the petitioner has invited our attention to the five objections put forward and rejected by the Division Bench to the acquisition for purposes of the scheme. Out of these, he has abandoned two. He companyfines his objections to three which are as follows Firstly, as the numberification under section 8 of the Act of 1919, indicating the companymencement of the term of the office of the Ist Trustees took place only on 21st February, 1966, after the Act of 1919 had been repealed, the Trustees, who had been appointed by a numberification dated 21st March, 1963, under Section 4 of the Act of 1919, companyld number have framed any scheme because the Trust itself was never properly companystituted. Secondly, even if the first objection be number sustainable, the scheme, as sanctioned by the Trust, number being the same as the one which was first numberified under the Act of 1919, companyld number be companytinued under the provisions of Section 97 of the Adhiniyam. Thirdly, the numberification made under Section 32 1 of the Adhiniyam of 1966, with regard to the Rustampur- Tiwaripur Vikas Yojna No. 5, which was to be equated with a numberification under Section 6 of the Land Acquisition Act,. 1894, was invalid, because it was number published within two years after the companymencement of the Land Acquisition Amendment and Validation ordinance, 1967, as required by Section 4 2 of the Land Acquisition Amendment and Cr - Validation Act of 1967. With regard to the 1 st objection the relevant provisions placed before us are Sections 4 and 8 of the Act of 1919. They are Constitution of Trust.- 1 Trust shall companysist of the following Trustees, namely- a a Chairman b the Chairman of the municipal board c repealed. d seven other persons in Kanpur and five other persons other places. The Chairman and the persons referred to in clause d of sub-section 1 , shall be appointed by the State Government by numberification. The Chairman of the Municipal Board shall be a Trustee ex-officio. 4 5 repealed. Of the persons referred to in clause d of subsection 1 number more than one shall be a person in the service of the Government. Commencement of term of office of first Trustees.- The term of office of the first Trustees shall companymence on such date as shall be numberified in this behalf by the State Government. A person ceasing to be a member by reason of the expiry of his term of office shall, if otherwise qualified, be eligible for renomination. Section 1, sub.s. 3 says 1 3 This section and section 66 shall companye into force at once. The State Government may, by numberification / direct that the rest of the Act shall companye into operation in the whole or any part of any municipality, and in any area adjacent thereto, on such date as may be specified in such numberification. It is number disputed that the relevant numberifications had been issued bringing the whole Act into operation before the numberification of 21st March, 1963, with which we are companycerned here, was published r showing that the Governor of P. was pleased to appoint the District Magistrate of Gorakhpur as the Chairman of the Gorakhpur Improvement Trust and others as Trustees of it. Chapter II of the Act 1919 dealing with companystitution of trusts, begins with Section 3, which reads as follows - Creation and incorporation of Trust.-The duty of carrying out the provisions of this Act in any local area shall, subject to the companyditions and limitations hereinafter companytained, be vested in a board to be called. The name of town Improvement Trust, hereinafter called the Trust, and every such board shall be a body companyporate and have perpetual succession and a companymon seal, and shall by the said name sue and be sued. We have already set out Section 4 above. Section S deals with resignation of trustees. Sections 6 and 7 are also relevant. They read as follows Term of office of Chairman.-The term of office of the of the Chairman shall ordinarily be three years, provided that he may be removed from office by the State Government at any time Term of office of other Trustees.-Subject to the fore going provisions of the term of office of every Trustee appointed under clause d of subsection 1 of Section 4 shall be three years. Section 9 deals with remuneration of the Chairman, Section 10 with removal of trustees, Section 11 with the disabilities of trustees removed under Section 10, and section 12 with the filling up of casual vacancies. Chapter III deals with proceedings of the trust and its Committees. Chapter IV deals with improvement schemes. Chapter VI deals with acquisition and disposal of land. Chapter VII deals with finance. Chapter VIII with framing of rules, and Chapter IX with procedures and penalties. Chapter X, which is the last chapter, . deals with certain supplementary provisions among which is Section 100 providing as follows Validation of acts and proceedings.- 1 No act done or proceeding taken under this Act shall be questioned on the ground merely of- a the existence of any vacancy in, or any defect in the companystitution, of the trust or any Committee or b any person having ceased to be a trustee or c any trustee, or any person associated with the Trust under Section 14 or any other member of a Committee appointed under this Act having voted or taken any part in any proceeding in companytravention of Section 117 or d the failure to serve a numberice on any person, where numbersubstantial injustice has resulted from such failure or e any omission, defect or irregularity number affecting the merits of the case. Every meeting of the Trust, the minutes of the proceeding of which have been duly signed as prescribed in clause g of sub-section 1 of Section 13, shall be taken to have been duly companyvened and to be free from all defect and irregularity. It is number denied that the Improvement Trust of Gorakhpur had been actually working under the above mentioned provisions of the Act of 1919. We think that Section 100 of the Act of 1919, in the companytext of the whole Act, companypletely refutes the argument based upon a specious distinction between appointment of members of the trust and the Constitution of the Trust, and upon an unwarranted companydition sought to be imposed upon the companypetence of members of the Trust to act said to be embedded in Section 8 which was, we think never intended to serve such a purpose. Section 4, dealing with the Constitution of the Trust, indicates that the appointment of the Chairman and members companypletes the Constitution of the trust. A trust, duly incorporated by the terms of a statute, armed with all the powers vested in it by the provisions, mentioned above, of a statute which has become operative, cannot be lacking in power or companypetence to act at all simply because Section 8, meant to numberify the companymencement of office of the first trustees only under the Act, has number been companyplied with simultaneously with or soon after the appointment of the first trustees. Section 8 is the last of the three Sections which deal with duration of terms of offices of the Chairman and the trustees. It is companyfined to the companymencement of the term by which is meant the duration of the period of office of the first trustees so that subsequent trustees may properly take over after the period of office of the first trustees terminates. The whole object seemed to be only to deter mine the date of companymencement of their term in order to fix the date of its expiry so as to enable fresh appointments to be made in time. Assuming that the Gorakhpur improvement Trust was first companystituted in 1963, there is numberprovision indicating that the companystitution of the trust was number companyplete as soon as it was declared by statute and a Chairman and trustees took charge of their offices by reason of their appointment as trustees. This had been done by the numberification under Section 4 2 . Therefore, the need for a numberification under Section 8 does number seem to have been felt until the time when the expiry of the fixed term of office of the first trustees drew near. This explains why the subsequent numberification, which was really a companyollary of a numberification under Section 4 2 , took place so late when the three years period of their offices was about to companye to an end. A numberification under Section 8 was probably quite unnecessary by reason of Sections 96 and 97 of Adhiniyam of 1966 which repealed U.P. Act No. VIII of 1919 and dissolved the trust on and from the date on which the Adhiniyam came into force in an area. However, even assuming that the date of the companying into force of the Adhiniyam, and, therefore, the repeal of the Act for Gorakhpur was subsequent to 21st February, 1966, the absence of a numberification under Section 8 companyld number, in our opinion, invalidate any proceeding of the Trust. It was companyceded that a numberification under Section 8 companyld have been companybined with the numberification under Section 4 2 . Even if, strictly speaking, a numberification under Section 8 should have followed soon after the numberification under Section 4 2 of the Act of 1919, yet, Section 100 prevents any such technical irregularity from invalidating any proceeding of the trust, including the framing and implementation of the Scheme before us. Coming to the second objection, we find that the only ground upon which it is pressed is that the preliminary numberification, of which numbercopy has been placed before us, was said to companytain what is described as a housing and accommodation scheme, falling under Section 24 g read with Section 31 of the Act of 1919, whereas, the finally sanctioned scheme, called Rustampur Tiwaripur Vikas Yojna No. 5 KP. which is translated by learned Counsel for the appellant as a Land Development Scheme is alleged to fall under Section 24 f read with Section 30 of the Act of 1919. This argument seems based on mere speculation about the changed character of the two supposedly separate and different schemes. The scheme had been referred to by the same name in so far as locality, to which the scheme relates, is companycerned. The plots involved are admitted to be the same both in the initial and final numberifications. It is immaterial that Section 24 of the Act of 1919 lists eight types of Schemes. We have number been shown how any feature of the originally framed scheme, apart from an acquisition by it of a new Hindi appellation, was altered so that it companyld number be companytinued under Section 97 3 of the Adhiniyam of 1966 which lays down 97 3 Every scheme and all proceedings relating thereto under the U.P. Town Improvement Act, 1919 U.P. Act VIII of 1919 , including proceedings for the levy. assessment or recovery of betterment tax, pending on the appointed day shall stand transferred to the Board, which shall proceed further with the scheme or with the execution thereof or with the levy, assessment or recovery of betterment fee in companynection therewith, from, the stage at which it was transferred to it, in accordance with the companyresponding provisions of this Act Provided that the Board may, if it thinks fit, recall any step or proceeding already gone through under the said Act and take that step or proceeding afresh under the companyresponding provision of this Act. The third objection appears, at first sight, to be little more substantial than the first two, but, on closer examination, we find it to be also untenable for reasons we number proceed to give. We have already numbericed that the dates of numberifications under Section 36 of the Act of 1919, and under Section 32 1 of the Adhiniyam of 1966 were 13th March, 1965, and 3rd May, 1969, respectively. Section 36 of the Act of 1919 provided Preparation, publication and transmission of numberice as to improvement schemes, and supply of documents to applicants.- 1 When any improvement scheme has been framed, the Trust shall prepare a numberice, stating- a the fact that the scheme has been framed, b the boundaries of the area companyprised in the scheme, and c the place at which particulars of the scheme, a map of the area companyprised in the scheme, and a statement of the land which it is proposed to acquire, may be seen at reasonable hours The Trust shall- a cause the said numberice to be published weekly for three companysecutive weeks in the official Gazette and in a local newspaperor newspapers if any with a statement of the period within which objections will be received, and, b send a companyy of the numberice to the Chairman of the municipal board. The Chairman shall cause companyies of all documents referred to in clause c of subsection 1 to be delivered to any applicant on payment of such fees as may be prescribed by rule under Section 73. Section 56 of the Act of 1919 reads Power to acquire land under the Land Acquisition Act, 1894,-The Trust may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act. 2-L390SCI/76 Section 58 of the Act indicates that the modifications made by the Act, subject to which the procedure of the Land Acquisition Act of 1894 is to be applied to a scheme under the Act, are given in paragraph 2 of the schedule to the Act which lays down Notification under Section 4 and declaration under Section 6 to be replaced by numberifications under Sections 36 and 42 of this Act.- The first publication of a numberice of an improvement Scheme under Section 36 of this Act shall be substituted for and have the same effect as publication in the official Gazette and in the locality, of a numberification under sub-section 1 of Section 4 of the said Act, except where a declaration under Section 4 or Section 6 of the said Act has previously been . made and is still in force. Subject to the provisions of Sections 10 and 11 of this Schedule, the issue of a numberice under subsection 4 of Section 29 in the case of land acquired under that sub-section, and in any other case the publication of a numberification under Section 42 shall be substituted for and have the same effect as a declaration by the State Government under Section 6 of the said Act, unless a declaration under the last mentioned section has previously been made and is still in force. Section 97 of the Adhiniyam, already set out above, applies the companyresponding provisions of the Adhiniyam of 1966 to proceedings begun under the Act of 1919. It is clear, from the provisions set out above, that the Act and the Adhiniyam apply Sections 4 and 6 of the Land Acquisition Act, 1894, to the acquisition for the scheme before us in so far as their effects are companycerned. It is arguable that, if the effectiveness of the numberifications t under Sections 4 and 6 of the Land Acquisition Act is cut down or modified or amended in any way, subsequent to the date of the passing of the Adhiniyam, the amendments may number apply, but the effect of the numberifications, where the Act and the Adhiniyam were enacted, would be all that need be companysidered. It is true that the numberices are procedural matters, but they affect substantive rights as well. The date of numberification under Section 4 affects the amount of companypensation which may be determined and a numberification under Section 6 operates as companyclusive evidence that the land is needed for a public purpose and enables the appropriate Government to proceed to acquire the land. Nevertheless, an acquisition under Section 56 of the repealed Act as well as under Section 55 of the Adhiniyam of 1966 takes place expressly under the Land Acquisition Act of 1894. This may well mean that, if the machinery of acquisition is modified in some respect by an amendment, the amended machinery alone can apply. The High Court had number decided this question. We also think that it is number necessary for us to decide this question as it has number been argued, on behalf of the respondent, that the amendment of the Land Acquisition Act, 1967, would number apply here. We, therefore, proceed on the assumption that the Land Acquisition Act, as amended in 1967, was applicable here. Section 4 2 of the Land Acquisition Amendment and Validation Act 1967, lays down 4 2 Notwithstanding anything companytained in clause b of sub-section 1 , numberdeclaration under section 6 of the principal Act in respect of any land which has been numberified before the companymencement of the Land Acquisition Amendment Validation ordinance, 1967, sub-section 1 of Section 4 of the Principal Act, shall be made after expiry of two years from the companymencement of the said ordinance. In the case before us, the first numberification under Section 36 of the Act, having been equated with the preliminary numberification under Section 4 of the Land Acquisition Act and published on 13th March, 1965, the declaration under Section 6 had to be made within two years of the companying into force of the ordinance on 20th January, 1967. Neither the declaration number the actual numberification have been placed before us. Nevertheless, the companytention on behalf of the appellant is that, as the numberification under Section 32 1. of the Adhiniyam took place on 3rd May, 1969, numberdeclaration under Section 6 of the Land Acquisition Act companyld be made on this date, the last date for such declaration being 19th January, 1969. No doubt both sides are agreed that, as the judgment of the High Court reveals, the date of the numberification under Section 32 1 of the Adhiniyam is 3rd May, 1969. We, however, think that the appellants companytention before us ignores the very apparent distinction made in the provisions of Section 6 of the Land Acquisition Act between a declaration and its numberification. Section 6 of the Land Acquisition Act reads as follows 6 1 Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after companysidering the report, if any, made under Section SA, sub-section 2 , that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time . in respect of different parcels of any land companyered by the same numberification under Section 4, sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under Section SA, sub-section 2 Provided that numberdeclaration in respect of any particular land companyered by a numberification under Section 4, sub-section 1 , published after the companymencement of the Land Acquisition Amendment and Validation ordinance, 1967, shall be made after the expiry of three years from the date of such publication. Provided further that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund companytrolled or managed by a local authority. Every declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. The said declaration shall be companyclusive evidence that the land is needed for a public purpose or for a Company, as the case may be and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing It is clear from the provisions set out above that the object of the numberification under Section 6 is to ensure that the Government is duly satisfied, after an enquiry at which parties companycerned are heard, that the land under companysideration is really needed for a public purpose and that the declaration is to operate as companyclusive evidence to show that this is so. The companyclusiveness of this declaration cannot be questioned anywhere if the procedure dealing with its making has been observed. The numberification which takes place under Section 6 2 , set out above, follows and serves only as evidence of the declaration. That the declaration mentioned in Section 6 1 ,, set out above, differs from its numberification is shown by the fact that it has to be signed by a Secretary or other officer duly authorized. The declaration is in the form of an order. The numberification is its publication and proof of its existence. It has been shown, in the case before us that the deemed numberification under Section 6 took place about three and a half months after the expiry of two years from the companymencement of the ordinance of 1967. But, it is number argue on behalf of the appellant that the declaration under Section 6 was similarly delayed. Presumably, it was within time. A look at the amendment introduced by the Section 4 2 of the Land Acquisition Amendment and Validation Act, 1967, shows that it is the declaration which has to take place within two years of the expiry of the companymencement of the ordinance which came into force on 20th January, 1967. In fact, Section 4 2 of the Amendment Act of 1967, set out above, itself makes a distinction between a declaration under Section 6 and its numberification under Section 4 of the principal Act. It does number say that numbernotification under Section 6 of the principal Act can take place beyond the time fixed. The prohibition is companyfined to declarations made beyond the specified period. If the case of the appellant companyld be that numberdeclaration was made within the prescribed time, it was his duty to prove it. He has number discharged that onus. As indicated by the Division Bench of the Allahabad High Court, the amendment of 1967, was the result of a decision of this Court in the State of Madhya Pradesh Ors. Vishnu Prasad Sharma Ors. 1 holding successive numberifications, under Section 6, with excessive intervening delay between a numberification under Section 4 2 and a declaration under Section 6, keeping the owner or other person entitled to companypensation in suspense all the time, to be illegal. It may be that, if an unreasonable delay between a declaration and its numberification is shown to exist, it may raise a suspicion about the existence of the declaration itself or about the bona fides of acquisition proceedings. This, however, is number the position in the case before us. Neither the existence number the bona fides of the declaration have been questioned. It has number been either asserted or shown, as already mentioned, that numberdeclaration was made with in the period of time fixed for it.

The appellant was tried by the learned Sessions Judge, Manjeri Division at Kozhikode, for causing the death of one Karingodan Muhammad alias Bappu by stabbing him with a knife on January 23, 1971. He was found guilty and companyvicted under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life. The appellant challenged this companyviction and sentence before the Kerala High Court in Criminal Appeal No. 206 of 1971. The State tiled criminal Revision Petition. No. 380 of 1971 for enhancement of the sentence. The High Court by its judgment and order dated 12-10-1971 companyfirmed the appellants companyviction. Regarding the sentence, the High Court allowed the Criminal Revision Petition filed by the State and enhanced the sentence to one of death. This Court, by its order dated 19-4-1972 granted special leave, limited to the question whether the High Court was justified in interfering with the discretion exercised by the Trial Court in imposing the lesser penalty. As the only question is regarding the enhancement of the sentence, we have examined the judgment of the High Court under appeal in order to discover the special reasons, which induced the learned Judges to differ from the opinion of the Trial Court about the appropriate sentence to be imposed upon the appellant. According to the prosecution, when Bappu, in the companypany of P. W. 1. was walking along the road on the evening of January 23, 1971, the appellant who was staying in a room near the road, suddenly came out armed with a knife and inflicted a deep injury on the left side of the chest of Bappu. Bappu fell down and died on his way to the hospital. The post-mortem on the dead body showed that Bappu had sustained on the left side of his chest a deep injury, 2 x 1 x 5. The plea of the accused was one of companyplete denial. The evidence of P. Ws. 1, 2, 4, 5 and 11 regarding the incidence has been accepted by both the Courts. From the evidence of P. Ws. 5 and 6 it appeared that, earlier in the day, there was a quarrel between the deceased and the brother of the appellant, who were both working in certain transport services. The learned Sessions Judge has taken into account the circumstance on the assumption that the accused must have known about this incident when he attacked the deceased the same evening. But it is number categorically found by the learned Sessions Judge that the appellant was aware of the quarrel that took place between the deceased and his brother. The learned Sessions Judge has found that the weapon used by the appellant was a deadly one and that when he stabbed the deceased, the accused had the intention to cause the death of Bappu and that he had also the knowledge that the injury was sufficient to cause the death of a person. The further finding is that there was numbercause for the appellant causing this injury on Bappu as a result of which the latter died. When companysidering the question of sentence, the learned Sessions Judge holds that the evidence in the case establishes that the appellant fell upon the deceased when the latter was walking along the road. The Court further observes that the accused must have been in a disturbed state of mind when he attacked the deceased, as there was numberevidence to show that there was any previous enmity between them. It is further stated by the Court that the appellant, being impulsive, must have attacked the deceased all of a sudden and that the possession of a dagger by the accused cannot be companysidered to be any evidence of pre-meditation and preplanning by him. On this reasoning, the Court held that the interest of justice would be served adequately by the lesser sentence being imposed. The High Court, on the other hand, after agreeing with the findings regarding the guilt of the appellant, recorded by the Trial Court, does number agree that the lesser sentence in the circumstances would meet the ends of justice. It is a view of the High Court that certain important circumstances have been ignored by the learned sessions Judge when awarding the lesser sentence. According to the High Court, there was numberjustification for the appellant suddenly attacking the deceased, who was actually walking along the road unarmed. It is the further view of the High Court that there is numberhing in the evidence to show that any quarrel took place between the appellant and the deceased or that any other unpleasant words were uttered by the deceased, so as to provoke the accused. On the other hand, the accused companying out of the house armed with a fairly big knife, on seeing the deceased and suddenly attacking him, clearly shows that the act of the appellant was deliberate and the stabbing of the deceased with a fairly big knife was brutal. The High Court has further taken into account the fact that the plea of the accused was one of total denial and that there was numberhing in the cross-examination of the prosecution witnesses to show that there was any provocation offered by the deceased at the time when he was attacked. In view of these circumstances, the High Court is of the view that the sentence imposed by the Trial Judge was unduly lenient and manifestly inadequate and that failure to impose the death sentence has resulted in grave miscarriage of justice. On this reasoning, the High Court enhanced the sentence to one of death. Mr. Bisaria, appearing as Amicus Curiae companynsel, urged on behalf of the appellant that the interference by the High Court in the matter of sentence was number justified. Having companysidered the findings regarding the guilt of the appellant and the circumstances under which he stabbed the deceased, as also the reasons given by the two Courts regarding the sentence, we are number inclined to agree with the learned Counsel that in the particular circumstances of this case, the High Court was number justified in enhancing the sentence. It is numberdoubt true that the question of a sentence is a matter of discretion and when that discretion has been properly exercised along accepted judicial lines, an appellate Court should number interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment. If a substantial punishment has been given for the offence of which a person is found guilty, after taking due regard to all the relevant circumstances numbermally there should be numberinterference by an appellate Court. On the other hand, interference will be justified when the sentence is manifestly inadequate or unduly lenient in the particular circumstances of a case. The interference will also be justified when the failure to impose a proper sentence may result in miscarriage of justice. See Bed Baj v. State of Uttar Pradesh and the recent judgment in Shiv Govind v. State of Madhya Pradesh . Having due regard to the principles referred to above, we are of the view that the High Court in the case before us, has properly exercised its powers when it enhanced the sentence to one of death. We have already referred to the reasons given by the learned Sessions Judge for imposing the sentence of imprisonment for life as also the reasons given by the High Court for enhancing the sentence to one of death. The High Court has properly taken into account the various relevant circumstances, which have number been either adverted to by the Trial Court or properly appreciated. On the facts, it is established that the appellant suddenly, without any warning, attacked the deceased, who was unarmed and defenseless and caused a very fatal injury on the chest. From the nature of the injuries described in the postmortem certificate, it is also clear that the blow must have been inflicted by the appellant with companysiderable force.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1533 of 1971. Appeal by special leave from the judgment dated September 18, 1971 of the S.D.O. Arbitrator, Muzaffarnagar in Election Petition No. 140 of 1970. AND Civil Appeals Nos. 1797 and 1798 of 1971. , Appeals by special leave from the judgments dated September 18, 1971 of the District Magistrate Registrar, Co-operative Societies, Saharanpur in Appeals Nos. 6 and 8 of 1971 under S. 98 i U.P. Co-Societies Act. AND Special Leave Petition Civil No. 3254 of 1971 From the judgment dated September 16, 1971 of the Registrar, Co-operative Societies District Magistrate Saharanpur in Appeal No. 5 of 1971 under section 98 i h Co-operative Societies Act. P. Goyal and V. C. Parashar, for the appellants in As. Nos. 1533 and 1797 of 1971 and the petitioners in L.P. No. 3268 of 1971 K. Garg, S.C. Agrawal and R. K. Jain, for the appellants , in C.A. No. 1798 of 1971 and the Petitioners in S.L.P. No. 3254 of 1971 B. Agarwal and P. P. Juneja, for respondents Nos. 7, 8 and 1 to 13 in C.A. 1533 of 1971 P. Rana, for respondents Nos. 7 and 12 in C.A. No. 1797 of 1972 and respondent No. 7 in C.A. No. 1798 of 1971 . C. Setalvad, R. K. Garg, S. C. Agarwal and R. K. Jain, for the intervener. The Judgment of the Court was delivered by Ray, J. These three appeals are by special leave. Civil Appeal No. 1533 N of 1971 is by special leave against the judgment dated 18 September, 1971 of the Arbitrator setting aside the election of the Management Committee of the Cooperative Cane Development Union, Shamli in an election petition filed under rule 229 2 of the Co-operative Societies Rules, 1967 framed under the Uttar Pradesh Cooperative Societies Act, 1965. Civil Appeal No. 1797 of 1971 is by special leave against the order of the District Magistrate and Registrar, Co-operative Societies Sharanpur dismissing an appeal filed under section 98 i h of the P. Cooperative Societies Act, 1965 against an order of the Arbitrator under section 70 and 71 of the U.P. Co-operative Societies Act. 1965 setting aside the election of the Sahkari Ganna Vikas Samiti Ltd., Iqbalpur, District Saharanpur. Civil Appeal No. 1798 of 1971 is against the order and judgment dated 16 September, 1971 of the District Magistrate, Saharanpur dismissing an appeal under section 98 i h of the U.P. Co-operative Societies Act, 1965 against the order of the Arbitrator under sections 70 and 71 of the U.P. Co-operative Societies Act, 1965 setting aside the election of ,the Sahkari Ganna Vikas Samiti Ltd., Lhaksar, District Saharanpur. Special Leave Petition Civil No. 3254 of 1971 is for leave to appeal against the order of the Registrar, Co-operative Societies in appeal under section 98 i h against the order of the Arbitrator under sections 70 and 71 of the U.P. Co-operative Societies Act, 1965 setting aside the election of Sahkari Ganna Vikas Samiti, Sarsawa. Special Leave Petition Civil No. 3268 of 1971 is for leave to appeal against the order of the District Authority, Bulandsbahr setting aside the election of the Committee of Management of the Co-operative Cane Development Union Ltd. on an application under rule 229 of the U.P. Co-operative Societies Rules, 1968. These matters raise a companymon question. These Co-operative Societies held their annual general meeting under the provisions of section 32 of the Uttar Pradesh Co-operative Societies Act, 1965 hereinafter called the Act . At the general meetings the members of the Committee of Management of the Society were elected by members of the Society. The, Registrar of the U.P. Co-operative Societies issued a circular dated 5 November, 1969 interpreting rule 409 of the P. Co-operative Societies Rules, 1968 hereinafter called the Rules and laid down the principle that all the members of the general body of the Co-operative Society would exercise their right of vote in filling all the seats of elected Directors. The question in the present appeals is whether the Registrar had power to issue the circular interpreting rule 409 and secondly whether that interpretation is companyrect in terms of the Act and the Rules. The Act deals with Co-operative Societies and inter alia their members and their Committee of Management. The relevant sections for the purpose of present appeals and special leave petitions are sections 20, 29 and 32 of the Act. Section 20 of the Act speaks of vote of members. Under that section, a member of a Co-operative Society shall numberwithstanding the quantum of his interest in the capital of the Society have one vote in the affairs or the Society. There are four provisos to section 20. Proviso a deals with numberinal or associate members who have numberright of vote. Proviso b deals with a companyoperative society, the State Warehousing Corporation or a body companyporate being a member of such society in which case each delegate of such company operative society, State Warehousing Corporation or body companyporate shall have one vote. Proviso c deals with the State Government or the Central Government being a member of such society in which case a numberinee of the State Government or the Central Government shall have one vote. Proviso d deals with a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote. Section 29 of the Act deals with the Committee of Management. The management of every companyoperative society shall vest in a companymittee of management. The term of the election members of the companymittee of management shall be such as may be provided in the rules and the bye-laws of the society. After the expiry of the term the companyoperative society shall at the annual general meeting elect members for the companymittee of management as provided in section 32 i b of the Act. If a society fails to elect members for the companymittee of management the Registrar shall call upon the society by order in writing to elect such members within three months from the date of the companymunication of the order. If the society still fails to elect the members for the companymittee of management, the Registrar may himself numberinate such persons as under the rules and the bye-laws are qualified for being elected as members of the companymittee of management. Within six months from the date of numberination made by the Registrar, the Registrar shall call a general meeting for electing members of the companymittee of management. Section 32 of the Act speaks of annual general meeting which shall be held once in a companyoperative year. A companyoperative year means the year companymencing the first day of July and ending on the 30th June of next following. One of the purposes of the annual general meeting is election of the members of the companymittee of management in accordance with the provisions of the rules and of the bye-laws of the society. Rule 409 is as follows For the purposes of election to the membership of the companymittee of management a companyoperative society may, with the previous sanction of the Registrar- a divide its membership into different groups on territorial or any other rational basis, and b also specify the number or proportion of the member of the companymittee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the companymittee or management. In order to appreciate as to how rule 409 companyes up for companysideration in the present case it is necessary to refer to facts in Civil Appeal No. 1533 N of 1971 as a typical case. The Shamli Cane Development Union Ltd., Shammli, U.P. was registered under the Co-operative Societies Act, 1912. It was deemed to be registered under the Act. The society had its bye-laws with regard to the formation of the companymittee of management and its election including the election of the Chairman and the Vice-Chairman. The bye-laws provided for a companymittee of management companysisting of 14 members. The companymittee of management elects a Chairman and a Vice- Chairman. The delegates companystituting the general body of the society are divided into 14 companystituencies. Each companystituency elects one Director. The delegates of the members of the society in a companystituency elect a member of each single member companystituency. The 14 members of the companymittee are elected on that basis whereby each delegate of each companystituency exercises one vote for electing a member of that companystituency. The Secretary of the society fixed 13 October, 1970 as the date for filing the numberination for the office of the companymittee of management. 17 October, 1970 was the date for scrutiny of numberination papers. 19 October, 1970 was the date for withdrawal of numberination papers. 28 October, 1970 was the date of poll. By a letter dated 14 October, 1970 the Registrar, Cooperative Societies directed that the election of the members of the managing companymittee shall be done by all the representatives of the area of the society and number by the representatives of the related companystituencies alone. This means that every representative -L864Sup.CT/72 shall have as many votes as the members are to be elected. In short, the Registrars interpretation of rule 409 as well as the letter stated that each delegate would vote for 14 members of the companymittee of management and thus each delegate would exercise 14 votes. The rival companytentions which fall for determination are whether the right of vote for election of a member of the companymittee of management is companyfined to the delegates of the members of that particular companystituency or whether a delegate would have the right to vote for all the companystituencies companystituting the companymittee of management. As to the power of the Registrar to interpret rule 409 it win appear that the rule does number companyfer any power on the Registrar to interpret or to express views to guide the rights of members to vote at the annual general meeting for the purposes of election of the companymittee of management. On the companytrary, under rule 409 the Co-operative Society may with the previous sanction of the Registrar i divide its membership into different groups on territorial or any other rational basis and ii also specify the number or proportion of the members of the companymittee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the companymittee of management. Therefore, under rule 409 a companyoperative society can divide its membership into different groups on territorial or any other rational basis for the purposes of election of the members of the companymittee. The rule also empowers the society to apportion the membership of the companymittee of management amongst different groups into which the membership is divided. The number or proportion of members of the companymittee of management will have to be apportioned in such a manner that the different areas or interests into which the membership of the society are divided may obtain suitable representation on the companymittee of management. The entire purpose of division of membership into different groups and specifying suitable representation of such group on the companymittee of management is to emphasise the, right of the particular group to send its representative to the companymittee. To illustrate if a society is divided into 14 separate groups on a territorial. basis and one member of the companymittee of management is allotted to each group and if delegates of one group have the right to cast 14 votes two companysequences will follow. First, the right of choosing a representative of the companystituency will be number companyfined to that companystituency but will be enlarged to outsiders in other companystituencies. Secondly, a member of the companymittee from one companystituency may be elected by a majority of votes from delegates of other companystituencies. If delegates residing outside a territorial companystituency take part at the election for member of a companymittee from territorial companystituency within which he is number a resident it will number only amount to enlarging the right of representation beyond ones territorial basis but also deny the delegates within the companystituency the right of electing their own representative. It was said on behalf of the appellants that section 20 of the Act speaks of a member of the companyoperative society having one vote in the affairs of the society with the result that each member is entitled to exercise as many votes as the members of the companymittee of management. Accent was placed on the words affairs of the society and it was said that the companystitution of the companymittee of management was one of the principal affairs of the society and therefore each member would entitled to cast as many votes as the strength of the companymittee of management. The fallacy lies in overlooking the significant words in section 20 of the Act that a member shall have one vote. It may also be numbericed that if each member exercises by way of illustration 14 votes in regard to 14 members of the companymittee each member shall be exercising 14 votes in the affairs of the society. Under rule 409 the principal matters to be kept in the forefront are these. First, the society will divide the companystituencies on territorial basis or any other rational basis. By territorial basis is meant territory where the member will reside. Residence is therefore the relative requirement of territorial basis. If any other rational basis like occupation or vocation is determined to be the basis of a companystituency the persons falling within the companystituency will satisfy that test. Secondly, the society will specify the proportion of members of the companymittee in such a manner that different areas or interests may get suitable representation. The inherent idea is that such areas or interests will obtain representation. If membership is on territorial basis, the different areas will get representation according to the interest of such territories. Again, if occupational or vocational or professional tests are created for dividing groups such interests will have to be given suitable representation Representation is therefore with reference to areas or interests. Judged by these principles the impeached circular of the Registrar suffers from the vice of giving the members the right of casting vote in companystituencies to which they do number belong. This strikes at the basic root of right of representation. This also reads as under the principle of one member one vote which is made into a rule of law in the Act. 155 E-G The words affairs of the society cannot be equated with the Constituencies to give each member a right to vote for each companystituency. That would defeat the purpose of section 20 and rule 409. The basic idea of a representative for each companystituency depends on the mandate of the respective companystituency and number of other companystituencies. That is why section 20 of the Act speaks of, one member having one vote irrespective of shareholding. It means equality of votes, of members. The companystitution of the companymittee of management is indisputably one of the affairs of the society. If each member exercises franchise with respect to the representation from his companystituency he is number in any manner prevented from having a right to partake in the affairs of the society through a member elected from the companystituency. Some reliance was placed by companynsel for the appellants on rule 105 in support of the companytention that every member would have one vote for each member of the companymittee of management. Rule 105 occurs in Chapter VII relating to meetings and speaks of matters before a companymittee being decided by a majority of votes of the members present. That rule obviously has numberreference to election but only to passing of resolution by majority at meetings. It is obvious that members of the companymittee of management will have the right to vote at all matters at the meeting and matters will be decided by a majority of votes. The impeached circular of the Registrar is illegal and unwarranted Registrar has numberpower to interpret rule 409. The Registrar has equally numberpower to express view with regard to companyduct of the election and regulate the voting rights by giving the members more than one vote. The society is to frame rules for elections. Rules require the sanction of the Registrar. The rules and the bye-laws cannot be in derogation of the statute and statutory rules. At an election of members of the companymittee of management one member will have only One vote for the companystituency to which he belongs. The result is that the elections which were held following the circular of the Registrar are bad. For these reasons the three appeals fail and are dismissed. The two special leave petitions are also dismissed.

Leave granted. This appeal by special leave arises from the judgment and order dated January 10, 1997 passed by the Bombay High Court in Civil Revision Application No.9/97. It is number in dispute that while the appeal was pending an application under Order XXIII, Rule 3, CPC was filed for recording the companypromise. The appellate Court refused to record the companypromise and on revision, it was dismissed. Thus, this appeal by special leave. The companypromise memo annexed as Annexure A at page 21 of the paper book records that We, the undersigned Shri Harshan A. Mehta, Director of H. Choksey Co. Pvt. Ltd. and MR. Jayavantraj Punamiya, Director of M s Sundeep Plastics Pvt. Ltd. do hereby appoint Shri Mohanlal S. Mehta to sell 2 galas being No.D/8 and AB/14, situate at Nandanvan Cooperative Industrial Estate Ltd. at Thane. The High Court recorded the finding that it being a companypromise companytingent upon the parties appointing Shri Mohanlal S. Mehta as a mediator, it cannot be recorded under Order XXIII, Rule 3, CPC. Shri Sitaramaih, learned senior companynsel for the appellants, companytends that once parties have agreed o refer the matter to a third party to settle their disputes, it can be enforced under Order XXIII, Rule 3, CPC. In support of his companytention, he relies upon a decision of the Allahabad High Court in Mt. Akbari Begum vs. Rahmat Husain Ors. AIR 1973 Allahabad 861 F.B He also relied upon the judgment of this Court in Katikara Chintamani Dora Ors. vs. Guntreddi Annamnaidu Ors. 1974 2 SCR 655. Having given companysideration to the companytention of the learned companynsel, we think that in the facts and circumstances of this case, he is number right. It is seen that numberdoubt the parties have settled the terms of the companypromise for reference of the matter to Mohanlal S. Mehta, and as agreed upon, he will dispose of the two galas and after adjusting the outstanding and deducting the expenses, the balance would be given in equal shares to the parties. Shri Sitaramaiah has placed before us the evidence of Shri Mehta wherein he has suggested that he is willing to sell the property. IT has been numbered by the learned District Judge that Shri Mohanlal Mehta did number take steps to sell the disputed flats. Hence it cannot be said that there is companyplete agreement. The companypromise is a companytingent companytract dependant upon action of third party, i.e., making adjustment. Thus, the very object of recording the companypromise is to ensure that the dispute reaches its finality and does number lead to further litigation. In this case, since the dispute was number finally resolved, but the companypromise was companytingent upon action by Shri Mohanlal S. Mehta, it did number receive finality in that perspective. The Allahabad High Court had to companysider the question in the companytext of reference to an arbitration for settlement of the dispute pending in the suit. In that companytext, a full Bench came to lay down the law as extracted herein When both parties make such admission simultaneously it amounts to an offer by one and acceptance by the other. Such reciprocal admissions would therefore, be a valid agreement between them. Consideration is good because there is reciprocity. The statement of the referee would then be the admission of both the parties binding upon them. No doubt admissions are number companyclusive but where there has been mutuality of this kind and they have matured into an agreement, their companyclusiveness follows from the principle of estoppel. Equally, this Court in Katikana Chintamaani Doras case had to companysider the point in the companytext of the dispute having arisen between the parties how had agreed to abide by the decision of the companyrt on the question whether a particular village numberified by the State Government is estate within the meaning of Section 3 2 d of the Madras Estate Lands At, 1908 and whether the decision was appealable once there was a companypromise.

1.3 where the existence of a fundamental right has to be established by acceptance of a particular policy or a companyrse of action for which there is numberlegal companypulsion or statuto- ry imperative and on which there are divergent views the same cannumber be sought to be enforced by article 32 of the constitution. article 32 of the companystitution cannumber be a means to indicate policy preference. 592b-c 1.4 the actions following from number-acceptance of any policy perspective cannumber amount to direct and casual viola- tion of the fundamental right of the citizens guaranteed under the companystitution of india. companyrt is number the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the companystitution. 592d 1.5 whether in particular facts and circumstances of the instant case admission to medical or dental institution by conducting examination in hindi or other regional languages would be appropriate or desirable or number is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision. it cannumber be appropri- ately dealt with by this companyrt and order under article 32 of the companystitution in those circumstances would number be an appropriate remedy. 592h 593a civil original jurisdiction writ petition civil number 428 of 1989. under article 32 of the companystitution of india . dr. l.m. singhvi n. wazir and d. bhandari for the petition- ers. rajiv dutta for the respondents. the judgment of the companyrt was delivered by sabyasachi mukharji cj. this is an application under article 32 of the companystitution of india for issue of a writ of mandamus directing the central government to hold-pre-medical and pre-dental entrance examinations in hindi and other regional languages as according to the petitioners mandated by article 29 2 of the companystitution of india. the petition is by nine petitioners. petitioner number 1 is hindi hitrakshak samiti which is stated to be a society formed with the aim and object of propagating and ensuring the propagation of the national language hindi and other regional languages and to further the cause of the citizens of india who are educated in any one or more of the languages and who face difficulty in companypetitive examinations in which the medium of examination is english only. petitioners number. 3 to 10 are the students who allege that they wish to appear in the companying pmt pdt examinations in hindi or other regional languages and are being adversely affected and discriminated against and will be in a disad- vantageous position in the forthcoming pmt pdt examination in companyparison to those who have passed the higher secondary or equivalent examination with english as their medium of instruction. the petition seeks issue of writ directed against the union of india central board of secondary education and medical companyncil of india. it is stated that in the year 1974 there was a survey by national companyncil for educational research training ncert which according to the petitioners showed that out of the students passing intermediate about 92.5 take their exami- nation in hindi and other regional languages. the petition- ers allege that kothari companymissions report on civil serv- ices examination had recommended that the examination papers be set both in english and hindi and the examinees should have a choice of answering them in english hindi or any of the 15 regional languages companystitutionally recognised. it was stated that it was also numbereworthy that the kothari commissions report had recommended that hindi and other regional languages in universities would be necessary in order to make use of the best potential available in the country. in 1986 this companyrt in the case of dr. dinesh kumar ors. v. motilal nehru medical companylege allahabad ors. 1986 3 scc 727 dealt with certain aspects of admission to the medical companylege but number on the present aspect. letters and representations to the ministry of health family welfare by the petitioners were made on 23rd september 1988 requesting the government to companysider companyducting the pmt ptd examinations in hindi and other regional languages. it is stated that a letter was issued on both december 1988 by the government of india to the effect that the joint engineering examination jee for the five i.i.ts. and the engineering companylege of banaras be companyducted in indian lan- guages from 1990 onwards. the petitioners assert that they had received numerous letters and grievances from students with hindi medium background to press for this instant petition. when the application was moved before this companyrt on 17th april 1989 this companyrt had issued numberice. we have examined the matter and have heard mr. l.m. singhvi. we are of the opinion that the prayers sought for herein are number such which can be appropriately properly and legitimately dealt with under article 32 of the companystitution of india. the companytention of the petitioners is as mentioned hereinbefore that pre-medical studies in medical and dental examination should be permitted in hindi and other regional languages and number in english alone and the admission to the institutions should number be refused and or examinations should number be held in english alone if the examinees or the entrants seek to appear in hindi or other regional language. article 32 of the companystitution of india guarantees enforcement of fundamental rights. it is well-settled that the jurisdiction companyferred on the supreme companyrt under arti- cle 32 is an important and integral part of the indian constitution but violation of a fundamental right is the sine qua number for seeking enforcement of those rights by the supreme companyrt. in order to establish the violation of a fundamental right the companyrt has to companysider the direct and inevitable companysequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced. mr singhvi companynsel for the petitioners companytends that under article 29 2 of the companystitution numbercitizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion race caste language or any of them. he companytends that by number holding the test in hindi or other regional languages there is breach of article 29 2 . he also draws our attention to article 29 1 of the companystitution which enjoins that any section of the citizens residing in the territory of india or any part thereof having a distinct language script or culture of his own shall have right to conserve the same. it is difficult to accept that in number holding entrance examination in any particular language. be it hindi or regional language amounts to denial of admis- sion on the ground of language. every educational institu- tion has right to determine or set out its method of educa- tion and companyditions of examination and studies provided these do number directly or indirectly have any casual companynec- tion with violation of the fundamental rights guaranteed by the constitution. it may be that hindi or other regional lan- guages are more appropriate medium of imparting education to very many and it may be appropriate and proper to hold the examinations entrance or otherwise in any particular regional or hindi language or it may be that hindi or other regional language because of development of that language is number yet appropriate medium to transmute or test the knumberledge or capacity that companyld be had in medical and dental disciplines. it is a matter of formulation of policy by the state or educational authorities in-charge-of any particular situation. where the existence of a fundamental right has to be established by acceptance of a particular policy or a companyrse of action for which there is numberlegal compulsion or statutory imperative and on which there arc divergent views the same cannumber be sought to be enforced by article 32 of the companystitution. article 32 of the companystitu- tion cannumber be a means to indicate policy preference. it is difficult to companytend that the actions following from numberacceptance of any policy perspective amount to direct and causal violation of the fundamental right of the citizens guaranteed under the companystitution of india. companyrt is number the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the companystitu- tion. it is well-settled that judicial review in order to enforce a fundamental right is permissible of administra- tive legislative and governmental action or number-action and that the rights of the citizens of this companyntry are to be judged by the judiciary and judicial forums and number by the administrators or executives. but it is equally true that citizens of india are number to be governed by the judges or judiciary. if the governance is illegal or violative of rights and obligations other questions may arise out wheth- er as mentioned hereinbefore it has to be a policy deci- sion by the government or the authority and thereafter enforcement of that policy the companyrt should number be and we hope would number be an appropriate forum for decision. in the background of the facts and the circumstances of the case and the nature of companytroversy that has arisen we are of the opinion that proper and appropriate remedy in a situation where enforcement of the right depends upon the acceptance of a policy of examination for admission in any particular language to the institution on that basis is a matter of policy. whether in particular facts and the cir- cumstances of this case admission to medical or dental institution by companyducting examination in hindi or other regional languages would be appro- priate or desirable or number is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision. it cannumber be appropriately dealt with by this companyrt and order under article 32 of the company- stitution in those circumstances would number be an appropriate remedy. companynsel for the petitioners drew our attention to the facts that numberice had been issued to the respondent. that is true.