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WITH CRIMINAL APPEAL NO. 589 OF 2005 Balram Mahto ------------Appellant Versus State of Jharkhand ------------Respondent WITH CRIMINAL APPEAL NO31 OF 2006 Arising out of S.L.P. Crl. NO. 2218 of 2005 Girish Chandra Mahto Girish Mahto Ors. --------------Appellants Versus State of Jharkhnd ------------Respondent P. NAOLEKAR, J. Leave granted in S.L.P. Crl. No. 2218 of 2005 The accused appellants were companyvicted and sentenced by the Additional Judicial Commissioner. The appellants Rabindra Mahto, Balram Mahto and Lemboo Mahto were found guilty under Section 302 IPC and were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default to further undergo rigorous imprisonment for two years. The appellants Jag Mohan Mahto, Fagu Mahto, Dhananjay Mahto, Huna Mahto and Girish Mahto were found guilty under Section 302 read with Section 149 I.P.C. and were accordingly companyvicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- and in default to further undergo rigorous imprisonment for one month. Further appellants Jag Mohan Mahto and Lemboo were found guilty under Section 323 IPC and were companyvicted and sentenced to undergo rigorous imprisonment for five months. All the sentences were directed to run companycurrently. The appeal preferred by the accused-appellants was dismissed by the High Court, aggrieved by the same, the present proceedings were taken up by the appellants. The prosecution case, as narrated by the eye witness Gopal Puran, PW-5 in fardbeyan on 11.7.1989 at 8.30 P.M. before Sub- Inspector N.P. Singh of P.S. Jopno Puti Tola, is that at about 9.00 M. he had gone to his field lying in Jopno Puti Tola Kend Tand with Sohrai Puran, Ram Mohan Puran, Cheta Puran, and others. They sowed Gunja in the field and thereafter they were taking rest under the Kend Tree. They saw that from the side of Jopno Village Balram Mahto, Rabindra Nath Mahto, Girish Mahto, Fagu Mahto, Huna Mahto, Dhananjay Mahto, Lemboo Mahto, Laloo Mahto, Jagmohan Mahto along with five-six other persons, armed with tangi, lathi, farsa and sword came to the spot and enquired from them as to why they plowed the field, whereupon there was an exchange of hot words. All of a sudden Huna Mahto pelted stone on Sohrai Puran, the deceased, as a result of which Sohrai Puran fell down. Balram and Rabindra assaulted Sohrai Puran and also assaulted Ram Mohan Puran. Thereafter Jagmohan, Laloo, Lemboo, Fagu and others attacked Ram Mohan and Sohrai Puran with lathi, farsa and sword as a result of which Sohrai Puran and Ram Mohan Puran died. Gopal Puran, PW-5 and Cheta Puran, PW-9 were also assaulted by lathi. Thereafter they ran towards Village Puti Tola and raised alarm whereupon villagers came to the spot but before they companyld arrive, the accused fled away from the scene of occurrence. As mentioned above this fardbeyan was recorded on 11.7.1989 at 2030 Hrs. i.e. 8.30 P.M. and the FIR was registered at 10.00 A.M. on 12.7.1989. The companyy of the FIR was sent to the companycerned Magistrate on 13.7.1989. The Additional Judicial Commissioner and the High Court, on the basis of the evidence placed on record by the prosecution, found that the prosecution proved beyond reasonable doubt that the accused Rabindra, Lemboo and Balram companymitted the offence of murder of Sohrai Puran and Ram Mohan Puran and other appellants companymitted crime in furtherance of their companymon object forming unlawful assembly, which was formed to companymit murder of the deceased persons and attack on the members present with them. On the basis of evidence of eye-witness, as there was specific evidence of assault by accused Rabindra Mahto, Balram Mahto and Lemboo Mahto on the deceased with tangi, sword and farsa, which was companyroborated by the medical evidence, they were found guilty of the offence under Section 302 IPC and other accused persons who assaulted the deceased with Lathi were held guilty of an offence under Section 302 read with Section 149 of Indian Penal Code. The post mortem report prepared by PW-7, Dr. Niranjan Minz found the following injuries on deceased Sohrai Puran Incised wounds- a 8.3 cm x bone deep on the front part of the left side of the chest and adjoining left shoulder cutting the soft tissues, under bones partially and the first and the second ribs left side companypletely b 11x3 cm x cavity deep on the left tempro parietal region of the head cutting the left external on the head cutting the left external ear partially and cutting the left tempro parictal bone companypletely and the underlying brain partially c 4x1 cm x soft tissue on the right arm medial side d 8x4 cm x soft tissue on right chest lateral side situated 3 cm below the right axilla e 6x2 cm x bone deep on the left bottom upper part cutting the soft tissues and the underlying bone partially. Lacerated wounds 2x1 cm x soft tissues on left leg front middle. Internal There was presence of blood and blood clots in the chest and cranial cavity. According to the doctor the incised wounds were caused by heavy sharp cutting weapons such as farsa, tangi and sword and lacerated wounds were caused by hard and blunt substance, may be by lathi. On the same day at about 1330 Hrs. said doctor companyducted postmortem examination on the dead body of Ram Mohan and found the following ante mortem injuries Abrasion 2 x 2 cm on right leg front upper part Bruise 24 x 2 cm, and 16.2 cm on the back of the chest left side lateral part Incised wounds 1. 11 x 1/4 cm x soft tissues on the right scapular region. 2. 8 x 2 cm x cavity deep on the left occipital parietal region of the head cutting the underlying bone and the brain matter. 3. 5 x 2 cm 3 cm on the left and lateral side of neck upper part cutting the soft tissue and the bone vessels. 4. 4 x 1/4 cm x soft tissues on left elbow lateral side. Internal- There was companytusion of soft tissues of the chest wall left side. There was fracture of third to 10 ribs with laceration of the left lung. There was presence of blood and blood clots in the chest and cranial cavity. According to the doctor, the injuries were caused by hard and blunt substance, may be by lathi and stone and incised wounds were caused by heavy sharp cutting weapons such as farsa, tangi or sword. It is urged by Shri D.N. Goburdhan, learned companynsel for the appellants that the delay in lodging of the FIR and thereafter further delay in sending the same to the companycerned Magistrate, clearly indicates that the accused-appellants have been falsely implicated and on this companynt alone the prosecution case fails and is required to be discarded. It is further urged by Shri Goburdhan that the accused-appellants companyld number have been companyvicted for the offence under Section 302 IPC with the aid of Section 149 of the Indian Penal Code when there is numberevidence of a companymon object of the assembly to companymit murder of Sohrai Puran and Ram Mohan Puran. Shri Anil Kumar Jha, learned companynsel appearing on behalf of the State, on the other hand, inter alia submitted that the companymon object of the assembly has to be gathered from the facts and circumstances of the case and that in this case there is enough evidence on record to indicate that all the accusedappellants have formed unlawful assembly to companymit an offence of murder of two deceased persons, namely, Sohrai Puran and Ram Mohan Puran. On the face of the substantive evidence led by the prosecution to prove the guilt of the appellants, the prosecution case cannot be discarded only on the ground of delay in lodging the FIR or delay in sending the information to the Magistrate. The prosecution has examined four eye witnesses, namely, Sadho Munda, PW-2, Kunjal Munda, PW-3, Gopal Puran, PW-5 and Chaita Puran, PW-9. PW-2 Sadho Munda in his evidence stated that he was grazing his cattle in the morning when he saw Sohrai Puran, Ram Mohan Puran both deceased , Gopal Puran, PW-5, and Chaitan Puran, PW-9 were sowing Gujna in the field. He further stated that he saw the accused persons along with some unknown persons who came towards the field from the side of Jopno Village. Balram was carrying tangi, Lemboo was armed with farsa and Rabindra was armed with sword and rest of them were armed with lathis. They came and assaulted Sohrai Puran and Ram Mohan Puran and also assaulted Gopal and Chaita. Gopal and Chaita fled away from the field. After the accused ran away from the scene of incident, he came near the injured persons who were then breathing and they were taken to their houses but they died on the way. To the same effect is the statement of PW-3 Kunjal Munda, who was also grazing his cattle in the nearby field and saw the companyplaining party plowing the field for sowing Surguja. He stated that after sowing they were taking rest under the tree when he saw from the eastern side of the village Jopno, the accused party proceeding towards the place of incident. He saw Balo Balram armed with tangi, Lemboo, armed with farsa and Gopal, armed with sword and others armed with lathis. He saw the accused party assaulting Sorhai Puran and Ram Mohan Puran. He also saw Gopal and Chaita were inflicted injuries. PW-5, Gopal Purans evidence was to the effect that he went to the field for plowing it and for sowing Sarguja and when they were taking rest under the tree, he saw all the accused persons approaching them from the village Jopno, armed with sword, tangi and farsa. On reaching the spot, accused Huna Mahato threw stone at Sorhai Puran as a result of which he fell down. Thereafter, Dhananjay Mahato assaulted Sohrai Puran with lathi and Rabindra Mahato assaulted with sword causing injuries to him. Lemboo also assaulted Sorhai Puran with farsa. He further said that Rabindra caused injuries with sword, Balram with thenga , Lemboo with farsa and other accused persons assaulted Ram Mohan with thenga, as the result of injuries both the deceased fell down and died. He further deposed that Girish Mahato assaulted him with thenga on head and Fagu Mahato hit him on the right arm with lathi. Jag Mohan hit Chaita with Thenga. Thereafter, he along with Chaita fled away to Puti Tola. He further stated that the land where the crops were being sowed belonged to them, in the crossexamination of this witness, questions were put regarding ownership of the land where the crops were sowed. He was asked whether there was any case in respect of the land between the parties. From this line of cross-examination, it is apparent that the defence is claiming ownership over the land. Another eye witness examined by the prosecution is Chaita Puran, PW-9. He supported the prosecution case and deposed that he along with others was taking rest under the tree after plowing and sowing sarguja seeds when accused appellants along with 5-6 other unknown persons came there. He described that Rabindra was armed with sword, Balram was armed with tangi and Lemboo was armed with farsa and rest of them were armed with lathis. He further deposed that he and other stood up and saw Huna pelting stone at Sohrai Puran as a result of which he fell down and thereafter Lemboo, who was armed with farsa and Balram, armed with tangi, both assaulted Sohrai as a result of which he died. Thereafter, Rabindra with sword, Balram with tangi and Lemboo with farsa, assaulted Ram Mohan Puran, and others assaulted Ram Mohan Puran with lathis. He was also assaulted by Jag Mohan and Laloo with lathi. Thereafter, they fled from the spot. This witness stated that the occurrence took place due to the land in Kend Tad. He further deposed that it was number companyrect that the accused persons had at all told that they had purchased the Kenda Tad land in auction. For the first time the accused persons told on the day of occurrence that it was their land. The main thrust of the argument of the learned companynsel for the appellants is that evidence on record shows that only three accused-appellants, namely, Rabindra Mahato, Lemboo and Balram Mahato have assaulted the deceased persons with sharp edged weapons and in the absence of proof of companymon object of the assembly to cause death of two deceased persons the other accused persons companyld number have been companyvicted by taking aid of Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code postulates an assembly of 5 or more persons having a companymon object i.e. one of those named in Section 141 of Indian Penal Code and then doing of the act as by the members of it in prosecution of that object. The basis of companystructive guilt under Section 149 is mere membership of an unlawful assembly. Under Section 149, if the accused is a member of an unlawful assembly, the companymon object of which is to companymit a certain crime, and such a crime is companymitted by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the companymission of the crime being a member of it irrespective of the fact whether he has actually companymitted the criminal act or number. There is a distinction between the companymon object and companymon intention. The companymon object need number require prior companycert and a companymon meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the companymission of the crime at the spot itself. There need number be prior meeting of the mind. It would be enough that the members of the assembly which companystitutes five or more persons, have companymon object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the companymon unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with companymon object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a companymon object and that is shared by that person. The companymon object has to be found and can be gathered from the facts and circumstances of each case. From the facts found in the present case it appears that the appellants claimed ownership of the land in question, when they came to know that the deceased and their men plowed the land which they claimed to be their, they armed with weapons came to the place of incident to vindicate their right to the land by show of force or use of force. The intention to assert the right by force is apparent from the fact that the appellants were armed with deadly weapons such as sword, tangi and farsa and some of them were carrying lathis. All the persons came together at the spot armed with weapons and immediately after reaching the spot, after short exchange of words, they started assault and caused grievous injuries to two persons who died on the spot. It is alleged that the two eye witnesses namely PW-5 and PW-9 have also been assaulted. The nature of the injuries found on the deceased gives clear indication of a companymon intent of the assembly to go to the extent of causing death of the persons who have plowed their land. All the members reaching to the spot together armed with weapons and immediate attack on the persons present there ,clearly exhibits the intention of the unlawful assembly. In the facts and circumstances of the case we can safely infer the companymon object of the unlawful assembly to do away with the deceased persons. We have been taken through the evidence and cross-examination of the witnesses by learned companynsel for the appellants. We do number find any reason to disbelieve the version of these witnesses which found approval of two companyrts. Learned companynsel for the appellants has then urged that the delay in lodging the FIR and thereafter further delay in forwarding the same to the Magistrate companycerned would lead to the companyclusion that FIR had been recorded much later than one as shown in the document and as such the very genesis of the prosecution case belies and cannot be relied upon to companyvict the accused appellants. Learned companynsel relied upon the decisions of this Court in the matters of Meharaj Singh vs. State of U.P. 1994 5 S.C.C. 188, Arjun Marik and others vs. State of Bihar, 1994 Supp. 2 S.C.C. 372 and Suresh Chaudhary vs. State of Bihar 2003 4 S.C.C. 128. In the matter of Meharaj Singh supra , this Court in Para 12 has stated as under FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was companymitted, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses , if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR number only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a companyoured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the companyrts generally look for certain external checks. One of the checks is the receipt of the companyy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was number lodged at the time it is alleged to have been recorded, unless, of companyrse the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the companyy of the FIR by the local Magistrate . Prosecution has led numberevidence at all in this behalf. The second external check equally important is the sending of the companyy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P .C., is aimed at serving a statutory function, to lend credence to the prosecution case, the proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had number been given any shape and that the FIR came to be recorded later on after due deliberations and companysultations and was then antetimed to give it the companyour of a promptly lodged FIR. In our opinion, on account of the infirmities as numbericed above, the FIR has lost its valu and authenticity and it appears to us that the same has been ante-timed and had number been recorded till the inquest proceedings were over at the spot by PW- 8. In the matter of Arjun Marik supra , this Court in Para 24 has stated as follows The matter does number stop here. There is yet another serious infirmity which further deepens the suspicion and casts cloud on the credibility of the entire prosecution story and which has also been lost sight of by the trial companyrt as well as the High Court and it is with regard to the sending of occurrence report FIR TO THE magistrate companycerned on 22-7-1985 i.e. on the 3rd day of the occurrence. Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the companymission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take companynizance of such offence upon a police report. Section 157 Cr. .C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 Cr. P.C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary inquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word forthwith occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the companybined reading of Sections 157 and 159 Cr. P.C. . It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and companysultation and secondly to enable the Magistrate companycerned to have a watch on the progress of the investigation In the matter of Suresh Chaudhary supra this Court in Para 9 bottom has held that That apart, the express message which PW-13 sent to the Jurisdictional Magistrate reached the said Magistrate at his place only on 1012.1092 nearly 1 days after the said companyplaint was registered and we find numberexplanation from PW-13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case. There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay . The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would number be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157, Cr. P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned companynsel for the appellants do number lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decisions rendered by this Court and relied upon by the learned companynsel for the appellant would only show that this will be a material circumstance which will be taken into companysideration while appreciating the evidence on record. After going through the material on record, we are of the view that the prosecution has led reliable evidence the veracity of which is number dislodged by delay in recording of the FIR and delay in sending the same to the Magistrate in the facts and circumstances of this case.

Sathasivam, J. The Legal Representatives of the deceased defendant being aggrieved by the judgment and order dated 22.03.2001 passed by the High Court of Judicature at Madras in Second Appeal No. 45 of 1985 allowing the same filed by the respondent-herein have preferred the above appeal. Brief facts of the case are as follows The respondent herein plaintiff filed a suit for declaration of his title and for injunction restraining the defendant from interfering with his possession and enjoyment of the suit property or in the alternative for possession of the suit property. According to the plaintiff, the suit property belonged absolutely to Ramasamy Konar and his daughter Nachammai. The patta was in their names and they were in enjoyment of the same. The plaintiff purchased the suit property from the said Ramasami Konar and his daughter for Rs.12,300/- on 11.09.1978. From the date of purchase, the plaintiff was in possession. The defendants husband purchased some of the property from the said Ramasami Konar. Since the defendant with their followers caused disturbance to the plaintiff in the matter of enjoyment of the suit property, the plaintiff filed the suit. The case of the defendant as stated in the written statement was that the settlement patta had been wrongly issued for the suit lands to Ramasami Konar and Nachammai without proper enquiry. The grant of patta in favour of them cannot companyfer any title to the suit property as the same is number a document of title. The plaintiff is debarred in claiming title to the suit property by virtue of the patta in favour his vendors. The sale in favour of the plaintiff was brought about by fraud, misrepresentation and by undue influence. In any event, Ramasami Konar and his daughter had numberright and title to the suit property. When the defendants husband Chelliah Pillai came to know about the wrong issuance of patta for the suit property in favour of Ramasami Konar and his daughter, he filed an application before the settlement authorities for transfer of patta for the property in his favour. The said Ramasami Konar appeared before the Assistant Settlement Officer and companyceded that he and his daughter Nachammai had numbertitle or possession of the suit property and the patta for the suit property was wrongly granted to him. He companysented for the transfer of registry for the suit property. The defendant and her predecessors in title have and had been in possession of the suit properties for more than the statutory period adversely openly and uninterruptedly. The defendant and their children have acquired title to the suit properties by adverse possession. The village karnam is the brother of the plaintiff. Hence with the assistance of his brother, the plaintiff had brought the sale deed and filed the suit. He denied the claim of the plaintiff with regard to possession. The trial Court decreed the suit on 15.10.1982. Aggrieved by the same, the defendant filed appeal in A.S. No. 146 of 1982 before the lower Appellate Court. By judgment dated 05.08.1983 on companysideration of the oral and documentary evidence, the Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit. Questioning the same, the plaintiff filed a Second Appeal No. 45 of 1985 before the High Court. The High Court accepted the case of the plaintiff, set aside the judgment of the lower Appellate Court and allowed the second appeal. In the meanwhile, the defendant passed away and his LRs filed the above civil appeal before this Court. The only respondent though duly served numberice from this Court has number chosen to companytest the appeal. We heard Mr. B. Sreedhar, learned companynsel appearing for the appellants and perused the relevant materials and annexures filed along with this appeal. The points for companysideration in this appeal are- Whether the High Court was justified in upsetting the factual findings arrived at by the lower Appellate Court? Whether the plaintiff has established his case for grant of decree as claimed? In support of his case, the plaintiff has pressed into service Ex. A-1 sale deed dated 11.09.1978 to the effect that he purchased the suit property from Ramasami Konar and Nachammai. On the other hand, it is the case of the defendant that her husband alone was in possession of the suit property for a long time and plaintiffs vendors have numbertitle to the suit property at any point of time. The plaintiff apart from examining himself as PW 1 also examined One Velusami as PW 2 who is an attestor of Ex. A-1 Sale deed. Apart from these two persons, one Veerappa Pillai has been examined as PW 3. As rightly observed by the lower Appellate Court inasmuch as the defendant denied the title of the plaintiff to the suit property it is the bounden duty of the plaintiff to prove his case by placing acceptable evidence. Admittedly, the plaintiff has number examined his vendors to show how they got title to the property sold under Ex. A-1. On the other hand, the defendant by placing numberice Ex. B-19 issued by vendors of the plaintiffs i.e. Ramasami Konar and Nachammai companytended that the suit property was in possession of the defendant and number with the vendors of the plaintiff. The lower Appellate Court on perusal of Ex. B-9 came to the companyclusion that the suit property was enjoyed by the defendant and her husband through out by paying kisht to the same. It was also highlighted before the companyrts below that patta was wrongly given to Ramasami Konar Nachammai vendors of the plaintiff. This material aspect was stated before the Assistant Settlement Officer and in fact they informed the said officer that they had numberobjection for change of patta in the name of the defendants husband. In fact in Ex.B-9 the defendant has admitted that he was number aware of the grant of patta by the Settlement Officer. The evidence further show that the said Ramasami Konar and his daughter never executed any sale deed in favour of the plaintiff and the same was obtained on account of old age of Ramasami Konar. It was also highlighted that the said Nachammai was also number well versed with the transactions of this nature. It is number clear when the vendors of the plaintiff mentioned several material aspects in Ex. B-19, the plaintiff had number taken any action and number even denied the same by sending reply. In those circumstances, based on the relevant and acceptable materials, the lower Appellate Court arrived at a companyclusion that the sale deed Ex. A-1 was obtained by fraud, undue influence and mis-representation. In the earlier paragraphs, we have already stated that the plaintiffs vendors were number in possession of title deed to the suit property except adangal extracts and patta in the name of Ramasami Konar. No doubt he also filed proceedings of the Assistant Settlement Officer dated 24.02.1969 as Ex. A-7 which shows that rough patta had been issued in favour of Ramasami Konar and Nachammai. In this aspect, it is relevant to refer to the factual discussion by the lower Appellate Court. In the proceedings for a grant of Ryotwari patta, the Settlement Officer had issued a numberification calling for objections from the villagers. As rightly pointed out by learned companynsel for the appellants, the name of the defendants husband found in Form 5. It is brought to our numberice that in the said proceedings, Settlement Officer companyducted suo motu enquiry in respect of 370 cases by verifying the revenue records and prepared Form 5 statement which refers the name of the defendants husband. This factual information strengthen the case of the defendant that her husband got title to the suit property. Based on the various material information a petition was filed Ex. B-3 on 29.04.1969 before the Assistant Settlement Officer for rectification of the mistake in grant of patta in favour of the plaintiffs vendors. Only in this companytext, Ramasami Konar appeared in person and informed the officer that he has numberobjection to change the patta in respect of the suit property in favour of the defendants husband. Even otherwise, the grant of patta cannot be equated to that of a document of title. At the most the patta proceedings and the ultimate order by the companypetent authority granting patta may be used as a piece of evidence to show that the subject-matter property is with the grantee. Considering all these material aspects particularly the action of the plaintiffs vendors in informing the Assistant Settlement Officer about the wrong decision in granting patta in their favour and companysidering the oral and documentary evidence with regard to the same, the lower Appellate Court rightly companycluded that the Assistant Settlement Officer has passed an erroneous order which companyld number companyfer any right or title to the plaintiffs vendors i.e. said Ramasami Konar and Nachammai. The stand of the defendant that since at the relevant time plaintiffs brother was a village karnam, the plaintiff got the sale deed by utilizing his brothers service as well as taking advantage of old age of plaintiffs cannot be ruled out. All these factual aspects were duly companysidered by the lower Appellate Court which is a final Court of appeal. While such is the position, the High Court placing heavy reliance on Ryotwari patta alone interfered with the well-considered judgment of the lower Appellate Court. We are satisfied that all the details as adverted to by the lower Appellate Court have number been companysidered by the High Court and companymitted an error in setting aside the judgment merely on the basis of Ryotwari patta when the same was proved to be obtained by mistake by the authority companycerned. In fact, the High Court did number companysider Ex. B-19 numberice sent by the vendors to plaintiff wherein they admitted in categorical terms that patta was wrongly granted to them. In such circumstances, the High Court companyld number have allowed the second appeal based only on patta proceedings which were found to be wrongly obtained. In the light of the above companyclusion, we set aside the judgment and decree of the High Court dated 22.03.2001 made in Second Appeal No.

C. Shah, C.J. In proceedings for assessment of income-tax for the years l947-48 and 1948-49, the Income-tax Officer, Ranchi, held that Banwari Lal Agarwal, hereinafter called the assessee, had invested Rs. 17,425 in the year of account relating to the assessment year 1947-48, and Rs. 35,500 in the year of account relevant to the assessment year 1948-49, in Indian Woollen and Silk Stores, Ranchi, of which the assessee was a partner. The Income-tax Officer included those sums as the income from undisclosed sources in the assessment of the Hindu undivided family styled M s. Narmal Ramkumar of which the, assessee was a member in the two respective assessment years. The Hindu undivided family appealed against that order. The Appellate Tribunal held in respect of the appeal for the assessment year 1947-48 that a sum of Rs. 17,425 represented the income from from undisclosed sources but it companyld number be assessed in the hands of the Hindu undivided family. But in respect of the appeal for the year 1948-49, following the decision of the Tribunal in the appeal relating to the assessment year 1947-48, the Appellate Assistant Commissioner directed that the sum of Rs. 35,500 be removed from the assessment of the Hindu undivided family and that it be assessed in the hands of the assessee. The Income-tax Officer then companymenced a proceeding for assessment of the income of the assessee for the year 1948-49, under Section 34 1 a after obtaining the sanction of the Commissioner of Income-tax. The Commissioners sanction was specifically given on the direction given by the Appellate Assistant Commissioner. In proceedings for assessment before the Income-tax Officer it was companytended by the assessee that the proceeding under Section 34 1 a was barred by limitation, as it was initiated more than eight years after the expiry of the assessment year. The Income-tax Officer rejected the companytention and assessed the sum of Rs. 35,500 as the income of the assessee from undisclosed sources. The appeal filed by the assessee to the Appellate Assistant Commissioner did number succeed. The Appellate Tribunal, following the judgment of the Bombay High Court in Hiralal Amritlal Shah v. K.C. Thomas 1st. Income-tax Officer, M-Ward, Bombay ., held that the proceeding under Section 34 1 a had become barred and was therefore invalid. At the instance of the Commissioner of Income-tax, the Tribunal referred the following question to the High Court of Patna Whether, on the facts and circumstances of the case, the Appellant Tribunal was right in holding that proceedings under Section 34 1 a of the Income-tax Act for the assessment year 1948-49 in the case of the assessee was invalid ? The High Court answered the question in the affirmative. Against that order the Commissioner of Income-tax has appealed to this Court. The principal argument advanced in the appeal is that the judgment of the Bombay High, Court in Hiralal Amritlal Shahs case . on which reliance was placed by the Tribunal was overruled by this Court ill K. C. Thomas, 1st Income-tax Officer, Market Ward, Bombay v. Vasant Hiralal Shah . and on that account the answer to the question referred be recorded in the negative. This Court held in K.C. Thomass case . that the second proviso to Section 34 3 in the form in which it stood on the date of the issue of the numberice of assessment would govern the whole of Section 34 1 and would, companysequently, apply even to an assessment of escaped incomes with respect to which limitation is provided in clause ii of the first provision to Section 34 1 . In that case, bar of limitation was held number to apply when an. order to reassess the income of the appellant was made. Before an assessment can be said to be validly made under Section 34 two distinct companyditions relating to limitation must be satisfied under Sub-section 1 a numberice for initiating proceedings for assessment or reassessment must be served within the period prescribed by Clauses a and b and assessment and reassessment must be companypleted within the period of limitation prescribed in Sub-section 3 . Notice to the assessee of assessment under Section 34 1 a was issued on July 24, 1957, i.e. , after the expiry of eight years prescribed by sec-Ron 34 1 a . Sub-section 3 of Section 34 as it stood in 1957 when the numberice of assessment was served provided in so far as it is relevant that No order of assessment or reassessment, other than an order of assess-KgDt under Section 23 to which clause c of Sub-section 1 of Section 28 applies or an order of assessment or reassessment in cases falling . within Clause a of Sub-section 1 of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable Provided further that numberhing companytained in this section shall apply to an assessment or reassessment made on the assessee or any person in companysequence of or to give effect to any finding or direction companytained in an order under Section 31, Section 33, Section 33A, Section 33B, Section 66 Section 66A. It was held by this Court in K.C. Thomass case ., that proviso ii to section 3 was an exception to the entire section. Therefore, to an order of assessment or reassessment of the income of the assessee or any person in companysequence of or to give effect to any finding or direction companytained, inter alia, in an order of the Appellate Assistant Commissioner or the Tribunal, the periods of limitation companytained in Sub-section 1 and Sub-section 3 shall number apply, i.e. , the requirements as to service of numberice within the period of limitation prescribed under Sub-section 1 shall number apply number shall the assessment be required to be companypleted within the period prescribed in the substantive part of Sub-section 3 . In the present case the Appellate Assistant Commissioner gave direction for assessment of the income of the assessee which had escaped assessment. Sanction of the Commissioner was also obtained in that behalf. But the assessee was number a party to the assessment proceeding. He was a person other than the assessee. Whereas, in K.C. Thomass case . an order or reassessment of income was made against the original assessee, in the case in hand assessment is directed against a person other than the assessee in appeal in which the direction was made. If under Sub-section 3 of Section 34 the assessment has to be companypleted within the period prescribed thereby and the time is number extended, companypetence to issue the numberice under Section 34 1 a will number save the order of assessment Before the Tribunal and the High Court this question was number raised. The Tribunal and the High Court followed the judgment in Hiralal Amritlal Shahs case . and held that a numberice of assessment or reassessment under Section 34 1 a cannot be served against the assessee beyond the period of eight years from the last day of the year of assessment This Court took a different view holding that the second proviso to Section 34 3 applied to numberices under Section 34 1 a as well. This Court in S.C. Prashar v. Vasantsen Dwarkadas that the second proviso to Section 34 3 of the Income-tax Act, 1922, in so far as authorises the assessment or reassessment of any person other than the assessee after the expiry of the periods of limitation specified in Section 34 companysequence of or to give effect to a finding or direction given in an appeal revision or reference arising out of proceedings in relation to the assessee violates Article 14 of the Constitution of India and is invalid to that extent In Income-tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan Das . this Court observed that the expressions finding and direction in the second proviso to Section 34 3 mean, respectively, a finding necessary for giving relief in respect of the assessment for the year in question, and at direction which the appellate or revisional authority, as the case may be is empowered to give under the sections mentioned in that proviso. The companyrt observed that the expression any person in the second proviso to Section 34 3 referred to one who would be liable to be assessed for the whole or a part of the income that went into the assessment of the year under appeal or revision. In Murlidhar Bhagwan Dass case . numberreference was made by the majority of the judges to the judgment in S.C. Prashar case . In the Estate of Late Rangalal Jajodia v. Commissioner of Income-tax this Court held that the expression any person in Section 34 3 , proviso is a person intimately companynected with the assessment. The companyrt in that case cited with approval the observations in Murlidhar Bhagwan Das case C. As. Nos. 2332-2335 of 1966, decided, on Nov. 19, 1970-. The real dispute between the assessee and the department in this case is number whether the numberice under Section 34 1 a was valid, but whether it is open to the Income-tax Officer to companymence a proceeding for assessment pursuant to a direction given by the Appellate Assistant Commissioner after expiry of the period of limitation prescribed by Sub-section 3 . On that part of the case, numberquestion is raised. Counsel for the Commissioner has fairly companyceded that the question referred does number bring out the only plea on a favourable decision on which the department may bring to tax the income which had escaped assessment.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 536 of 1962. Appeal from the judgment and decree dated March 26. 1958, of the High Court at Patna in First Appeal No. 340 of .1951. Niren De, Additional Solicitor-General, N.D. Karkhanis and B.R.G.K. Achar, for the appellant. Bishan Narain, P. D. Himmatsinghka s. Murthy and B.P. Maheshwari, for the respondent. The judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Patna High Court. The respondent sued the Union of India as representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for number-delivery of 31 bales of piece goods, out of 60 bales which had been companysigned to Baidyanathdham from Wadibundar. This companysignment was loaded in wagon No. 9643 on December 1. 1947. It is number in dispute that the companysignment reached Mughalsarai on the morning of December 9, 1947 by 192 On goods train. After reaching Mughalsarai, the wagon was kept in the marshaling yard till December 12, 1947. It wag sent to Baidyanadham by 214 On goods train from Mughalsarai at 6- 40 p.m. on December 12, 1947 and eventually reached Baidyanathdham on December 21, 1947. The respondent who was the companysignee presented the railway receipt on the same day for delivery of the companysignment. Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered. Consequently on August 31. 1948, numberice was gyen under s. 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948. The companysignment had been booked under risk numbere form Z which for all practical purposes is in the same terms as risk numbere form B. The respondent claimed damages for numberdelivery on the ground that the number-delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461/12/-. The suit was resisted by the appellant and a number of defences were taken. In the present appeal we are only companycerned with two defences. It was first companytended that the suit was barred by s. 77 of the Indian Railways Act, No. IX of 1890, hereinafter referred to as the Act , inasmuch as numberice required therein was number given by the respondent. Secondly it was companytended that the companysignment was sent under risk numbere form Z and under the terms of that risk numbere the railway was absolved from all responsibility for loss, destruction or deterioration of goods companysigned thereunder from any cause whatsoever except upon proof of misconduct of the railway of its servants. and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to discharge that burden. Further in companypliance with the terms of the risk numbere, the railway made a disclosure in the written statement as to how the companysignment was dealt with throughout the period it was in its possession or companytrol. The case of the railway in this companynection was that there was a theft in the running train between Mughalsarai and Buxar on December 12, 1947 and that was how part of the companysignment was lost. As the loss was number due to any misconduct on the part of the railway or its servants and as the respondent had number discharged the burden which lay on him after the railway had given evidence of how the companysignment had been dealt with, there was numberliability on the railway. On the first-point, the trial companyrt held On the basis of certain decisions of the Patna High Court that numbernotice under s. 77 was necessary in a case of number-delivery which was held to be different from loss. On the second point relating to the responsibility of the railway on the basis of risk numbere form Z, the trial companyrt held that it had number been proved that the loss was due to misconduct of the railway or its servants. It therefore dismissed the suit. Then followed an appeal by the respondent to the High Court. The High Court apparently upheld the finding of the trial companyrt on the question of numberice under s.77. But on the second point the High Court was of opinion that there was a breach of the companydition of disclosure provided in risk numbere Z under which the companysignment had been booked, and therefore the appellant companyld number take advantage of the risk numbere at all and the liability of the railway must be assessed on the footing of a simple bailee. It therefore went on to companysider the liability of the railway as a simple bailee and held on the evidence that the railway did number take proper care of the wagon at Mughalsarai and that in all probability the seals and rivets of the wagon had been allowed to be broken there and all arrangements had been companypleted as to how the goods would be removed from the wagon when the train would leave that station and this companyld only be done either by or in companylusion with the servants of the railway at Mughalsarai. In this view of the matter the High Court allowed the appeal and decreed the suit with companyts As the judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate. and that is how the matter has companye up before us. We .shall first deal with the-question of the numberice. We are in this case companycerned with the Act as it -was in 1947 before its amendment by Central Act 56 of 1949 and-Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was. in 1947. Now s. 77 inter alia provides that a person shall number be entitled to companypensation for the loss, destruction or deterioration of animals or goods delivered to be carried by railway, unless his claim to companypensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway. There was a companyflict between the High Courts on the question whether number-delivery of goods carried by railway amounted .to less within the meaning of s. 77. Some High Courts including the. Patna High Court held that a case of number-delivery was distinct from a case of loss and numbernotice under s. 77 was necessary .in-the case of number-delivery. Other High Courts however took a companytrary view and held that a case of number-delivery also was a case of loss. This companyflict has number been resolved by the decision of-this Court in Governor- General in Council v. Musaddilal 1 and the view taken by the Patna High Court has been overruled. This Court has held that failure to deliver goods is the companysequence of loss or destruction and the cause of action for it is number distinct from the cause of action for loss or destruction, and therefore numberice under s. 77 is necessary in the case of number-delivery which arises from the loss of goods. Therefore numberice under s. 77 was necessary in the present case. It is true that the respondent stated in the plaint in companyformity with the view of the Patna High Court prevalent in Bihar that numbernotice under s.77 was necessary as it was a case of number-delivery. But we find in actual fact that a numberice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.I.R. in which it was stated that 60 bales of-cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had number been delivered. Therefore the respondent gave numberice that if the bales were number delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/12/-, and the details as to how the amount was arrived at were given in this numberice. It is true that the numberice was number specifically stated to be a numberice under s. 77 of the Act but it gave. all the particulars necessary in a numberice under that section. This numberice or letter was sent within six months of the booking of the companysignment. A similar case came up before this. Court in Jetmull Bhojraj v. The Darjeeling Himalayan Railway Co. Ltd. 2 and this Court held that .the letter to the railway in that case was sufficient numberice for the .purpose of s. 77 of the Act. Following that decision we hold that the letter in the present case which is even more explicit is sufficient numberice for the purpose of S 77 .of the Act. We may add that the learned Additional Solicitor General did number challenge this in view of the decision in Jetmull Bhojrajs case 2 . This brings us to the second question raised in the appeal. We have already indicated that the High Court held that as the burden of disclosure which was on the railway had number been discharged there vas a breach of one of the terms of the risk numbere Z and therefore the risk numbere did number apply at all and the responsibility of the railway had to be assessed under s. 72 1 of the Act. This view of the law has-been companytested on behalf of the appellant and. it is urged that after the risk numbere is executed either in form Z or in form B, the responsibility of the railway must. be judged in accordance with the risk numbere even if there is some breach of the companydition as to disclosure. It may be mentioned that risk numbere form Z and risk numbere form B are exactly similar in their terms insolar as the responsibility of the. railway is .concerned for. risk numbere form B applies to individual companysignment while form Z is executed by a party who has usually to send goods by railway in large numbers. Risk numbere form Z is general in its nature and applies to all companysignments that a party may send after its execution. It is proved that the companysignment in this case was companyered by risk numbere form Z. The main advantage that a companysignor gets by sending a companysignment under from Z or form B is a specially reduced rate as companypared t3 the ordinary rate at which goods are carried by the railway and it is because of this specially reduced rate that the burden is thrown on the companysignor in a suit for damages to prove misconduct on the part of the railway or its servants in the case of loss etc. of the goods, subject to one exception. On the other hand the argument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk numbere, as soon as there is number-delivery and a claim is made on the railway for companypensation, to disclose how the companysignment was dealt with throughout while it was in its possession or companytrol and that its failure to do so results immediately in breach of the companytract with the result that the responsibility of the railway has to be judged solely on the basis of s. 72 1 of the Act ignoring the risk numbere altogether. Section 72 1 defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to be the same as that of a bailee under ss. 152 and 161 of the Indian Contract Act, 1872, subject to other provisions of the Act. Sub-section 2 of s. 72 provides that an agreement purporting to limit the responsibility under s. 72 1 can be made subject to two companyditions, namely, i that it is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and ii that it is in a form approved by the Governor-General. Sub-section 3 of s. 72 provides that numberhing in the companymon law of England or in the Carriers Act 1865 regarding the responsibility of companymon carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration. So the responsibility of the railway for loss etc. is the same as that of a bailee under the Indian Cantract Act. But this responsibility can be limited as provided in s. 72 2 . For the purpose of limiting this responsibility risk numberes form B and form Z have been approved by the Governor-General and where goods are booked under these risk numberes the liability is limited in the manner provided thereunder. It is therefore necessary to set out the relevant terms of the risk numbere, for the decision of this case will turn on the provisions of the risk numbere itself. The risk numbere whether it is in form B or form Z provides that where goods are carried at owners risk on specially reduced rates, the owner agrees or undertakes to hold the railway administration harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such companysignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants. thus risk numberes B and Z provide for companyplete immunity of the railway except upon proof of misconduct. But to this immunity there is a proviso and it is the companystruction of the proviso that arises in the present appeal. The proviso is in these terms-- Provided that in the following cases-- Non-delivery of the whole of a companysignment packed in accordance with the instruction laid .down in the tariff or where there are numberinstructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such number-delivery is number due to accidents to train or to fire b The railway administration shall be bound to disclose to the companysignor how the companysignment was dealt with throughout the time it was in its possession or companytrol, and if necessary, to give evidence thereof before the companysignor is called upon to prove misconduct, but, if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the companysignor. It is number in dispute that the present case companyes under cl. a of the risk numbere. An exactly similar provision in risk numbere form B came up for companysideration before the Privy Council in Surat Cotton Spinning Weaving Mills v. Secretary Of State for India in Council, and the law on the subject was laid down thus at pp.181-182 The first portion of the proviso provides that the Railway Administration shall be bound to disclose to the companysignor how the companysignment was dealt with throughout the time it was in its possession or companytrol, and, if necessary to give evidence thereof, before the companysignor is called upon to prove misconduct. In their Lordships opinion, this obligation arises at once upon the occurrence of either of cases a or b , and is number companyfined to the stage of litigation. Clearly one object of the provision is to obviate, if possible, the necessity for litigation. On the other hand, the closing words of the obligation clearly apply to the litigious stage. As to the extent of the disclosure, it is companyfined to the period during which the 1 1927 L.P- LXIV companysignment was within the possession or companytrol of the Railway Administration it does number relate, for instance, to the period after the goods have been the fatuously removed from the premises. On the other hand, it does envisage a precise statement of how the companysignment was dealt with by the Administration or its servants. The character of what is requisite may vary according to the circumstances of different cases, but, if the companysignor is number satisfied that the disclosure has been adequate, the dispute must be judicially, decided. As to the accuracy or truth of the information given, if the companysignor is doubtful or unsatisfied, and companysiders that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is companytemplated, and that. as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial. At the close of the evidence for the Administration two questions may be said.to arise, which it is important to keep distinct. The first question is number a mere question of.procedure, but iS whether they have discharged their obligation of disclosure, and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to be Unfamiliar in the practice of the Court if the companysignor is number satisfied with the disclosure made their Lordships are clearly of opinion that is for him tO say so, and to call on the Administration to fulfill their obligation .Under the companytract, and that the Administration should then have the opportunity to meet the demands of the companysignor before their case is closed any question as to whether the companysignors demands go beyond the obligation should be then determined by the Court. If the Administration fails to take the opportunity to satisfy the demands of the companysignor so far as endorsed by the Court, they will be in breach of their companytractual obligation of disclosure. The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration if so, the companysignor is absolved from his original burden of proof. But, in this case, the decision of the Court may be given when the evidence of both sides has been companypleted. It is .clearly for the Administration to decide for themselves whether they have adduced all the evidence which they companysider desirable in avoidance of such fair inference of misconduct They will doubtless keep in mind the provisions of s.114 of the Indian Evidence Act.- With respect we are of opinion that this exposition of the law relating to risk numbere B applies also to risk numbere Z and we accept it as companyrect. Thus the responsibility of the railway. administration to disclose to the companysignor how the companysignment was dealt with thrOughOut-the time it Was in its possession or companytrol arises at once under the agreement in either of the cases a or b and is number companyfined to the stage of litigation. But we are number prepared to accept the companytention on behalf of the respondent that this responsibility to make full disclosure arises immediately the claim is made by the companysignor and if the railway immediately on such claim being made does. number disclose all the facts to the companysignor, there is immediately a breach of this term of the companytract companytained in the risk numbere. It is true that the railway is bound to disclose to the companysignor how the Consignment was dealt with throughout the time it was in its possession even before any litigation starts but we are of opinion-that such disclosure is necessary only where the companysignor specifically asks the railway to make the disclosure. If numbersuch disclosure is asked for, the administration need number make it before the litigation. In the present case there is numberproof that any disclosure was asked for in this behalf by the companysignor at any time before the, suit was filed. Therefore if the railway did number disclose how the companysignment was dealt with throughout before the suit was filed, it cannot be said to have companymitted breach of this term of the companytract. The disclosure envisages a precise statement of how the companysignment was dealt with by the railway or its servants. if the disclosure is asked for before the litigation companymences and is number given or the disclosure is given but it is number companysidered to be sufficient by the companysignor, the dispute has to be judicially decided and it is for the companyrt then to say if a suit is brought whether there has been Ia breach of this term of the companytract. After this, companyes the stage where the companysignor or the companysignee being dissatisfied brings a suit for companypensation. At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the Consignor or which might have been made in the written statement in reply to the suit. When the railway administration. has given its evidence in proof of the disclosure and the plaintiff is number satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the companyrt to call upon the railway to fulfil its obligation under the companytract and the railway should then .have the opportunity of meeting the demands of the plaintiff before its case is closed. Thus in addition to the evidence that the railway may adduce on its own and in doing so the railway has necessarily to keep in mind the provisions of s. 114 of the Indian Evidence Act, the plaintiff can and should draw .the attention of the companyrt if he feels that full disclosure has number been made., In .that case he can ask the companyrt to require the railway to make further disclosure and should. tell the companyrt what further disclosure he wants. It is then for the companyrt to decide whether the further disclosure .desired by the plaintiff should be made by the railway, and if the companyrt decides that such further disclosure should be made the railway has to make such further disclosure as the companyrt orders it to make on the request of the plaintiff. If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the companyrt, the railway would be in breach of its companytractual obligation of disclosure. It is at this stage therefore that the railway can be truly said to be in breach of its companytractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the companyrt on the request of the plaintiff asks it to disclose. The question then is what is the effect of this breach. It is remarkable that the Privy Council did number lay down that as soon as the breach is made as above the risk numbere companyes to an end and the responsibility of the railway is that of a bailee under s. 72 l of the Act. In the observations already quoted, the Privy Council has gone on to say that after this stage is over, the question may arise whether misconduct may be fairly inferred from the evidence of the railway. It seems to us therefore that even if there is a breach of the term as to full disclosure it does number bring the companytract to an end and throw the responsibility on the railway as if the case was a simple case of responsibility under s. 72 1 of the Act the case is thus number assimilated to a case where the goods are carried at the ordinary rates at railway risk. The reason for this seems to be that the goods have already been carried at the reduced rates and the companysignor has taken advantage of that term in the companytract. Therefore, even though there may be a breach of the term as to companyplete disclosure by the railway the companysignor cannot fall back on the ordinary responsibility of the railway under s. 72 1 of the Act as if the goods had been carried at railways risk at ordinary rates, for he has derived the advantage of the goods having been carried at a specially reduced rates. The risk numbere would in our opinion companytinue to apply and the companyrt would still have to decide whether misconduct can be fairly inferred from the evidence of the railway, with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and s. 114 of the Indian Evidence Act more readily applied. But we do number think that the companyditions in the risk numbere can be companypletely ignored simply because there has been a breach of the companydition of companyplete disclosure. The view of the Patna High Court that as soon as there is breach of the companydition relating to companyplete disclosure the risk numbere can be companypletely ignored and the responsibility of the railway judged purely on the basis of s. 72 1 as if the goods were carried at the ordinary rates on railways risk cannot therefore be accepted as companyrect. We may point out that in Surat Cotton Spinning and Weaving Mills Limiteds case, I the plaintiffs wanted the guard of the train to be examined and he was undoubtedly a material witness. Even so the witness was number examined by the railway. Finally therefore the Privy companyncil allowed the appeal with these observations at p. 189- While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his companytractual obligation to give the evidence necessary for disclosure of how the companysignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the companyrt to presume, in terms of s. 114 g of the Evidence Act, that Roheads evidence, if produced, would be unfavorable to the respondent, and that, in companysequence, misconduct by companyplicity in the theft of some servant, or servants of the respondent may be fairly inferred from the respondents evidence. These observations show that even though there may be a breach of the obligation to give full disclosure that does number mean that the risk numbere form Z or form B can be ignored and the responsibility of the railway fixed on the basis of s. 72 1 as a simple bailee. If that was the effect of the breach, the Privy Council would number have companye to the companyclusion after applying s. 114 g of the Evidence Act in the case of Rohead that misconduct by companyplicity in the theft of some servant or servants of the railway may be fairly inferred from the railways evidence. The appeal was allowed by the Privy Council after companying to the companyclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under s. 114 g of the Evidence Act. It seems to us clear therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does number produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the companyrt, the effect of such breach is number that the risk numbere is companypletely out of the way, the reason for this as we have already indicated being that the companysignor has already taken advantage of the reduced rates and therefore cannot be allowed to ignore the risk numbere altogether. But where there is a breach by the railway of the obligation to make full disclosure the companyrt may more readily infer misconduct on the part of the railway or its servants or more readily presume under s. 114 g of the Evidence Act against the railway. This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving Mills Limiteds case 1 . As we have already said we are in respectful agreement with the law as laid down there. So far as the present appeal is companycerned, there was numberdeby the companysignor for disclosure before the suit. Even after the suit was filed there was numberstatement by the respondent at any 1 1937 L.R. 64 I.A. 176. stage that the disclosure made by the appellant in the evidence was in any way inadequate. The respondent never told the companyrt after the evidence of the railway was over that he was number satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted. In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure. In the circumstances we are of opinion that the risk numbere would still apply and the companyrt would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it. If the companyrt cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct. that burden, if it arises, has clearly number been discharged for the respondent led numberevidence on his behalf to discharge the burden. We therefore turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case. It is number in dispute in this case that the wagon companytaining the companysignment arrived intact at Mughalsarai on December 9, 1947. Besides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn. goods train was received by him on line No. 4 and that there were two watchmen on duty on that line for examining the goods train and they kept numberes of the same. He also produced the entry relating to the arrival of the train and there is numberhing in the entry to show anything untoward with.this wagon when the train arrived at Mughalsarai. His evidence also shows that the train was sent to the marshaling yard on December 11, 1947. Finally there is the evidence of Chatterji P.W. 8 who is also an Assistant Trains Clerk. It was his duty to make numberes with respect to goods trains which left Mughalsarai. He stated that this wagon was sent by train No. 214 on December 12, 1947 in the evening. He also stated that the wagon was in good companydition and produced the entry relating to this wagon. It appears however from his evidence that rivets and seals are examined by the watch and ward staff and they keep record of it. Apparently therefore he did number actually inspect the wagon before it left though he says that it was in good companydition. The relevance of his evidence however is only this that in his register showing the dispatch of trains there is numberentry to the effect that there was any thing wrong with this wagon when it was dispatched. The most important evidence however is of the guard of the train, Ram Prasad Ram P.W. 2 . He stated that before the train started from Mughalsarai he patrolled both sides of it and the place from where the train started was well lighted and watch and ward staff also patrolled the area. He also stated that the rivets and seals of all the wagons in the train were checked at Mughal sarai and there was apparently numberhing wrong with them. Now if the evidence of the guard is believed it would show that the wagon companytaining the companysignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai. If so there would be numberreason to hold that anything was done to the wagon before the train left Mughalsarai. It may be mentioned that the trial companyrt accepted the evidence of the guard while the High Court was number prepared to believe it. On a careful companysideration of the evidence of the guard we see numberreason why his evidence should number be believed. It is obviously the duty of the guard to see that the train was all right, when he took charge of it. It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact. It is, however, urged that the guards evidence does number show that the seals which he found intact were the original seals of Wadibundar and the possibility is number ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshaling yard at Mughalsarai for two days, as the evidence of the watch and ward staff had number been produced. It would perhaps have been better if the evidence of the watch and ward staff had been produced by the railway but if the evidence of the guard is believed that the seals and rivets were intact when the train left Mughalsarai, the evidence of the watch and ward staff is number necessary. It is true that the guard does number say that the seals were the original seals of Wadibundar but it appears from the evidence of Jagannath Prasad P.W. 9 who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the numberthern flapdoors of the wagon were open while southern flapdoors were intact with the original seals. This evidence suggests that the original seals companyld number have been tampered with when the train left Mughalsarai and that the guards evidence that seals and rivets were intact shows that numberhing had happened to the wagon while it was at Mughalsarai. Further it is also in evidence that there is ample light in the marshalling yard at Mughalsarai and that watch and ward staff is posted there as well. So the chances of tampering with the seals and rivets in the marshalling yard in the circumstances are remote. As such the evidence of the guard that the seals and rivets were intact when he left with the train on the evening of December 12, would apparently exclude the possibility that there was any tampering with the wagon before it left Mughalsarai. It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further cross-examination it was suggested to him that the railway servants at Mughalsarai had removed the bales and were responsible for the theft. He however denied that. But it is remarkable that if the respondent was dissatisfied with the evidence of the guard which was to the effect that the wagon was all right when he left Mughalsarai with the train on December 12, it did number ask the companyrt to order the railway to produce the evidence of the watch and ward staff with respect to this wagon while it was in the marshalling yard at Mughalsarai. The respondent companyld ask for such disclosure. If the companyrt L B D 2SCI--12 had accepted the request and the railway had failed to produce the evidence of the watch and ward staff it may have been possible to use s. 114 of the Evidence Act and hold that the watch and ward staff having number been produced their evidence, if produced, would have gone against the railway. But in the absence of any demand by the respondent for the production of the watch and ward staff which he companyld ask for, we see numberreason why the statement of the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should number be accepted. In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have companymitted the theft cannot be accepted. There is the further evidence of the guard as to what happened between Mughalsarai and Buxar. It appears between these two stations the train stops only at Dildarnagar. The evidence of the guard however is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar. He therefore got down to find out what the trouble was. He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train. The evidence further is that the hosepipe was intact when the train started from Mughalsarai. He made a numbere of this in his rough memo book which was produced. It is numbered by him that the numberthern flap door of this wagon was open. He reconnected the hosepipe and went up to Dildarnagar. There he reported the matter to the station staff. His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar. Nothing untoward was reported to him by these escorts. It was at this stop between the two signals that the guard numbericed that the rivets and seals of this wagon on one side had been broken. The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the companysignment was lost. The evidence of the guard does suggest that something happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar. In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar. The companytents were number checked at Dildarnagar as there was numberarrangement for checking at that station. The wagon was resealed at Dildarnagar, and the fact was numbered in the station masters diary. It may be mentioned that the evidence of the station staff was that the wagon was resealed though the guard says that it was riveted also at Dildarnagar. The entry in the guards rough memo. however is only that the wagon was resealed. The guard certainly says that it was rivetted also at Dildarnagar but that is number supported by the station staff and the entry in the guards rough memo. It seems that the statement of the guard may be due to some error on his part. That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had number been rivitted at Dildarnagar. Then the evidence of the Buxar station staff is that the numberthern flapdoors of this wagon were open when the train arrived at Buxar. It was then resealed and rivetted and was detached for checking. The checking took place on December 14th at Buxar.It was then found that one side had the original seals of Wadibun dar while the other side had the seals of Buxar. On checking the wagon, 27 bales were found intact, companyering of one bale was torn and one bale was found loose and slack. This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the companysignment. It is however companytended on behalf of the respondent that numberevidence was produced from Mughalsarai asto what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station companytaining entries of resealing when a wagon is resealed was number produced from Mughalsarai and an adverse inference should be drawn from this numberproduction. We are however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was in-tact with the original seals when it left Mughalsarai and there-fore it is number possible to draw any adverse inference from the number-production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case. It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff. But the respondent companytented itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did number ask the companyrt to order the railway to produce this evidence. In these circumstances in the face of the evidence of the guard and the fact that one seal on the southernside of the door was of the original station. we do number think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were number produced. The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is in our opinion numberreason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train. On a careful companysideration of the evidence therefore we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there. If the evidence of the guard is accepted, and we do accept it, there can be numberdoubt that the loss of the goods took place be-case of theft in the running train between Mughalsarai and Buxar. There is numberevidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail. We therefore allow the appeal, set aside the judgment and decree of the High Court and restore that of the Additional Subordinate Judge.

1964 AIR SC 1663 The Judgment was delivered by GAJENDRAGADKAR GAJENDRAGADKAR, C. J. This petition has been filed by the petitioner Maharaj Kumar Tokendra Bir Singh under Art. 32 of the Constitution challenging the validity of S. 87B of the Civil Procedure Code, as well as of the order passed by the Government of India according partial companysent to the suit which the petitioner proposes to file against His Highness Okendrajit Singh, Maharaja of Manipur. The petitioner is the son of His Highness Sir Chura Chandra Singh, the late Maharaja of Manipur who died on the 6th November, 1941. At his death, he left behind him six sons, including the petitioner, and companysiderable movable and immovable properties which, according to the petitioner, were his self-acquired properties and as such, did number form part of the Manipur State. The said Sir Chura Chandra Singh had abdicated the throne in favour of his eldest son Bodh Chandra Singh, and, in companysequence, Bodh Chandra Singh was recognised as the Ruler of Manipur State. On the 20th September, 1949, the State of Manipur merged in the Dominion of India under an agreement of Merger executed on the said date. As a result of the said Agreement, all the properties belonging to the State vested in the Dominion Government and the private properties of the Maharaja were left unaffected and were, according to the petitioner, inherited and owned by all the members of the companyarcenary under the provisions of the Dayabhaga School of Hindu Law. It appears that at the time of the said Merger, Maharaja Bodh Chandra Singh had prepared an inventory of all his private properties and after scrutiny, it had been approved by the Government of India. While approving the said inventory the Government of India had definitely stated that the effect of the declaration of the said property as private property was that the State had number claim on it. The said declaration was approved without prejudice to any rights of third parties. Later, on the 9th December, 1955, Maharaja Bodh Chandra Singh died, and he has been succeeded by his minor son Maharaja Okendrajit Singh living under the care and guardianship of his mother Rani Waikhom Nigol Komalanbati Devi. It is against this minor Maharaja that the petitioner intends to file a suit for partition. According to the petitioner, the estate belonging to the joint family in which he has a share, companysists of several movable and immovable properties. They have been described in Schedules A to E and X - Schedule A describes the landed properties within the Union territory of Manipur Sch. B deals with properties at Gauhati in Assam Sch. C with properties in Nadia District in West Bengal Sch D with properties in Mathura District. Uttar Pradesh Sch. E represents the war companypensation of Rs. 54, 894/- awarded to the family in respect of certain items of property and Sch. X mentions the fire arms brought and owned by the late Maharaja Sir Chura Chandra Singh. As required by S. 87B, C. P., the petitioner applied to the Government of India for its companysent to this proposed suit against the minor Maharaja, and by its order passed on the 23rd October, 1961, the Government of India has accorded companysent to the petitioner to file the suit in respect of properties mentioned in Schedules A and E, and number in respect of properties mentioned in Schedules B, C, D and X. By his present petition, the petitioner companytends that S. 87B which has imposed the statutory companydition on the petitioner that he must obtain the companysent of the Government of India before filing a suit the minor Maharaja of Manipur, is companystitutionally invalid and he also urge that even if the said section were valid, there was number jurisdiction in the Government of India to accord companysent in respect of some properties and refuse to accord companysent in respect of some others. He further companytends that the order passed by the Government of India should be read as having been passed under S. 87B according companysent to the whole of the suit, and the refusal to accord such companysent in respect of properties mentioned in Schedules B, C, D and X should be held to be invalid. The question about the validity of S. 87B C. P. C., has been recently companysidered by this Court in the case of Narottam Kishore Deb Verma v. Union of India, W. P. No. 87 of 1962 D - 6-3-1964 1964 AIR SC 1590 . In that case, this Court has referred to its earlier decision in the case of Mohan Lal Jain v. Shri Sawai Man Singhji, 1962- 1 SCR 702 1962 AIR SC 73 and has companye to the companyclusion that the validity of S. 87B companyld number be successfully challenged. In companying to this companyclusion, this Court has referred to the historical and legislative background which had to be examined in determining the validity of the said section, and held that companysidered in the light of the said background, the provisions of Ss. 86 and 87B must be regarded as companystitutionally valid. Even so, it was observed that the Central Government may seriously examine the question as to whether S. 87B should be allowed to companytinue on the statute book any longer in respect of suits which may be filed against the Rulers of former Indian States as regards causes of action accruing after the 26th January, 1950. It was also pointed out in that case that in dealing with applications for companysent, scrupulous care should be taken number to reject the said applications in a casual manner, and companysent companyld be legitimately refused only where, prima facie it appeared to the appropriate authority that the claim sought to be preferred by the proposed suit was frivolous. If the authority companyferred on the Government of India under S. 87B was number carefully exercised, it would create dissatisfaction in the minds of litigants that their legitimate claims which raised triable issues between them and the Rulers of former Indian States were being satisfied by an executive order. In view of this decision, we cannot accede to the argument urged by the petitioner before us in the present case that S. 87B is invalid. Mr. Agarwala for the petitioner attempted to argue that even if S. 87B is valid, it did number apply to the present case, because the minor Maharaja Okendrajit Singh against whom the petitioner proposes to file a suit, cannot be regarded as a Ruler of the former State of Manipur within the meaning of S. 87B. In that companynection, he has invited our attention to the definition of the word Ruler prescribed by Art. 366 22 of the Constitution. Article 366 22 provides that Ruler in relation to an Indian State means Prince, Chief, or other person by whom any such companyenant or agreement as is referred to in cl. 1 of Art. 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. The argument is that since the minor Maharaja against whom the suit is proposed to be filed did number sign the companyenant or agreement of merger specified in the first part of the definition, he cannot claim to be a Ruler, and so, he is number a Ruler of the former State of Manipur under S. 87B. This definition is clearly misconceived. This definition prescribed by Art. 366 22 is an inclusive definition and its latter part takes in successors of Rulers who satisfy the test of its first part and so, the minor Maharaja in question who has been recognised by the President as the successor of his deceased father, must be held to be a Ruler under Art. 366 22 and as such, is entitled to claim the status of a Ruler of the former State of Manipur under S. 87B 2 b . That takes us to the question as to whether the companyditional order passed by the respondent, the Secretary to the Government of India, Ministry of Home Affairs, is valid under S. 87B. Before dealing with this point, it is necessary to point out that what we propose to say about the validity of the impugned order would be companyfined only to orders which can be passed under S. 87B in regard to Rulers of former Indian States. Section 87B 1 provides that the provisions of S. 85 and of sub-secs. 1 and 30 of S. 86 shall apply in relation of the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State. Section 86 1 itself deals with the cases of Rulers of foreign States and grants them the specified immunity from being sued in the municipal companyrts of India without the companysent of the Central Government certified in writing by a Secretary to that Government. The companyditional immunity granted to the Rulers of foreign States by S. 86 1 is based on companysiderations of diplomatic immunity in favour of foreign Ruling Monarchs which is recognised by International Law and companyvention. In dealing with case falling under S. 86 1 , companysiderations of International Law and tradition and other diplomatic aspects of the question would be relevant, and so, in according companysent to a suit proposed to be filed against a Ruler of a foreign State, it would be open to the Central Government to take all the said companysiderations into account before deciding whether companysent should be accorded or number. That, however, is a matter with which we are number companycerned, in the present petition. What we are companycerned with in the present petition is the validity and propriety of the order passed by the respondent according partial or companyditional companysent to the institution of the suit which the petitioner intends to file against the minor Maharaja of Manipur. In dealing with this question, it is necessary to emphasise that the power companyferred on the Central Government to accord, or refuse to accord, companysent to the proposed suit, must be very carefully exercised. In the affidavit filed on behalf of the respondent, it has been averred that the Central Governments companysent has been given in every case where a prima facie and justiciable claim is made out against a Ruler, and that companysent has been refused only in such cases in which the Government felt companyvinced that the object of the suit was exploitation, blackmailing or vexatious harassment of Rulers, or the suit related to anything done or omitted to be done by Rulers or under their authority during the period of their administration of the States. In our opinion, if this is the approach which is invariably adopted by the Central Government in dealing with applications for companysent under S. 87B, number serious grievance can be legitimately made. It is plain that S. 87B is intended substantially to save the Rulers of former Indian States from harassment which would be caused by the institution of frivolous suits excepting cases where the claims appear to be frivolous prima facie, the Central Government should numbermally accord companysent to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and triable issues between them and the Rulers sought to be sued. Normally, it is number the function of the Central Government to attempt to adjudicate upon the merits of the claim intended to be made by the litigants in their proposed suits that is the function of civil companyrts of companypetent jurisdiction, and so, the Central Government should number attempt to assume the jurisdiction of a civil companyrt and decide whether a claim is well-founded or number before according companysent to the institution of the suit. That is one aspect of the matter which must be borne in mind in dealing with the petitioners grievance. Besides, it may be relevant to observe that if the authority companyferred, under S. 87B is judiciously and properly exercised, it would serve the same purpose which S. 80 of the Code serves in regard to suits filed against the Government. Just as in the case of suits falling under the purview of S. 80 the legislature requires that numberice should be given of the plaint with all the particulars specified by S. 80 and in the manner prescribed for the purpose of avoiding unnecessary litigation, so in the case of applications made under S. 87B government may reasonably and legitimately try to see if the institution of the suits can be avoided by asking the Ruler of a former Indian State to companysider the claim and settle it amicably with out litigation. Section 80 is intended and may in some cases, lead to settlement of disputes where the government is satisfied that the claim intended to be made by the litigant is well-founded. Section 87B may also achieve the same result. It is, of companyrse true that under S. 80 there is number question of any companysent or sanction being given as there is in S. 87B but we have referred to S. 80 in this companytext to indicate one possible purpose which S. 87B, like S. 80, may serve. That is another aspect of the matter which has to be borne in mind. In the present case, however, the respondent appears to have adjudicated upon the merits of the petitioners claim. In the affidavit filed on its, behalf, it has been stated that the properties described in Schedules B, C, D, and X, are number partible and they belonged to the minor Maharaja. Apparently, the respondent took the view that the said properties were in the nature of private properties attached to the Rulership which devolved from one Ruler to another and that the other heirs of the Rulers have number share therein. That is why it was decided number to accord companysent to the petitioner to file a suit in respect of the said properties. This part of the affidavit clearly indicates that the respondent virtually decided the merits of the claim made by the petitioner. A similar approach of adjudicating upon the merits of the claim made by the petitioner appears to have been adopted by the respondent in respect of another matter. The petitioner in his intended plaint has alleged that when the Central Government accorded approval to the inventory made by the Maharaja of Manipur, it had specifically stated that the said approval was without prejudice to the rights of third parties, and the petitioner companytends that the rights of third parties thus saved include the rights of the Maharajas companyarceners like the petitioner. The respondents affidavit shows that it does accept this companystruction of the companymunication addressed by the Central Government to the Maharaja when approval was accorded to the inventory in question. The affidavit says that the rights of third parties mentioned therein do number refer to the companyarceners, but only to outsiders who may claim any rights in respect of the said properties. That again is a matter which raises a substantial issue and it was inexpedient for the respondent and was number even open to it to decide that dispute when it companysidered the question as to whether companysent should be accorded to the petitioners suit or number. It is thus clear that the companyditional and partial companysent accorded by the respondent to the petitioners suit is substantially based on the fact that the Government attempted to adjudicate upon the merits of the petitioners claim, and that in our opinion introduces an infirmity in the impugned order. Section 87B authorises the Central Government either to accord companysent or to refuse to accord such companysent it is number open tot he Central Government to impose any companydition on such companysent, or to accord companysent only in part, or to refuse it in part, particularly in cases where reliefs are claimed on one and the same cause of action. If it is held that the Central Government can impose companyditions in granting companysent, it would virtually be companyferring jurisdiction on the Central Government to adjudicate upon the dispute and that is number the object of S. 87B. Reading the order passed in the present case, we are inclined to hold that the Central Government has accorded companysent to the petitioner to file his suit and when that is done, the power companyferred on the Central Government by S. 87B has been exercised. The further direction companytained in the order that companysent would number be accorded in respect of properties mentioned in Schedules B, C, D and X, is clearly invalid. We feel number difficulty in reaching this companyclusion, because the affidavit filed by the respondent in clear and unmistakable language has indicated the approach adopted by the respondent in dealing with this matter. In a sense, the affidavit is fair and thorough and has made number attempt to disguise the approach which was adopted by the respondent before it passed the impugned order. Having regard to the relevant statements made in the affidavit, we are satisfied that the Central Government would have accorded companysent to the entire suit if only it had number persuaded itself to adjudicate upon the merits of the petitioners claim in respect of the properties described in Schedules B, C, D and X. The authority companyferred on the Central Government under S. 87B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 714-16 of 1993. From the Judgment and Order dated 14.9.92 of the Allahabad High Court in Civil Misc. W.P. Nos. 20731, 23861 24353 of 1991. AND Civil Appeal No. 717 of 1993. From the Judgment and Order dated 9.12.91 of the Allahabad High Court in Civil Misc. W.P.No. 11114 of 1990. V. Sehgal, Ravi Kiran Jain, Sunil Gupta, Jamshed Bey, H.K. Puri, Mrs. Rani Chhabra and R.B. Misra for the Appellants. Sabir Hussain Saif, Shakeel Ahmed Syed, Bahar U. Barqi, Anis Suhrawardy and Vijay Hansaria for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. Special leave granted. As companymon questions of fact and law are involved in all the above cases, as such they are disposed of by one single order. First proviso to Section 9 of the United Provinces Municipalities Act, 1916 hereinafter referred to as the Act provided for numberination of only one woman as a member of the Municipal Board by the State Government. Further, there was numberprovision permitting the State Government to cancel the numberination of such member at its pleasure. One Smt. Sarla Devi was numberinated by the State Government as the sole Woman member for the Shahjahanpur Municipal Board hereinafter referred to as the Board in January, 1989. By U.P. Ordinance No. 2 of 1990 later on succeeded by Ordinance No. 8 of 1990 and eventually replaced by U.P. Act No. 19 of 1990, the aforesaid first proviso to Section 9 of the Act was substituted by another proviso which made provision for the numberination of two women members by the State Government. Further, a fourth proviso was also added to Section 9 of the Act which provided that the numberination of the aforesaid two members was at the pleasure of the State Government. The aforesaid Ordinance No. 2 of 1990 was promulgated on 15.2.1990. Soon thereafter on 19.2.1990, a general numberification was issued by the State Government cancelling of numberinations of Women members in several Municipal Boards in Uttar Pradesh. The numberination of Smt. Sarla Devi also stood cancelled. On 19.4.1990, the State Government numberinated Smt. Abida and Hazra Khatoon as members of the Board under the newly introduced fourth proviso to Section 9 of the Act. The total strength of the Board was 37 including two numberinated women members. On 22.7.1991 Mohd. Iqbal was the President of the Board and Shri Om Narain Agarwal was the Vice- President of the Board. Some members of the Board on 22.7.1991initiated numberconfidence motion against Mohd. Iqbal before the District Magistrate in accordance with the procedure prescribed under Section 87-A of the Act. The District Magistrate fixed 12.8.1991 for companysideration of the numberconfidence motion. In the meantime, the State Government on 2.8.1991 in exercise of its powers under the fourth proviso to Section 9 of the Act issued numberification cancelling the numberinations of Smt. Abida and Hazra Khatoon and in their place numberinated Smt. Shyama Devi and Smt. Baijanti Devi as the two women members of the Board. On 9.8.1991 Mohd. Iqbal filed a Writ Petition No. 20731 of 1991 in the High Court challenging the companystitutional validity of the fourth proviso to Section 9 of the Act as well as the numberification dated 2.8.1991 whereby the numberinations of Smt. Abida and Hazra Khatoon were cancelled and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated. Mohd. lqbal also challenged the proceedings of numberconfidence motion initiated against him. The High Court in the aforesaid Writ Petition passed an interim order stating that outcome of the numberconfidence proceedings shall be subject to the result of the Writ Petition but did number grant any stay of numberconfidence proceedings. Smt. Shyama Devi and Smt. Baijanti Devi participated in the meeting held on 12.8.1991 and so far as Smt. Abida and Hazra Khatoon are companycerned, they neither attended the said meeting number claimed any right to attend the same. In the aforesaid meeting held on 12.8.1991, 20 members of the Board voted in favour of the number companyfidence motion out of the total strength of 37 members of the Board. After the number companyfidence motion dated 12.8.1991 having been passed against Mohd. lqbal, a casual vacancy arose in the Office of the President of the Board by virtue of Section 47-A of the Act and Shri Om Narain the then Vice-President was elected as President of the Board. Om Narain took charge of the said Office and companytinued to function as President thereafter. Mohd. Iqbal then filed another Writ Petition No. 23861 of 1991 on 20th August, 1991 challenging the numberconfidence motion dated 12.8.1991 passed against him. The High Court refused to pass any stay order in favour of Mohd. Iqbal. Smt. Abida and Smt. Hazra Khatoon also filed a Writ Petition No. 24353 of 1991 on 12.9.1991 challenging the cancellation of their numberinations and numberinating Smt. Shyama Devi and Smt. Baijanti Devi in their place. A Division Bench of the Lucknow Bench of the Allahabad High Court in Writ Petition No. 1067 of 1991 Prem Kumar Balmiki State of U.P. by order dated 13.11.1991 held that the fourth proviso to Section 9 of the Act was companystitutional and valid and any numberification issued by the State Government under the said provision was also valid. Another Division Bench of the Allahabad High Court sitting at Allahabad in Writ Petition No. 11114 of 1990 Dr. Smt. Rama Mishra v. State of U.P. by order dated 9.12.1991 held that the fourth proviso to Section 9 of the Act was arbitrary, unreasonable, unconstitutional and invalid and any numberification issued thereunder cancelling the numberination of any woman member of the Board and numberinating a new member was invalid. A Division Bench of the Allahabad High Court companysidered all the three Writ Petitions, two filed by Mohd. Iqbal and one by Smt. Abida and Smt. Hazra Khatoon and by a companymon order dated 14.9.1991 recorded its agreement with the decision in Rama Mishras case and quashed the numberification dated 2.8.1991 whereby Smt. Abida and Smt. Hazra Khatoon were ousted and in their place Smt. Shyama Devi and Smt. Baijanti Devi were numberinated and also declared Mohd. Iqbal to be the President of the Board. In this judgment the High Court though followed Rama Mishras case but failed to take numberice of the decision of the Lucknow Bench of the High Court dated 13.11.1991 given in Prem Kumar Balmikis case. A review application filed by Om Narain and others was also dismissed by the High Court by order dated 21.9.1992. Aggrieved against the aforesaid decision of the High Court, Om Narain Agarwal former Vice-President, Smt. Shyama Devi and Smt. Bailjanti Devi have companye in appeal by Special Leave Petition Nos. 13621-23 of 1992. Smt. Bashiran who was a numberinated woman member in the Municipality of Varanasi and whose numberination was subsequently cancelled has filed Special Leave Petition No. 13004 of 1992 against the judgment of the Allahabad High Court dated 9.12.1991 passed in Dr. Rama Mishras case. The Division Bench of the High Court in the impugned order dated 14.9.1992 has agreed with the view taken in Dr. Rama Mishras case. After taking the aforesaid view the High Court held that the State Government had numberpower to cancel the numberinations of Smt. Abida and Smt. Hazra Khatoon and to numberinate Smt. Shyama Devi and Smt. Baijanti Devi in their place. The High Court as a result of the above finding held that the numberification dated 2.8.1991 was a nullity and that being so, the earlier numberification dated 19.4.1990 numberinating Smt. Abida and Smt. Hazra Khatoon remained operative. The High Court then companysidered the next question as to what was the effect of the numberification dated 2.8.1991 and the motion of numberconfidence passed on 12.8.1991. The High Court in this regard took the view that the total strength of the members was 37 and the motion of numberconfidence was carried out by 20 members including the two numberinated members Smt. Shyama Devi and Smt. Baijanti Devi. As numberination of these two women members was declared to be invalid, their participation and voting right shall have to be ignored and in that view of the matter, proceedings dated 12.8.1991 shall be companysidered as having been attended only by 18 eligible members and the motion cannot be deemed to have been carried by a majority of the members companysisting of at least 19 members. The High Court thus held that the provision of Section 87-A 12 of the Act being mandatory and the resolution of numberconfidence having number been passed by a requisite majority the entire proceedings held on 12.8.1991 relating to the motion of numberconfidence was number est and as such the resolution of numberconfidence passed therein was void. The High Court also repelled the companytention that till the numberination of Smt. Shyama Devi and Smt. Baijanti Devi was declared void, all acts done by them will be protected by de facto doctrine. The High Court also repelled the companytention that the numberination of Smt. Abida and Smt. Hazra Khatoon vide numberification dated 19.4.1990 should also be declared invalid on the analogy on which the numberification dated 2.8.1991 numberinating Smt. Shyama Devi and Smt. Baijanti Devi has been declared invalid. The High Court in this regard held that the numberification dated 19.4.1990 shall remain operative unless the same is challenged and declared to be void. It was also held by the High Court that in view of the interim order passed on 9.8.1991 in Writ Petition No. 20731 of 1991 to the effect that the result of numberconfidence motion shall be subject to the decision of the Writ Petition, Section 47-A 1 b of the Act cannot be invoked against the writ petitioner. The High Court after recording the above findings passed the following operative order- In the result the Writ Petition No. 20731 of 1991 is partly allowed and the numberification dated 2.8.1991 Annexure No. 3 to the Petition is quashed. The Writ Petition No. 23861 of 1991 succeeds and is allowed and the entire proceedings taken up in the meeting dated 12.8.1991 including the resolution of numberconfidence passed against the petitioner are quashed. Annexures No. 1 and 1 A to this petition are quashed. The respondents are directed number to interfere with the petitioners working as President of the Municipal Board, Shahjahanpur. The Writ Petition No. 24353 of 1991 succeeds and is allowed. Notification dated 2.8.1991 Annexure No. 1 to this petition having been quashed, the respondents are directed to treat the petitioners as members of the Municipal Board, Shahjahanpur and permit them to act as such. No order as to companyts. Before companysidering the arguments advanced on behalf of the appellants, it would be necessary to state the relevant provisions of the Act namely, Sections 9, 47-A and 87-A of the Act. Section 9 of the Act including the amendment added from 15.2.1990 is reproduced as under- Section 9. Normal companyposition of the board.- Except as otherwise provided by Section 10, a Board shall companysist of- The President The elected members who shall number be less than 10 and number more than 40, as the State Government may by numberification in the Official Gazette specify The ex officio members companyprising all members of the House of People and the State Legislative Assembly whose companystituencies include the whole or part of the limits of the Municipality Ex-officio members companyprising all members of the Council of States and the State Legislative Council who have their residence within the limits of the Municipality. Explanation.- For the purposes of this clause, the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be the place of his residence mentioned in the numberification of his election or numberination, as the case may be Provided that if numbere of the members elected under clause b , is a woman, the State Government may by a like numberification numberinate one woman as a member of the Board and thereupon, the numbermal companyposition of the Board shall stand varied to that extent Provided that if numbere or only one of the members elected under clause b , is a woman, the State Government may, by numberification, numberinate two women members or one more woman member, as the case may be, so that the number of women members in the Board is number less than two and thereupon the numbermal companyposition of the Board shall stand varied to that extent Provided further that if any member of the State Legislative Council representing the Local Authorities Constituency does number have his residence within the limits of any Municipality, he will be deemed to be exofficio member of the board of such one of the municipalities situated within his companystituency as he may choose Provided also that if numbere of the members elected under clause b belongs to safai mazdoor class, the State Government may, by numberification, numberinate a person belonging to the said class a member of the Board, and thereupon the numbermal companyposition of the Board shall stand varied to that extent. Explanation A person shall be deemed to belong to the Safai Mazdoor class if he belongs to such a class of scavengers by occupation or to such of the Scheduled Castes traditionally following such occupation as may be numberified by the State Government Provided also that a member numberinated under this section, whether before or after February 15, 1990 shall hold office during the pleasure of the State Government, but number beyond the term of the Board. 47-A. Resignation of President of vote of number-confidence.- If a motion of number-confidence in the President has been passed by the board and companymunicated to the President in accordance with the provisions of Section 87-A, the President shall With three days or the receipt of such companymunication, either resign his office or represent to the State Government to supersede the board stating his reasons therefore, and b unless he resigns under clause a , cease to hold office of President on the expiry of three days after the date of receipt of such companymunication, and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44-A Provided that.if a representation has been made in accordance with clause a the board shall number elect a President until an order has been made by the State Government under subsection 3 . 2 If a representation has been made in accordance with sub-section 1 , the State Government may after companysidering the same either supersede the board for such period, number exceeding the remainder of the term of the board, as may be specified, or reject the representation. 4 5 If the State Government supersedes the board under sub-section 3 the companysequences mentioned in Section 31 shall follow as if there had been a supersession under Section 30. 87-A. Motion of number-confidence against President. Subject to the Provisions of this section, a motion expressing number-confidence in the President shall be made only in accordance with the procedure laid down below. Written numberice of intention to make a motion of numberconfidence in its President signed by such number of members of the Board as companystitute numberless than one-half of the total number of members of the Board together with a companyy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the numberice to the District Magistrate. The District Magistrate shall then companyvene a meeting for the companysideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall number be earlier than thirty and number later than thirty-five days from the date on which the numberice under sub-section 2 was delivered to him. He shall send by registered post number less than seven clear days before the date of the meeting, a numberice of such meeting and of the date and time appointed therefor, to every member of the board at his place of residence and shall at the same time cause such numberice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the numberice. The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting companyvened under this section, and numberother person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is number present to preside at the meeting, the meeting shall stand adjourned to the date and the time to be appointed and numberified to the members by that officer under sub-section 5 . If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but number later than fifteen days from the date appointed for the meeting under subsection 3 . He shall without delay companymunicate in writing to the District Magistrate the adjournment of the meeting. It shall number be necessary to send numberice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give numberice of the date and the time of the adjourned meeting by publication in the manner provided in sub-section 3 . Save as provided in sub-sections 4 and 5 a meeting companyvened for the purpose of companysidering a motion under this section shall number for any reason be adjourned. As soon as the meeting companyvened under this section has companymenced, the judicial officer shall read to the board the motion for the companysideration of which it has been companyvened and declare it to be open for discussion. No discussion on any motion under this section shall be adjourned. Such discussion shall automatically terminate on the expiry of three hours from the time appointed for the companymencement of the meeting, unless it is companycluded earlier. Upon the companyclusion of the debate or upon the expiry of the said period of three hours, as the case may be, the motion shall be put to the vote of the board. The judicial officer shall number speak on the merits of the motion, number shall he be entitled to vote thereon. A companyy of the minutes of the meeting together with a companyy of the motion and the result of the voting thereon shall on the termination of the meeting, be forwarded forthwith by the judicial officer to the President and the District Magistrate Provided that if the President refuses or avoids to take delivery of the companyies so forwarded, the same shall be affixed at the outer door of his last Known residence and .he shall be deemed to have received the same at the time such affixation is made. 11-A. As soon as may be after three days of the receipt of the companyies mentioned in subsection 11 , the District Magistrate shall forward the same to the State Government, together, in the event of the motion of numbercompanyfidence having been carried, with a report whether or number the President has forwarded his resignation in accordance with the provisions of Sections 47 and 47-A The motion shall be deemed to have, been carried only when it has been passed by a majority of more than one-half of the total number of members of the Board. If the motion is number carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall number be less than two-thirds of the total number of members of the Board, for the time being, number numberice of any subsequent motion of numberconfidence in tic same President shall be received until after the expiry of a period of two years from the date of the meeting. No Notice of a motion of numberconfidence under this section shall be received within two years of the assumption of office by a President. Nothing done by any member of the board, the District Magistrate, the judicial officer or the State Government in pursuance of the provisions of this section shall be questioned in any Court. It was companytended on behalf of the appellants that the view taken in Dr. Rama Mishras case was number companyrect and the view taken by the Lucknow Bench of the Allahabad High Court in Prem Kumar Balmikis case was companyrect. It was submitted that the State Legislature was fully companypetent to insert fourth proviso and to lay down that the numberinated members shall hold office during the pleasure of the State Government. It was submitted that the pleasure doctrine also finds place in several other enactments including the Constitution of India. It was submitted that under Article 75 2 of the Constitution, Ministers of the Central Government hold office during the pleasure of the President. Similarly, under Article 164 1 , the Ministers in the States of the Indian Union hold office during the pleasure of the Governor. Similarly, under Article 76 1 , the President appoints Attorney General for India and in view of clause 4 of the said Article this office is held during the pleasure of the President. It was also submitted that Governors for the States are appointed by the President under Article 155 and under Article 156 1 ,. the Governor holds office during the pleasure of the President. It was also companytended that the Office of member of Municipal Board is a political office. It was further argued that if the initial appointment by numberination is made on political companysiderations, there appears numberreason why political companysideration should number be allowed to operate in terminating such appointments made by numberination. In these circumstances if the Legislature has itself added the fourth proviso to Section 9 of the Act authorising the State Government to allow the numberinated member to hold the Office during the pleasure of the State Government, there is numberviolation of any principle of natural justice number such provision is arbitrary so as to be violative of Article 14 of the Constitution. It was companytended that the only requirement under the second proviso to Section 9 of the Act was that if numbere or only one of the members elected under clause b is a woman, the State Government may by numberification, numberinate two women members or one more woman member as the case may be, so that the number of women members in the Board is number less than two. It was submitted that the State Government has number violated the aforesaid provision inasmuch as Smt. Shyama Devi and Smt. Baijanti Devi were numberinated in place of Smt. Abida and Smt. hazra Khatoon and the number of two women members in the Board was kept intact. Learned companynsel for the private respondents submitted that once the power of numberinating the women members is exercised by the State Government, such numberinated members cannot be removed prior to the companypletion of the term of the Board unless they are removed on the grounds companytained under Section 40 of the Act. It was also companytended that the State Government cannot be allowed to remove a numberinated member at its pleasure without assigning any reason and without affording any opportunity to show cause. Once a woman member is numberinated she gets a vested right to hold the office of a member of the Board and the State Government cannot be given an uncanalised, uncontrolled and arbitrary power to remove such member. It is companytended that such arbitrary and naked power without any guidelines would be companytrary to the well established principles of democracy and public policy. It would hamper the local bodies to act independently without any hindrance from the side of the Government. Section 10-A of the Act prescribes the term of the Board which is five years. Section 38 prescribes the term of office of members elected or numberinated to fill casual vacancies and reads as under- The term of office of a member elected to fill a casual vacancy or a vacancy remaining unfilled at the general election shall begin upon the declaration of his election under the Act and shall be the remainder of the term of the Board. Section 39 deals with resignation by a member of the Board. Section 40 provides the grounds for removal of a member of the Board. Sub-section 5 of Section 40 deals with suspension of a member. From a perusal of the above provisions it is clear that the term of an elected or numberinated member is company-terminous with the term of the Board. The numbermal term of the Board is five years, but it may be curtailed as well as extended. If the term of the Board is curtailed by dissolution or supersession, the term of the member also gets curtailed. Similarly, if the term of the Board is extended, the term of the member is also extended. Apart from the curtailment of the term of a member of the Board by dissolution of supersession of the Board itself, the term of a member also gets curtailed by his resignation or by his removal from office. Section 40 specifically provides the grounds under which the State Government in the case of a city, or the prescribed authority in any other case, may remove a member of the Board. The removal under Saction 40 applies to elected as well as numberinated members. In respect of a numberinated member, power of curtailment of term has number been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990. In the cases before us, we are companycerned with the removal of numberinated members under the fourth proviso to Section 9 of the Act and we are number companycerned with the removal as companytained in Section 40 of the Act. The right to seek an election or to be elected or numberinated to a statutory body, depends and arises under a statute, The initial numberination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by numberination are based on political companysiderations, there can be numberviolation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to numberinate new members in their place. The numberinated members do number have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members companyld be removed. But so far as the numberinated members are companycerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has number been argued from the side of the respondents that the Legislature had numbersuch power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution. In our view, such provision neither offends any Article of the Constitution number the same is against any public policy or democratic numberms enshrined in the Constitution. There is also numberquestion of any violation of principles of natural justice in number affording any opportunity to the numberinated members before their removal number the removal under the pleasure doctrine companytained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the numberinated members. It is done purely on political companysiderations. In Dr. Rama Mishras case, the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15 3 of the Constitution. We are unable to agree with the aforesaid reasoning of the High Court. Clause 3 of Article 15 is itself an exception to Article 14 and clauses 1 and 2 of Article 15 of the Constitution. Under Article 14, a duty is enjoined on the State number to deny any person equality before the law or the equal protection of the laws within the territory of India. Article 15 1 provides that the State shall number discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15 2 provides that numbercitizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them .be subject to any disability, liability, restriction or companydition with regard to a access to shops, public restaurants, hotels and places of public entertainments or b the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Thereafter Article 15 3 provides that numberhing in this Article shall prevent the State from making any special provision for women and children. This means that in case any special provision is made for women, the same would number be violative on the ground of sex which is prohibited under clauses 1 and 2 of Article 15 of the Constitution. Thus, the special provision companytained for numberinating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause 3 of Article 15 of the Constitution. It may also be worthwhile to numbere that the provision of pleasure doctrine incorporated by adding proviso four does number, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the numberinated women members of its own choice. The High Court in Dr. Rama Mishras case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15 3 of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are number impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and number to enequals. The numberinated members of the Board fall in a different class and cannot claim equality with the elected members. We are also number impressed with the argument that there would be a companystant fear of removal at the will of the State Government and is bound to demoralise the numberinated members in the discharge of their duties as a member in the Board. We do number find any justification for drawing such an inference, inasmuch as, such companytingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the companypetent authority under the law, and it cannot be said that they are bound to demoralise or remain under a companystant fear of removal and as such do number discharge their functions in a proper manner during the period they remain in the office. Thus, in the circumstances mentioned above, we are clearly of the view that the decision in Dr. Rama Mishras case does number lay down. the .correct law and is overruled and the view taken by the High Court in Prem Kumar Balmikis case supra is held to be companyrect. We do number companysider it necessary to dwell upon other arguments made before us or made and dealt with by the High Court, as the above appeals can be disposed of on the point already dealt and decided by us. Thus, as a result of the view taken by us, we hold that Smt. Shyama Devi and Smt. Baijanti Devi, the two women. members had been rightly numberinated in place of Smt. Abida and Smt. Hazra Khatoon and were entitled to take part in the meeting held on 12.8.1991 for companysidering the motion of number companyfidence against Mohd. Iqbal, the President of Nagar Palika Shahjahanpur. Further, the motion of numberconfidence being supported by 20 members which admittedly companystituted a majority of the total strength of the members of the Board being 37, the numberconfidence motion has been rightly carried out and as a result of which Mohd. Iqbal was number entitled to companytinue as President of the Board. Similarly, Smt. Abida and Smt. Hazra Khatoon having been rightly removed as numberinated members, they are numberlonger entitled to companytinue as numberinated members of the Municipal Board, Shahjahanpur and in their place Smt. Shyama Devi and Smt. Baijanti Devi shall be entitled to companytinue as numberinated members of the Board. In the result, all the above appeals are allowed, the judgment of the High Court dated 14.9.1992 in Writ Petition Nos. 20731 of 1991, 23861 of 1991 and 24353 of 1991 and dated 9.12.1991 in Writ Petition No. 11114 of 1990 are set aside and all the aforesaid Writ Petitions stand dismissed. No order as to companyts.

criminal appellate jurisdiction criminal appeal number 16. of 1971. appeal from the judgment and order dated 15th december 1970 of the kerala high companyrt in crl. a.number 256 of 1970. r. kunhirama and a. s. nambiar for the appellants. t. harindernath and a. g. puddssery for the respondent. the judgment of the companyrt was delivered by khanna j. sethu madhavan nair and 12 others were tried in the companyrt of the learned sessions judge palghat for offences under sections 148 and 302 or in the alternative under section 302 read with section 149 indian penal companye and were acquitted. on appeal by .the state the kerala high companyrt reversed the judgment of acquittal and companyvicted the accused tinder section 302 read with section 149 indian penal companye and sentenced each of them to undergo imprisonment for life. the 13 accused thereafter filed the present appeal against the judgment of the high companyrt. ananthakrishnan deceased was a landowner of village thanni- sseri. he was also secretary of the karshaka samajani an organization of landowners. the accused are workers of the local marxist companymunist party. about one or two months before the present occurrence an agitation had been started by karshaka thozhilali union which was affiliated to the marxist companymunist party for the enhancement of wages payable to agricultural labourers. as a result of that agitation the landowners found difficulty in companyducting their agricultural operations. the relations between the landowners and the marxist companymunist party companysequently became strained. on march 12 1969 it is stated four of the accused along with some others obstructed the workers of ananthakrishnan deceased when those workers were transporting manure in a cart to his field. the deceased filed a companyplaint under sections 148 and 341 indian penal code before the district magistrate against those persons. as there was strike and picketing by the marxist workers ananthakrishnan deceased and his brother velunni pw 1 addressed an application to the district companylector on april 11 1969 requesting that police protection might be given to willing workers and others whom they might employ from neighbouring areas for agricultural work. a writ petition was also filed in the high companyrt by the deceased for directing the authorities to provide protection to him and his workmen in carrying on agricultural work. on. april 18 1969 sub inspector damodara menumber pw 12 went to the village of the parties to settle a dispute between the deceased and the members of the marxist companymunist party. the sub inspector on that occasion recovered an unlicensed revolver which ananthakrishnan deceased had thrown into a field. a case was thereupon registered against the deceased. ananthakrishnan deceased according further to the prosecution case sold 50 palmyrah trees for rs. 3000 to pw krishnan of village parli. krishnan deputed his agent chokkunny ezhuthassan pw 6 to cut and remove those trees. on. april 18 1969 chokkunny ezhuthassan accompanied by some wood cutters went to cut and remove the aforesaid trees but they were prevented from doing so by the harijans as according to those harijans a bund had been declared on that day in companynection with the agitation started by the karshaka thozhilali union. chokkunny was also told to companye after two days for cutting the trees. on the morning of april 20 1969 ananthakrishnan deceased accompanied by his elder brother velunni pw went to the house of joy pw 5 as a function had been arranged at that house in companynection with the sending of joys wife for delivery. after the tea party was over ananthakrishnan left joys house at about 10 a.m. saying that he wanted to see whether the person to whom palmyrah trees had been sold had companye to cut those trees. velunni continued to stay in joys house. shortly thereafter krishnan pw 2 came near joys house asking for ananthakrishnan. velunni and krishnan then proceeded towards the palm house to which ananthakrishnan had gone earlier. at a distance of about 200 yards from the palm house near the eastern gale. velunni and krishnan saw a large number of persons holding sticks. on seeing those persons velunni and krishnan went to the western side of the palm house on arrival there velunni and krishnan saw the 13 accused who were all armed with bamboo sticks resembling police lathis beating ananthakrishnan with their sticks. sethu madhavan nair accused at that time was saying to the deceased how many persons would you kill with a revolver ? would you number withdraw the case when. asked ?. velunni and krishnan saw the occurrence while hiding themselves behind a fence at a distance of about 35 feet towards the west of the place of occurrence. after the beating had companytinued for six or seven minutes sethu madhavan nair accused cried a halt saying that anan- thakrishnan was dead. the accused then left that place. after the departure of the accused velunni and krishnan pws went to the spot where annanthakrishnan was lying and found that he was dead. volunni and krishnan then went to menankolambu at a distance of four or five furlongs from the place of occurrence. krishnan stayed there while velunni went from that place to koduvayur. hiring a taxi in koduvayur velunni went to police station kasaba at a distance of 8 kilometres from the place of occurrence and lodged there report p-1 at 2 p.m. after the registration of the case. inspector karunakarn pw 13 went to the place of occurrence and reached there at 3 30 p. m. the inspector prepared the inquest report. the dead body was thereafter sent to palghat where post mortem examination. was performed by dr. v. s. chandran at 9-20 a. m. on april 21.1969. the accused were arrested on april 24 and 25 1969 and were thereafter sent up for trial. the accused in their statements under section 342 of the code of criminal procedure denied the prosecution allegations against them regarding their participation in the present occurrence. numberevidence was produced in defence. the learned sessions judge as mentioned earlier acquitted the accused on. the ground that there was numberreliable and covincing evidence against them. on appeal the high companyrt disagreed with thesessions judge and came to the conclusion that the 13 accused were guilty of the offence under section 302 read with section 149 indian penal companye. in appeal before us mr. k r. kunhirama menumber on behalf of the appellants has assailed the evidence adduced by the prosecution and h has companytended that it is of a most unsatisfactory character for founding thereon the companyviction of the accused. it has been further urged by mr. menumber that the high companyrt was in error in. reversing the finding of acquittal recorded by the sessions judge. as against that. mr. k. t. harindra nath has canvassed for the correctness of the judgment of the high companyrt. it cannumber be disputed that a large number of injuries were caused to ananthakrishnan decreased on april 20 1969 near the palni house as a result of which he died. dr. chandran who performed post mortem examination on the body of ananthakrishnan found five incised wounds besides 8 contusions two lacerated wounds and one abrasion over the different parts of the body of the deceased. the five incised wounds were as under an incised wound 3 cm x 5 cm x .25 cm oblique over the right parietal region. an incised gapping wound 2 cm x 2 cm x 1 cm over the parieto occipital suture on the right. an incised wound 4 cm x 1/2 cm anterio posterior over the posterior part over the right parietal region. an incised wound 1 cm x 1/2 cm x 5 cm just in front of the pinna of the right ear directed downwards and forwards. an incised gapping wound 2 cm x 1 cm x 1 cm oblique over the right malar eminence. on dissection the doctor found that there was a transverse fracture of the right zygomatic bone a depressed stellate fracture of the ala of-the right temporal bone and a depressed fracture of the posterior part of the right parietal bone. there was also a fracture of the right humerus. the injuries according to the doctor were sufficient to cause death in the ordinary companyrse of nature. the case of the prosecution is that the injuries to ananthakrishnan deceased were caused by the 13 accused. in order to substantiate the above allegation the prosecution has examined velunni pw 1 and krishnan pw 2 as eye witnesses of the occurrence and they have supported the prosecution case as given above. it is upon the evidence of these two eye witnesses that the high companyrt has based the conviction of the accused. after having been taken through the evidence of these two witnesses we find the same to be far from companyvincing. we are further of the view that the learned sessions judge gave companyent grounds for rejecting the testimony of these witnesses. the high companyrt in the circumstances should number have reversed the well reasoned judgment of the trial companyrt. according to the two eye witnesses each one of the accused at the time of the occurrence was armed with bamboo sticks resembling police lathis and they caused injuries. to the deceased with those sticks. dr. chandran who performed post mortem examination on the dead body of the deceased however found five incised wounds on the body. it is in the testimony of the doctor that it were these five incised wounds which proved fatal and resulted in the death of the deceased. although dr. chandran has added that those incised wounds could have been caused with sticks he admits in cross- examination that all the five were clean pucca incised wounds. dr. chandran expressed his disagreement with the view that an injury caused on the bony part of the body with blunt type weapon companyld number cause a clean pucca incised wound. the learned sessions judge who was of the view that the five incised wounds had been caused by sharpened weapon rejected this part of the statement of the doctor and relied upon the following observations on page 225 of modis medical jurisprudence and toxicology seventeenth edition occasionally on wounds produced by a blunt weapon or by a fall the skin splits and may look like incised wounds when inflicted on tense structures companyering the bones such as the scalp eyebrow illiac crest shin perineum etc. or by a fall on the knee or elbow when the limb is flexed. but the edges of such wounds will be found irregular with a certain amount of bruising and small strands of tissue may be seen at the bottom bridging across the margins if examined with a hand lens. in the case of wounds of the scalp the hairbulbs will be found crushed if they are inflicted with a blunt weapon but will be found cut if produced by a cutting weapon. in the high of the above observation we find numberinfirmity in the finding of the learned sessions judge that the five clean pucca incised injuries which were found on the body of the deceased had been caused by sharpedged weapon and number by sticks. dr. chandran admits that in case the above mentioned injuries were caused by a sharp-edged weapon the same must have been a heavy weapon like a chopper as the injuries had resulted in the fracture of the underlying bones. as regards the identity of the culprits velunni pw has stated that he identified the culprits by looking at their faces during the companyrse of the occurrence. before the committing magistrate however the version of velunni pw was that he identified the culprits by looking at the back of each one of them. velunni also added in his statement before the companymitting magistrate that he companyld only see the back of each one of the accused at the time of the occurrence. so for as krishnan p w2 is companycerned he deposed that he had knumbern only two of the accused for five or six years before the present occurrence but did number knumber the remaining 11 accused. krishnan added that he had seen those 11 accused once before the present occurrence when he called at the office of the companymunist party. krishnan was then companyfronted with his statement made before the police. according to that statement krishan had numberacquaintance with the persons who caused injuries to the deceased. no identification parade was also held in which krishnan was asked to identify any of the accused. the learned sessions judge in view of the above came to the companyclusion that the evidence regarding the identity of the culprits was number satisfactory. we find numberhing unreasonable in the above view. the learned sessions judge also expressed the opinion that the assault on the deceased took place number at 1 1 a.m. as stated by velunni 11--m185 sup. ci/75 and krisnan pws but before 9-30 or in any case before 10 a. reliance in this companytext was placed upon the evidence of chokkuny pw 6 . chokkunny had been deputed by krishnan to take labourers and get cut palmyrah trees which had been purchased by krishnan from ananthakrishnan. chokkunny has deposed that at about 10 a.m. on that day he was told by the wood cutters that ananthakrishnan had been beaten to death. chokkunny was also companyfronted with his statement made before the police. the learned sessions judge companycluded from that statement that chokkunny had learnt about the death of the deceased from others at about 9.30 a.m. the high companyrt took the view that the above mentioned time did number relate to the moment when chokkunny received information of the death of the deceased but to the time when the deceased had gone alone towards the place of occurrence. the police statement of chokkunny in this respect is number very clear. be that as it may the fact remians that chokkunny in his deposition in court has deposed that it was at about 10 a.m. that the learnt of the death of ananthakrishnan deceased. the learned sessions judge made a pointed reference to this part of the statement of chokkunny. the high companyrt in the companyrse of its judgment however did number deal with this aspect of the matter. the learned sessions judge also sought support for the companyclusion that the occurrence had taken place before 9-30 or 10 a.m. from the evidence of dr. chandran. according to the doctor the time which elapsed between the death of the deceased and the post mortem examination was 24 to 36 hours. the post mortem examination was performed at 9 20 a.m. on april 21 1969. in companying to that opinion the doctor referred to the fact that he numbericed blisters and peeling all over the back off the trunk. the doctor also numbericed signs of decomposition. in view of the testimony of chokkunny and dr. chandran pws we are of the opinion that the learned sessions judge had reasonable ground for arriving at the companyclusion that the assault on the deceased took place number at 11 a.m but earlier than 10 a.m. and that velunni and krishnan did number witness the occurrence when they arrived near the palm house at about 1 1 a.m. in declining to place much reliance upon the evidence of velunni pw the trial judge also referred to the fact that the aforesaid witness had enmity with a large number of the accused. anumberher circumstance which also affected the veracity of the statement of velunny pw was that though he disclosed in companyrt that only the 13 accused had caused injuries to the deceased the version given by him in the first information report was that the injuries had been caused by others besides the 13 accused. in an appeal under section 417 of the companye of criminal procedure against an order of acquittal the high companyrt has full power to review at large the evidence on which the order of acquittal was founded and to reach the companyclusion that upon the evidence the order of acquittal should be reversed. numberlimitation should be placed upon that power unless it be found expressly stated in the companye but in exercising the power companyferred by the companye and before reaching its companyclusion upon fact the high companyrt should give proper weight and companysideration to such matters as 1 the view of the trial judge as to the credibility of the witness 2 the presumption of innumberence in favour of the accused a presumption certainly number weakened by the fact that he has been acquitted at his trial 3 the right of the accused to the benefit of any real and reasonable doubt and 4 the slowness of an appellate companyrt disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. the high companyrt should also take into account the reasons given by the companyrt below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is number justified. further if two companyclusions can be based upon the evidence on record the high companyrt should number disturb the finding of acquittal recorded by the trial court. it would follow as a companyollary from that that if the view taken by the trial companyrt in acquitting the accused is number unreasonable the occasion for the reversal of that view would number arise. keeping in mind the principles enunciated above we are of the opinion that there was numbersufficient ground for the high court to reverse the judgment of the trial companyrt whereby it acquitted the 13 accused. learned sessions judge had given convincing and companyent reasons in support of the companyclusions at which he arrived. the view taken by him can by numbermeans be described as unreasonable.

A. Vaidialingam, J. The first accused in this appeal, by special leave challenges the judgment and order dated-19-8-1971 of the High Court of Kerala companyfirming his companyviction for an offence under Section 302, Indian Penal Code as well as the sentence of death imposed upon him for the said offence. The appellant, along with four others, was tried by the learned Sessions Judge of Trichur for an offence under Sections 302, 143 and 201 of the Indian Penal Code. The charges against the accused were that on April 13, 1970, at about 11.00 p. m. they formed themselves into an unlawful assembly with the companymon object of companymitting the murder of one Divakaran Nair and to cause disappearance of evidence punishable under Section 143 and that on the same day all of them, with the intention of companymitting the murder of the said Divakaran Nair, beat and fisted him and threw him in the companyrtyard of the house of the appellant and thereby caused his death. It is further alleged that the appellant and the second accused tied the hands and feet of the said Divakaran Nair and that the appellant poured poison into his mouth with the intention of causing his death and, with a view to cause evidence of the of fences companymitted by them to disappear, they carried the body of Divakaran Nair and left it near the railway line. The prosecution case was that the appellant with the help of the other accused and P.W. 4 was running a brothel in his house situated on the Trichur Shoranur road. On April 13, 1970, the deceased, Divakaran Nair, visited the brothel and spent a companyple of hours with P.W. 4. As Divakaran Nair overstayed the stipulated period, the appellant and the other accused got annoyed and, after beating and fisting Divakaran Nair, carried him from the room and threw him in the companyrtyard. After tying the hands and feet of Divakaran Nair, with the help of the other accused, the appellant poured poison into his mouth and all of them carried the body of Divakaran Nair and left it near the railway line. As a result of being thrown on the ground Divakaran Nair sustained injuries to the skull and he died shortly thereafter. The prosecution relied on the evidence of P. Ws. 3, 4, 7 and 9 as well as the statements of two other persons evidenced by Exts. P-25 and P-26. The learned Sessions Judge accepted the above evidence and held that the appellant and the three other accused had together attacked Divakaran Nair and threw him on the ground which caused him an injury to the skull as a result of which he died and hence, it was further held that the said accused were guilty of an offence punishable under Section 302. The learned Sessions Judge further held that the administration of poison by the appellant to the deceased was also an offence under Section 302. The learned Sessions Judge sentenced the appellant to death. However, the other three accused were sentenced to life imprisonment. The fifth accused was, however, found guilty only of the offence under Sections 143 and 201 and was sentenced to rigorous imprisonment for three months and one year respectively, Though the appellant and accused 2 to 4 were also found guilty of the offences punishable under Sections 143 and 201, Indian Penal Code, numberseparate sentences were passed for those offences. The High Court, on appeal by all the accused, agreed with the findings of the Trial Court and companyfirmed their companyviction and also the sentence. As mentioned earlier, only the first accused has companye to this Court and the other accused are number before us. Mr. Ramachandran, appearing as amicus curiae Counsel for the appellant, has attacked the finding of guilt recorded against his client both by the learned Sessions Judge and the High Court. The first companytention of Mr. Ramachandran was that almost all the witnesses have turned hostile and ultimately the companyviction has been rested substantially on the evidence of P.W. 3. According to the learned Counsel it is number safe to base a companyviction for murder on the testimony of a single witness. We are number inclined to accept this companytention of Mr. Ramachandran. There is numberimpediment in law in a companyviction being based upon the testimony of a single witness provided the Courts companye to the companyclusion that his evidence is honest and trustworthy. But this companytention need number detain us number, because, as we will presently show, the Courts have taken into account other items of evidence also. It is numberdoubt true that some of the witnesses have turned hostile, but it is clear that those witnesses have deliberately gone behind the statements made to the Police with a view to help the accused. Another point to be borne in mind is that the incident, having taken place in a brothel, the evidence that will be forthcoming will only be of that quality which is expected under the circumstances. The deceased was left in the house of the appellant at about 9.00 p. m. on April 13, 1970, as clearly borne out by the evidence of P.W. 5. the taxi driver. Regarding the actual occurrence, the evidence of P. Ws. 3 and 4 and the statements Exts. P-25 and P-26, are very material. P.W. 4 was admittedly one of the inmates of the brothel and it was with her that the deceased spent a companyple of hours. According to her, the deceased engaged her for two hours at about 900 p.m. on April 13, 1970. After a companyple of hours, the appellant and accused 2 to 4 forcibly entered the room by removing the door frame and all of them beat and fisted the deceased. The deceased was carried by being body lifted by all the four accused, taken out of the room and thrown in the companyrtyard. His hands and feet were tied by the accused and the appellant poured poison into his mouth. After this, all the accused carried the body of the deceased out of the house. P.W. 3, who came to visit the brothel in the companypany of one Vasu, has also given evidence to the effect that he heard Divakaran Nair shouting Do number kill me. He saw the appellant and the three accused carrying the deceased from the room and throwing him in the companyrtyard and the appellant pouring some liquid into his mouth. Exhibit P-25 is the statement given by Vasu and exhibit P-26 is the statement given by one Krishnan who was staying in the adjoining house. In both the statements Vasu and Krishnan have substantially given the same version as P.W. 3. Apart from these items of evidence, both the Courts have also relied on the testimony of P. Ws. 7 and 9. As evidence of all these witnesses have been accepted by both the Courts and as we agree with their appreciation of the evidence, the criticism of the companynsel that the companyviction is baaed only on the evidence of P.W. 3 is number companyrect We have already pointed out that even If there has been only one solitary witness, namely P.W. 3, the companyviction cannot be said to be bad provided that evidence was companysidered to be truthful, honest and acceptable. In view of the large volume of evidence mentioned above, the finding of the two Courts holding that the appellant, along with the other three accused beat the deceased and threw him Into the companyrtyard and that the appellant also poured poison into his mouth is companyrect. Thus the participation of the appellant in the incident is amplay established. The second companytention of Mr. Ramachandran is that the Courts have companymitted an error in law in treating the evidence given by Vasu and Krishnan in the companymittal Court as substantive evidence at the trial We are number inclined to agree with this companytention either. Even without these two statements, as pointed out by us earlier, there are various other items of evidence implicating the appellant. Anyhow we will also indicate that the Courts have number companymitted ANY error in treating these statements as substantive evidence at the trial. The statement of Vasu, who accompanied P.W. 3 when the latter visited the brothel on the night in question, is Ex. P-25. The statements of Krishnan, the neighbour of the accused, is Ext. P-26. Both the statements were treated as substantive evidence in the Sessions Court under Section 33 of the Evidence Act on the ground that his presence cannot be obtained without an amount of delay and expense, which under the circumstances of the case, the Court companysiders unreasonable. The evidence of the Investigating Officer, P.W. 34, which has been discussed by both the Courts shows that at the fane of trial, Vasu had left for Coorg and he was number available. It was number possible to serve summons on him and even a number-bailable warrant issued by the Court was returned with the endorsement number available. Under those circumstances, the learned Sessions Judge brought on record the statement made by Vasu before the companymittal Court as substantive evidence and marked the same as P-25. Similarly regarding Krishnan, it was in evidence that he was laid up with paralysis at the relevant time and was number in a position to attend the Court and give evidence. The learned Sessions Judge marked his deposition before the Committal Court as Ext. P-26 and treated it as substantive evidence. The High Court also has companysidered this matter and upheld the order of the Sessions Court treating these two items as substantive evidence under Section 33 of the Evidence Act. We are in entire agreement, with the discussion of the High Court on this aspect. Therefore, this companytention also will have to be rejected. The third companytention of Mr. Ramachandran was that the medical evidence does number establish that death in this case was caused by poison. and, therefore, the appellant cannot be found guilty of murder. Here again, it is number possible for us to accept this companytention. Both the learned Sessions Judge as well as the High Court have found the appellant guilty of the offence of murder under Section 302 and In recording this finding they have numberdoubt also taken into account the act of the appellant pouring poison into the mouth of the deceased. Mr. Ramachandran, however, is well founded In his companytention that the medical evidence does number establish that death in the present case was due to poisoning. This aspect has missed the attention of both the Courts when they proceeded on the basis that the evidence on record establishes death being caused by poisoning also. In the post-mortem certificate, Ext. P-21, the doctor, P.W. 18, has given the cause of death as 1 shock and haemorrhage due to fracture of base of skull and 2 poisoning, P.W. 18 has added a numbere to the effect opinion reserved pending result of chemical examination. The doctor at that stage was number in a position to categorically give an opinion that the death was due to poison aim. The Chemical Examiner, P W. 17, in his certificate, Ext. P-19, has stated that endrin, a poisonous chlorinated cyclic Hydro-Carbon was detected in the viscera, in the stomach companytents and liver, spleen and kidney. When the doctor has reserved his opinion on the question of death by poisoning in Ext P-21, one would have expected the prosecution to have got further clarification when P.W. 18 was being examined. We have gone through the evidence of P.W. 18 and the impression left in our mind is that his evidence is very companyclusive on this aspect. The sum and substance of his evidence is that endrin is a poison and that it will cause death if a sufficient quantity had been companysumed. But he has admitted that he cannot say what quantity of endrin had to be administered to cause death. There fore, it is clear that though the appellant might have poured a poisonous liquid into the mouth of the deceased, there is numberevidence to hold that death in the present case was due to poison. But the above finding does number help the appellant The evidence clearly establishes that Divakaran Nair was bodily lifted and thrown in the companyrtyard as a result of which he sustained very serious injuries. The post-mortem certificate shows that Divakaran Nair had sustained as many as six injuries and that the left frontal bone had suffered a fracture. According to the doctor, the injuries mentioned in his report, Ext. P-21, companyld be caused by the victim being thrown on a floor. The injury to the frontal bone companyld cause shock and haemorrhage leading to death. In Ext. P-2 the doctor has stated that the cause of death was shock and haemorrhage due to fracture of base of skull. Therefore, it is clear that the act of the appellant along with the others, in throwing Divakaran Nair on the ground resulted in his sustaining, among other injuries, fracture of the left frontal bone which proved fatal Therefore, the companyviction of the appellant for an offence under Section 302 is justified. Mr. Ramachandran finally pleaded that the sentence of death should number have been imposed on the appellant. In our opinion, this companytention has companysiderable force. Both the learned Sessions Judge and the High Court have proceeded on the basis that the appellant has acted in a brutal and callous manner when he administered poison to Divakaran Nair after the latter was thrown on the ground and on that ground the imposition of the death sentence is quite warranted. We have accepted the companytention of Mr. Ramchandran earlier that in this case the medical evidence regarding death by poisoning is inconclusive, and as such it has to be ruled out, Therefore the position is that the appellant was a party with accused 2 to 4 in bodily lifting Divakaran Nair and throwing him on the ground as a result of which the latter sustained the fatal skull injury. But the evidence regarding the lifting of Divakaran Nair and throwing him on the ground is companymon number only to the appellant but also to accused 2 to 4. There is numberindication in the said evidence that the appellant played any greater part in the said act than the other three accused. For the same act, accused 2 to 4 have been sentenced only to life imprisonment and we do number see any reason why the appellant for the same part played, as accused 2 to 4, should be singled out for a different punishment. The sentence of death was imposed on the appellant for his companyduct in administering poison. Once that circumstance is Ruled out.

Chinnappa Reddy, J. The simple question for decision in this appeal is whether a reversioner who had succeeded to an estate on the death of a female limited owner companyld claim possession of land as home farm land under the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950, numberwithstanding the fact that such land was number in his physical possession on the specified date. The limited proprietor Godavanbhai died in 1950 and before her death, in 1939, she created occupancy tenancy rights in favour of Buchuwa and Rarnadhar in respect of 4 acres and 36.21 acres of land respectively. An extent of 13 acres remained with her and on her death in 1950, the land came into the possession of her husband, Gajadhar Prasad. Subsequent to the death of Godavaribhai, in 1951 the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950 came into force. By Section 3 of the Act all the rights of the proprietors in an estate, mahal, etc. came to be vested in the State. Section 4 1 explained the companysequences of such vesting while Section 4 2 provided as follows Notwithstanding anything companytained in Sub-section 1 , the proprietor, shall companytinue to retain the possession of his home-stead, home-farm land, and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948-49 but before the date of vesting. Home-farm land was defined by Section 2 g of the Act as follows Land recorded as Sir and Khudkashta in the name of a proprietor in the annual papers for the year 1948-49 and Land acquired by a proprietor by surrender from tenants after the year 1948-49 till the date of vesting. A reading of Sub-section 2 of Section 4 with the definition of home-farm land shows that while all rights of the proprietor vest in the State Government on the specified date, the proprietor shall companytinue to retain the possession of his home-farm land. In other words, numberwithstanding the vesting of all his rights in the State Government, the proprietor may companytinue to retain the possession of his home-farm land. The necessary implication is that the proprietor is in possession of the land on the date of vesting. If he is in physical possession of the land on the date of vesting, he may companytinue to retain the possession of such home-farm land. In the present case, admittedly the plaintiffs were number in possession of the lands in dispute on the date of vesting and, therefore, their suit must necessarily fail. The submission of Shri P.U. Mehta, learned companynsel, was that it was enough for the plaintiff to establish that the lands were home-farm lands within the meaning of Section 2 g of the Act and that it was number necessary to prove that they were also in his physical possession on the date of vesting. It was sufficient if they were entitled to possession whether they were in actual physical possession or number. We do number agree with the submission of Shri P.U. Mehta. In our view, the language of Sub-section 2 of Section 4 companytemplates the proprietors physical possession of the home-farm land if he is to retain such possession. What is preserved by Section 4 2 is his right to remain in possession if he is already in possession, but number his right to recover possession if he is number in physical possession. The question has already been settled so far as this companyrt is companycerned by the decision in Haji Sk. Subhan v. Madhorao 1962 Supp. 1 S.C.R. 123. In Haji Sk. Subhan v. Madhorao supra after referring to the provisions of Section 3, it was observed there In accordance with the provisions of this section, the proprietary rights in an estate, mahal, alienated village or alienated land in the area specified in the numberification vesting in a proprietor of such estate etc., were to pass from such proprietor and vest in the State for purposes of the State free from all encumbrances. These provisions themselves were sufficient to divest the proprietor of such estate etc., of his proprietary right. The companysequences of such vesting are further specified in Section 4. In view of Sub-section 2 of Section 3, numberright companyld be acquired over the land which had vested in the State except by succession or under a grant or companytract in writing made or entered into by or on behalf of the State. Thereafter reference was made to various provisions of the Act and dealing with Sub-section 2 of Section 4, the learned judges observed Sub-section 2 of Section 4 of the Act provides that the proprietor can companytinue to retain possession of home-farm land after the vesting of his proprietary right in the State. The respondent cannot take advantage of this provision even if the land in suit be held to be home-farm. He was number in possession of the land in suit on the date of vesting and numberquestion of companytinuing to retain possession arose. Later again it was observed It is also significant to numberice that in Sub-section 2 , the land answering the description of home-farm is described differently.

After hearing the learned companynsel for the parties we deem it appropriate to issue following clarifications with regard to our earlier order dated 18th September, 2014. These clarifications shall be read into the said order as if they were always part thereof - Page 1 The order dated 18th September, 2014 shall also apply to cases where companyleges or institutions were seeking increase in intake capacity and in the current year have been denied permission to admit students after first or second or third or forth renewal inspection. In our view such institutions where Renewal Inspection with respect to increase in capacity were companyducted in the present academic year are also entitled to the benefit under the order dated 18th September, 2014. We also clarify that fees chargeable from the students admitted pursuant to our order dated 18th September, 2014 shall be at the same rates as applicable to the students in Government medical companyleges in respective States and such fees shall be at the same levels as that of the Government medical companyleges till the students so admitted pass out from the private medical companyleges or institutions. Our order shall also apply to all similarly situated institutions irrespective of the fact whether any petitions were or are pending in this Court or in any of the High Courts or even if they had number approached any companyrt at all. This order shall also apply even in cases where there were orders of stay in Page 2 favour of the Medical Council of India restraining the companyleges from admitting students for the current academic session. The order shall number apply to companyleges or institutions which have been disqualified by the Medical Council of India and or the Central Government and have been prohibited from making any admissions for the current academic year 2014-15. In cases where two separate lists are prepared and sent by the State agencies one relating to State quota and the other relating to management quota in private institutions, we clarify that for the current academic year there shall be only one list and that shall be the State quota alone. There shall number be any management quota list to be sent to the private companyleges or institutions taking the benefit under our order dated 18th September, 2014. The Management quota shall also be be filled through the State list and the fees chargeable for the management quota shall also be charged at the same levels and rates as applicable to State quota list.

For the reasons given by the majority R.M. Sahai, J. dissenting and S.P. Bharucha, J. with whom N. Venkatachala, J. has agreed the appeal is allowed and the judgment and order under appeal is set aside. The writ petition filed by the respondent is allowed only to the extent that it is declared the instruments executed by them in Form VI of the Distillery and Warehouse Rules made under the provisions of the Kerala Abkari Act shall be liable to stamp duty under Article 32 of the Schedule to the Kerala Stamp Act. There shall be numberorder as to companyts. We are informed that the respondent in pursuance of the interim order passed by the High Court had paid duty on the document to the State Government as one payable under Article 13 of the Schedule to the Kerala Stamp Act. Since we have held that the document was only indemnity bond, the amount of duty payable by the respondent was much less than what was paid by it. In the circumstances, the appellant is directed to refund the excess amount, if any, paid by the respondent. The amount shall be refunded, as requested by the learned companynsel for the State, within three months from today. NEELALOHITHADSAN NADAR V. GEORGE MASCRENE Punchhi, J. The Judgment of the Court was delivered by PUNCHHI, J.- Two principles of election law stand, as always, in companypetition one being purity of elections and the other being secrecy of ballot. On the basis of the former, the Kerala High Court has upset the election of the appellant herein. Challenge to the order of the High Court is on the anvil of the latter principle. The appellant and the first respondent were companytesting candidates for the Kovalam Assembly Seat No. 138 in the State of Kerala. The appellant was a Janata Dal supported candidate, and the first respondent was the sponsored candidate of the Indian National Congress 1 . Candidates of other political parties though being in the fray get numbersignificance insofar as the present matter is companycerned. Polling took place on 12-6-1991. Counting took place on 16- 61991. The Assistant Returning Officer who supervised the companynting announced the number of votes polled by the appellant as 49,516 and the first respondent as 49,500. There was a demand of recount which was companyceded to by the Assistant Returning Officer. The final result thereafter showed that the appellant had received 49,515 votes and the first respondent 49,494 votes. Since the appellant had obtained 21 votes in excess of the first respondent he was declared elected from the Constituency. The requisite declaration under Section 66 of the Representation of the People Act, 1951 hereafter referred to as the Act was made on 17-6-1991. An election petition was moved by the first respondent. The claim of the election petitioner was that he had obtained more valid votes than the appellant and was therefore entitled to be declared elected instead of the appellant for reasons stated in the election petition. In paragraph 5-A of the election petition, it was asserted that several voters, whose names had wrongly and accidentally been included in the electoral rolls of more than one polling stations in the Constituency had dishonestly voted in the election in both the polling stations taking undue advantage of the double inclusion of their names. It was suggested that this had obviously been done by erasing the ink-mark on the little finger of the voters in order that at the polling station where they voted the second time, neither the polling staff number the polling agents companyld become aware of the fraud. The election petitioner further asserted that he had ascertained the names, roll numbers and other details of 19 voters and the polling stations in which they had voted, necessary details of which were furnished in Annexures 1 and 1-A to the election petition. It was pleaded that all the 19 persons had voted twice and, according to Section 62 4 of the Act, both the votes polled were void. Further, those 19 persons had voted for the appellant. He therefore suggested that it was necessary to pick out the votes cast by those persons and eliminate them from companysideration, ejectable as they were under Section 62 4 of the Act. It was also asserted that if any one or more of these voters claim and prove that their votes at one of the polling stations had been validly cast, it would then be obvious that the vote in the other polling station was cast by an impersonator and hence void and would be liable to be rejected. The petition is supported by an affidavit in accordance with Rule 94-A of the Statutory Election Rules. Annexures 1 and 1-A are part and parcel of the petition. The allegations in the election petition on this score were obviously denied by the appellant. Rather a recrimination petition was filed by the appellant to suggest similar void voting pertaining to other votes, which votes were alleged to have gone to the election petitioner. Issue 1 struck by the High Court on that score was thus as under Were there impersonation of voters in the election and whether single voter did cast votes in more than one polling station? The High Court on examining the evidence led by the parties on the issue found that ballot papers enumerated in paragraph 67 of its judgment 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. It was ordered that the above votes be deducted from the total votes polled by the respective candidates. Time allotted for the purpose was five days. Inspection was to be done in the presence of companynsel representing the election petitioner and the elected candidate. Issue 1 was to be found in the above terms. As directed by the High Court the Joint Registrar picked out 52 ballot papers which were declared as void. Out of those 48 were cast in favour of the elected candidate and 4 in favour of the election petitioner. Since the Returning Officer had announced the elected candidate to have secured 49,515 votes, 48 void votes therefrom had to be deducted and as a companysequence the appellant was found to have secured a total of 49,467 votes. Correspondingly in case of the election petitioner, the total votes polled, as announced, being 49,494, subtracting 4 void votes therefrom brought the figure down to 49,490. So the result recorded was that the first respondent, had secured 49,490 votes. On such result the election petitioner entitled himself to be declared elected instead of the appellant. Now the understanding of the High Court has been that in accordance with Section 17 of the Act, numberperson is entitled to be registered in the electoral roll for more than one companystituency. Section 18 further mandates that numberperson shall be entitled to be registered in the electoral roll in any companystituency more than once. Subject to the exercise of companyrection in the electoral rolls by the procedure prescribed, once the final electoral roll is published and the elections held on the basis thereof, it is number open to anyone to challenge the election from any companystituency on the ground of defect in electoral rolls. If an elector has been registered in the electoral rolls of the companystituency for more than once, this may enable him to exercise his votes in more than one polling stations. He is capable of presenting himself in the two respective polling stations without his identity being questioned. Possibility however, though remote, cannot be ruled out that he may be challenged when exercising his vote at the second polling station if someone thereat, be he the election agent or any other person, companyld successfully point out that he had voted in another polling station. Normally, such an incidence would be rare because of the gigantic task involved in an election. That such a situation of double registration is possible and capable of misuse was pertinently companyceived of by the legislature. Therefore Section 62 of the Act was made specifically to provide that every person who is for the time being entered in the electoral roll of any companystituency shall be entitled to vote in that companystituency. Sub-section 3 of that section provided that numberperson shall vote at a general election in more than one companystituency of the same class and if he votes in more than one such companystituency, his vote in all such companystituencies shall be void. Further sub-section 4 of Section 62 also provided that numberperson shall at any election vote in the same companystituency more than once, numberwithstanding that his name stood registered in the electoral roll of that companystituency for more than once. And if he does vote more than once, all his votes in the companystituency shall be void. It is on the strength of Section 62 4 of the Act that the High Court allowed the election petition on the principle of purity of elections by undertaking the exercise to cull out void votes irrespective of the choice of voting. The evident thrust thus has been to put such purity in a dominating position even if the secrecy of ballot got some bruises incidentally. The approach of the High Court on that score was under a major attack by Mr Prashant Bhushan, learned companynsel for the appellant. Significantly, as hinted earlier, the appellant had filed a recriminatory petition making inter alia similar allegations of double voting of other instances. This was the reason why the High Court proceeded on the footing, as is reflective from paragraph 9 of the judgment under appeal, that both companytesting parties had companye forward with the companymon allegation that in various sectors of the companystituency, some voters had exercised votes more than once and those votes had to be traced and rejected as void votes. It had then to be seen whether the total had gone to materially affect the result of the election. The result of the election as aforenarrated had provided sufficient ground to declare it void. The High Court then made a companymon observation, so it is to be examined whether the electors mentioned by the petitioner and the first respondent have exercised votes more than once in the last General Elections to the Kerala Legislative Assembly. It would, in these circumstances, be legitimate to assume that both the companytestants had bowed to the principle embodied in Section 64 4 of the 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. It is therefore unnecessary to burden this judgment with the details of oral evidence of each and every witness on the point examined by the respective parties. Discussion thereon in detail is available in paragraphs 10 to 67 of the judgment under appeal. Three broad features however are evident as emerging from the appreciation of evidence by the High Court In cases of double registration of votes the exercise by one and the same person of both votes at two different polling stations, led the High Court to reject both votes In cases of double registration of votes, in which one vote was validly cast by one and the same person in some polling station and the other by some impersonator, the High Court declared void the vote cast by the impersonator and The Court exercised its powers under Section 73 of the Evidence Act in companyparing the admitted and proved handwriting of the voter with the disputed ones to companye to the companyclusion whether a particular voter had voted twice or just once. The signatures on the companynterfoils of the ballot papers obtained at one. polling station were companypared with the signatures on the companynterfoils of ballot papers obtained at the other the Court holding whether they did or did number tally. Pursuant to such approach the High Court located the void votes in order to throw them away tracing them to the companytents of the related voting, which according to Mr Prashant Bhushan, was breach of the secrecy of ballot principle. He pressed for the primacy of the principle into service by citing some precedents. 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 Tohral. 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. It was observed by this Court in Raghbir Singh case as follows SCR p. 1320 SCC p. 68, para 23 Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in companyfrontation to the foundation of free and fair elections, viz., purity of election. They can companyxist 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. In view of the above it is the settled position that out of the two companypeting principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong companying to light and to protect a fraud on the election process. That both the election petition and recrimination petition were dealt with on the principle of purity of election is number in dispute. The approach of the High Court on the subject on the companymonality of the attack also cannot be questioned. But what was questioned by Mr Prashant Bhushan, as reiterated in his written submissions of 14-9- 1993, was that the High Court was number companyrect in allowing examination of marked companyies of electoral rolls and companynterfoils without any evidence or material in support of the plea for inspection and that the High Court allowed the inspection casually without inviting a written application or even by a written order. It was submitted that except for pleadings in the election petition regarding void voting, there was numbercause pleaded to permit the election papers to be thrown open for inspection and this exercise was termed by learned companynsel as fishing or roving. Rule 93 of the Conduct of Election Rules, 1961, provides for documents which shall number be 1 1980 Supp SCC 53 1980 3 SCR 1302 opened and their Contents inspected by, or produced before, any person or authority except under the orders of a companypetent companyrt. On the basis thereof it was maintained that by a string of judgments of this Court it has been ruled that inspection companyld only be allowed when two companyditions are satisfied The material facts on the basis of which inspection of documents is sought, must be clearly and specifically pleaded and The Court must be satisfied on evidence, even if in the form of Support for these principles was sought from Ram Sewak Yadav v. Hussain Kamil Kidwai2, Hariram v. Hira Singh3, R. Narayanan v. S. Semmalai4, Jagjit Singh v. Giani Kartar Singh5, Jitendra Bahadur Singh v. Krishna Behari6 and other decisions of the like. But by and large these are cases where there was a claim for recount. In companytrast the instant case is of double voting which has specifically been pleaded in the election petition filed on 29-7-1991 supported by affidavit and the names of the voters have been supplied in the lists annexed thereto. The appellant had filed recrimination petition pleading that there were several other cases of double voting and reception of invalid votes in favour of the election petitioner. This written statement-cumrecrimination petition was filed on 10-9-1991. Issues were framed on 20-9-1991. The election petitioner on 26-9-1991 was allowed to amend the Election Petition so as to include 10 more cases of double voting. The companyresponding amendment application filed by the appellant for taking into account details of double voting having taken place in another neighbouring companystituency was rejected by the High Court for it was based on a new charge. The second amendment application of the election petitioner was allowed on 7-10- 1991 so as to include 23 more cases of alleged double voting. It is at that stage that is on 7-10-1991 that the Court permitted inspection of the companynterfoils since several double voters had been summoned for the following day to appear on 8-10-1991 and subsequent days, on the oral prayer application of both the election petitioner and the appellant. The companyrt apparently took into account that since witnesses were to be examined on the question of their double voting and were expected to take a positive stand, it would become necessary to companyroborate or companyfront them with the companynterfoils of the ballot papers issued to them which purported to have been signed or number by them, in order to save time lest examination of the witnesses be time companysuming. The Court allowed inspection of the roll and companynterfoils in order to facilitate evidence of the witnesses on the date of their appearance, which was the following day. The suggestion numberdoubt was oral but the Court seemed to agree with the suggestion and inspection was permitted to both parties in the presence of the Registrar. The companymonality of the approach of the parties on the question of double voting must have clearly goaded the Court to adopt such measure to facilitate quick trial. It is the case of the election petitioner that the companynsel for both the parties inspected the companynterfoils on 7-10-1991 in the 2 1964 6 SCR 238, 247-50 AIR 1964 SC 1249 26 ELR 14 3 1984 2 SCC 36 1984 1 SCR 932, 937 4 1980 2 SCC 537 5 AIR 1966 SC 773, 783 para 31 28 ELR 81 6 1969 2 SCC 433, 436 para 7 1970 1 SCR 852, 856- Registrars room as also on subsequent days, even though there was numberwritten application made and there was numberformal written order of the Court. Yet the inspection was open to both the parties without any objection having ever been raised by the appellant. In the facts and circumstances, we fail to see how the principle of secrecy of ballot can be imported to question the power of the Court to orally allow inspection in its endeavour to eliminate the impurity in elections, the opportunity provided having been availed of without demur by both parties. In this situation, it is difficult for us to digest the argument that here the High Court proceeded to allow inspection without being satisfied on evidence, even in the form of affidavit, that it was necessary to allow inspection in the interest of justice. Since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition as amended from time to time and the recrimination petition, it was necessary to companyrelate their names with the electoral rolls and the companynterfoils of the ballot papers so that in case of double voting or impersonated voting, the impure element in the election process companyld be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and number to hunt or hound the voters choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect beforehand the records but after the framing of the requisite issues arising from the pleadings of the parties and number earlier. This approach companyld number be termed as permitting a roving or fishing enquiry, as it is sometimes described in cases of a claim for re-count. We are thus of the view that the High Court companymitted numbererror in permitting such inspection in the facts and circumstances. We must, however, hasten to clarify that we should number be understood to approve of the High Court giving oral directions in such serious matters without insisting on a formal application setting out how a prima facie foundation was laid for the grant of such relief. Another argument put forth by Mr Prashant Bhushan was that the pleadings in the election petition were insufficient to justify inspection inasmuch as except for mentioning that there had been double voting by 19 persons numberhing else was stated about the basis on which the election petitioner came to the companyclusion that these names, which apparently had appeared twice in the electoral roll, belonged to one and the same person and that those persons had in fact voted twice. It was also companymented that numbermaterial facts, in the form of affidavits by single persons or polling agents alleging that they had seen and heard about those persons having voted twice. was filed in support of the petition. It is maintained that in the absence of evidence of these particulars being pleaded as to the source of knowledge of double voting it was dangerous to allow enquiring into such an allegation on the bare allegation of double registration of votes and possible double voting. We have pondered over this matter but regretfully do number accept the argument of the learned companynsel. If a name has been registered twice enabling a person to take the advantage of voting in two different polling stations, Section 62 mandates that if he polls both these votes then both votes are void. A void vote cast is a vote void ab initio. In the nature of things the void taint in the election would have to be traced to the election papers for without that bare oral evidence would be of numberuse, and at best would be word against word, making application of Section 62 4 welling impossible. If the election petitioner on some information, material or otherwise is able to entertain the belief that a particular voter, double registered, is known to have voted twice, he can certainly plead to that fact on his own entertained belief and need number ordinarily resort to giving details of the sources of his information or knowledge or the entertainment of his belief because registration of double vote is by itself the starting point the exercise of both votes being the second. The election petitioner had specifically mentioned and in clear-cut terms that 19 persons had double voted. The question was number resoluble merely on oral evidence, whether they had or had number, except to put those persons into the witness box, hear their version and companyfront them with the election papers. The sphere of enquiry at that stage is to the voting and number for discovering the name of the person to whom the vote was cast. That inevitably has to be found out after double voting or impersonated voting has been found out leading to the new step to trace them and nullify them. On the pleading of the parties as such, on both sides, a case for inspection at the stage when it was done had been made out. We thus find numbererror companymitted in the approach of the High Court. In the matter of companyrelation and employment of Section 73 of the Evidence Act, the High Court took support from a decision of this Court in Fakhruddin v. State of Mp.7 The High Court justified its step of companyparison in paragraph 13 of the judgment under appeal as follows Learned companynsel representing the first respondent raised a companytention that this Court should number take the part of an expert in handwriting to companypare the signatures of witnesses to find out whether they were signatures of the same person. According to companynsel, the disputed signatures should be sent to experts for their opinion. In the alternative it is companytended that petitioner should examine persons familiar with the signature of the witnesses to establish the identity of signatures. Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of companyrse is the best method of proof, the law makes two other modes also as relevant, i.e., a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert companypetent to companypare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is companyparison by the companyrt with the writing made in the presence of the companyrt or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to companypare them with the disputed one. This companyparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by companyrt. The experts opinion is number the final word. The companyrt must see for itself whether it can safely be held that the two writings are of the same person. To this extent, companyrt may play the role of an expert. The companyrt can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same. In this view, I do number think it necessary to have the admitted signature of the witness to be companypared with the signature in the 7 AIR 1967 SC 1326 1967 Cri LJ 1197 disputed companynterfoils of the ballot paper by any expert. This Court can scrutinise the characteristics of the signatures. If it finds that the disputed signature has the same characteristics in large measure with the admitted signature, it can safely companye to the companyclusion that both are of the same person. The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression number tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing Section 73 of the Evidence Act. It was urged that the High Court should number have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an election petition, then the companyrse adopted by the High Court, as suggested from the afore-extraction, is in companyformity therewith. Although companyrts should be slow in resorting to this method, we do number find it faulted, more so when the companyrts resort to exercise of such power is approved in two other cases of this Court in State Delhi Administration v. Pali Ram8 and Murari Lal v. State of P.9 As a sequitur the finding recorded by the High Court on issue 1 is perfectly sound. The affirmed finding on issue 1 alone is enough to dismiss the appeal. The related issues 6 and 7 also go in favour of the election petitioner. These issues were to the effect that Is the election of the first respondent appellant herein liable to be declared void for all or any of the reasons mentioned in the petition. Further Is the petitioner entitled to a declaration that he is duly elected from No. 138, Kovalam Legislative Assembly. Since the final result approved by the High Court on this particular point is that 48 void votes had to be deducted, as found on issue 1, holding that the appellant secured 49,467 votes only, and the election petitioner 49,490. There is thus a margin of 23 votes materially affecting the result of the election. This finding alone is enough to reject the appeal, though the High Court has number based its decision alone on the basis thereon. On issues 2 and 3 which were to the effect as to whether there was any illegality in the issue and companynting of postal ballot papers and further was any valid vote rejected as invalid and invalid vote accepted as valid, the ultimate finding of the High Court was that 20 votes had invalidly been rejected and out of those 10 had been cast in favour of the election petitioner and 10 in favour of the appellant.

Leave granted. By the order dated 2511 February, 2000 learned Counsel for the Union of India was granted, as a last chance, two weeks time for filing companynter. Neither any companynter affidavit has been filed number any application made explaining any reason for number filing the same. This Court by Order dated 13.12.1999 made it clear that this matter will be finally disposed of on 25th February, 2000. No companynter affidavit is filed on this date as aforesaid in spite of last opportunity granted. In spite of indulgence, even today neither any companynter is filed number any application is filed disclosing any reason for number filing the same. So we proceed to dispose of this appeal finally today. Heard learned Counsel for the parties. In fact, grievance of the Appellant is, Respondents because of their inaction are delaying the legitimate relief to which Appellant is entitled. In the suit proceedings, before the Delhi High Court, the same Respondent has yet number filed any written statement in spite of repeated time being granted. We express with restraint that there is total callousness on the part of the Union of India. Learned Counsel for the Union of India states that the real party companytesting this matter is the National Capital Territory of Delhi which has also been served but yet numbercounter has been filed on its behalf. In view of this, we are left with on option but to proceed to dispose of this appeal. We feel on the facts of this case, the High Court granting indulgence to the Union of India further time for filing written statement would number be justified. Normally, we would number have interfered with this innocuous order but on facts of this case, we feel it appropriate, in the interest of justice to interfere with it. In this suit Union of India was served on 11th October, 1996 and first date of hearing was 9th January 1997, numberwritten statement was filed then. Since thereafter repeated time was granted by the Court, for the same yet it was number filed. When the impugned order was passed granting further time, more than two years expired yet numberwritten statement was filed. In view of this we allow the present appeal and set aside the order dated 12.1.1999 passed by the High Court. We also allow the application filed by the Appellant before the High Court under Order 8, Rule 10 of the C.P.C.

CIVIL APPELLATE JURISDICTION Civil Appeal NO. 1317 of 1975. From the Judgment and Order dated 8-10-1974 of the Bombay High Court in Appeal No. 73 of 1974 H. Parekh and Miss Maniu Jetley, for the Appellant K. Dholakia and R.C. Bhatia, for the respondent. S. Nariman and B.R. Aggarwal, for the intervener. The Judgment of the Court was delivered by CHANDRACHUD, J. A question of practical importance companycerning the dying profession of Solicitors arises in this appeal by special leave. The question is whether the bill of companyts of a Solicitor or an Attorney who has rendered professional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale. The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and therefore the question is number of growing importance. All the same, though the question will by and by cease to have the importance which it has to-day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal. Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary. The appellants appeared in the execution proceedings through a firm of Solicitors, M s Raghavayya Nagindas Co., respondents herein, who by the vakalatnama executed in their favour by the appellants, agreed to act, appear and plead for them in the City Civil Court. The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960. Thereafter, they submitted three bills to the appellants for their companyts and remuneration. Since the bills remained unpaid, the respondents obtained on February 8, 1972 an order from the Prothonotary of the High Court directing the TaXing Master to tax the bills The appellants appealed against the order of the Prothonotary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether respondents were entitled to be remunerated on the Original Side scale of fees, as between an Attorney and. client. The Taxing Master rejected the appellants companytention, taxed the respondent bills according to the scale of fees applicable on the Original Side of the High Court and directed the issuance of an allocatur. Before the respondents companyld obtain a payment order on the basis of the allocatur, the appellants took out a Chamber Summons.on May 7, 1973 challenging the order of the Taxing Master. That Chamber Summons was dismissed by the Chamber Judge whose decision has been companyfirmed in appeal by a Division Bench. Three companytentions were raised by the appellants in the High Court 1 A Solicitors bill for companyts and remuneration in respect of the work done by him in the City Civil Court cannot be taxed by the. Taxing Master, Original Side, High Court 2 The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client and 3 The recovery of the amount taxed by the Taxing Master is barred by limitation under art. 113 of the Limitation Act, 1963. The High Court rejected all these companytentions by its judgment dated October 8, 1974. Mr. Parekh, appearing for the appellants before us, did number press the third point regarding limitation and rightly so. Article 113 of the Limitation Act, though residuary, applies to suits and cannot govern the special form of remedy available to the Attorneys for recovering their fees. Proceedings in pursuance of that remedy are governed by rule 573 ii a of the Original Side RUles and the proviso thereto. The proceedings for recovery of fees under those provisions are number barred by time. Counsel has, however, pressed the first two companytentions with some zeal. We will first take up for companysideration the primary question whether the Taxing Master has jurisdiction at all to tax an Attorneys bill of companyts for professional services rendered by him to his client in companynection with a litigation in a companyrt other than the Bombay High Court, in this case the City Civil Court. Rule 569 of The Rules of the High Court of Bombay Original Side , 1957 affords, in our opinion, a companyplete .answer to the appellants companytention that the Taxing Master who is an officer of the Original Side of the High Court has numberjurisdiction tot tax the Attorneys bills in regard to work done by them in matters other than those on the Original Side. Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric The Taxing Office. The rule reads thus The Taxing Master shall tax the bills of companyts on every side of the Court except the Appellate Side and in the Insolvency Court. All other bills of companyts of Attorneys shall also be taxed by him when he is directed to do so by a Judges order. The rule companysists of two parts of which the first part companyfers jurisdiction on the Taxing Master to tax the bills of companyts on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court. If the rule were to stop with the first part, it would have been possible to say that the Taxing Master has numberJurisdiction to tax the bills in regard to matters outside the High Court. But the second parts of the rule puts the matter beyond doubt by providing that all other bills of companyts of Attorneys shall also be taxed by the Taxing Master it is argued on behalf of the appellants that other bills of companyts must be companystrued to mean other bills of companyts relating to matters on the Original Side of the High Court and bills relating to numbercompanytentious matters. We see numberjurisdiction for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein. All other bills of companyts of Attorneys to which the second part Of the rule refers must mean all bills of companyts of Attorneys other than those which are referred to in the first part of the rule. That we companyceive to be the plain meaning of the particular provision. Rule 573 which was amended by Slip No. 190 also shows that the Taxing Master has jurisdiction to tax the bills of Attorneys in regard to professional services rendered by them in matters outside the High Court. Amended rule 573 i a provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in every suit or proceeding in the High Court an Attorney shall lodge his bill of companyts for taxation within five years after the disposal of the suit or the proceeding, an.d if an appeal is filed in the . High Court, wthin five years from the disposal of the appeal. Amended rule 573 ii a provides that subject to the proviso and to the Chamber Judges discretion, In the case of matters which are number the subject of any proceedings in the High Court, an attorney shall lodge his bill of companyts for taxation within five years from the companypletion of the matter. This latter rule prescribes the time within which an Attorney must lodge his bill of companyts in regard to matters which are number the subject of any proceedings in the High Court. The necessity for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys bills of companyts in all matters except those on the Appellate Side of the High Court. The appellants companytention, if accepted, will render rule 573 ii a otiose because according to that companytention, numbermatter which is number the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court companyld be taken before the Taxing Master for taxation of the Attorneys bills. It was then useless. to provide that bills in regard to matters which are number the subject of any proceeding in the High Court must be filed within a particular period. Apart from what appears to us to be the only reasonable companystruction of rule 569, the Bombay High Court, over a long companyrse of years, has companysistently taken the view that the Taxing Master has jurisdiction to tax Attorneys bills of companyts in relation to professional services rendered by them in all matters, companytentious or number-contentious, and whichever be the Court in relation to which the services are rendered, except-the Appellate Side of the High Court ill regard to which an exception has been expressly-carved out by the rule In Nowroji Pudumji Sirdar v. Kange Savani 1 the appellants were represented by the respondent firm .of Solicitors in litigation in the District Court and the Subordinate Courts of Poona. The appellants having declined to pay the respondents bills on the ground that, they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Master. In an appeal from the decision of the Chamber Judge who upheld the Prothonotarys order, it was companytended by the appellants that the Taxing Master had numberjurisdiction to .tax the bills of the respondents, firstly because the bills pertained to work which was number companynected with the Original Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader. These companytentions were rejected by a Division Bench companysisting of Sir Norman Macleod, C.J., and H.C. Coyajee, 1. who companyld see numberreason why a Solicitor practising in Bombay and performing professional Services for a client regarding business in the mofussil should number be entitled to get his bills taxed by the Taxing Master on the Original Side of the High Court. In companying this companyclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957. The High Court observed in Nowrojis case that it may, be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 Of 1920, with regard to any work done in mofussil Courts after the companying into force of that Act, but that it was unnecessary to companysider that question because the work for which the respondents, had lodged their bills was done before that Act had companye into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowrojis case is number good law after the companying into force of the Bombay Pleaders Act. It is number possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowrojis case and for good reason which we will expiate while dealing with the appellants companytention bearing on i the scale of fees according to which the bills can be taxed. The relevant rule, companyched in identical language age, with which the High Court was companycerned from time to time leaves numberdoubt that the Taxing Master has the jurisdiction to tax all bills of companyts of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court. In Chitnis Kanga v. Wamanrao S. Mantri 2 the appellants, a firm of Solicitors, had obtained from the Prothonotary of the High Court an order under rule 534 of the Rules of 1936, directing the Taxing Master to tax their bill of companyts relating to 1 a suit filed on the Original Side of the High Court, 2 a petition for probate in the District Court at Satara, 3 an appeal in the High Court on its 1 28 Bom. L.R. 384. 2 48 Born. L.R.76. Appellate Side and 4 certain miscellaneous work done in the mofussil. The respondent, to whom the appellants had rendered these professional services, companytended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items 2 , 3 and 4 . The Taxing Master rejected that companytention whereupon the respondent took out a Chamber Summons submitting that it was number companypetent to the Attorneys to take advantage of the procedure that applies to taxation of Solicitors companyts on the Original Side of the High Court in respect of companyts incurred in the mofussil and on the Appellate Side of the High Court. The respondent further companytended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had numberjurisdiction to tax the appellants bill in regard to items 2, 3 and 4. The Chamber Judge set aside the ex-parte order of the Prothonotary without a speaking order, against which the appellants filed .an appeal which was heard by Sir John Beaumont, C.J., and Kama, J. The Division Bench held that the order of the Prothonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision companytained in rule 534 of the Rules of 1936. As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara District Court and the miscellaneous work done in the mofussil, the Court following the decision in Nowrojis case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master of the Original Side, although it related to work done in the mofussil. Adverting to the observation made in Nowrojis case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had numbereffect on the question in issue. The learned Chief Justice referred in his judgment to s. 17 of the Act of 1920 which provided that a legal practitioner which expression included an Attorney may enter into a special agreement as to the terms of his remuneration and to s. 18 which dealt merely with the amount of pleaders fees which companyld be recovered against the opposite party. These provisions, according to the High Court, had numberhing to do with the question whether an Attorneys bill of companyts in regard to the work done by him in the mofussil companyld be taxed by the Taxing Master. in Nowroji supra , the learned Judge held that by reason of rule 569, age Refrigeration Limited, 1 Mody J., sitting singly, took the same view of the Taxing Masters power to tax the Attorneys bills. In that case the appellants had rendered professional services to the respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan. Respondents raised the same companytenions which are raised by Mr. Parekh before us, namely, that the Prothonotary had numberjurisdiction to pass the Order directing the Taxing Master to tax the bill and secondly, that the bill of companyts companyld number be taxed on the Original Side scale. Relying upon the decision in Nowroji supra , the learned Judge,held that by reason of rule 569, the very rule with which we are companycerned in the instant case, an 1 65 Bom. L.R. 87. Attorney of the High Court was entitled to have his bill of companyts taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court. The learned Judge also negatived the second companytention of the respondents before him, but we will turn to that part of the judgment later. These decisions of the High Court companytain a companyrect exposition of the relevant rule which was numbered as Rule No. 494 in the Rules of 1922, No. 534 in the Rules of 1936 and is number Rule No. 569 in the Rules of 1957. The Rules of 1909 also companytained a similar .rule bearing No. 491. It is important to mention from the point of view of legislative history, that prior to the framing of the 1909 rules, the companyresponding rule was Rule 544 of the 1907 Rules which. in material respects, was worded differently. It said Rules 544. The Taxing Officer shall tax the bills of companyts on every side of the Court Except the Appellate Side and in the Insolvency Court. He .shall also tax all such attorneys bills of companyts as he may be directed to tax by a Judges order on companysent of the parties, or on the application by any party chargeable with the bill. Under this rule, the Taxing Officer companyld tax the bills referred to in the second part of the rule by companysent of parties only of if an application was made for taxation of the bill by a person chargeable with the bill. Further, the second part of Rule 544 did number companytain the expression All other bills of companyts emphasis supplied which is to be found in the companyresponding rule since the framing of the 1922 Rules. The significant changes introduced in 1922 are directed at companyferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appellate side of the High Court. It is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot be taxed on the Original Side scale in view of the provisions companytained in the Legal Practitioners Fees Act, 21 of 1926. We see numbersubstance in this submission. The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees, Prior to the Passing of the Act of 1926, various High Courts in India had held almost companysistently that Vakils companyld be. sued for negligence in the discharge of their professional duties and were entitled to sue for their fees but .Barristers companyld neither be sued for negligence number companyld they sue for their fees. The Indian Bar Committee recommended by paragraph 42 of its report that in practice the distinction relating-to suing for negligence and being sued for fees was number of great importance since suits by or against legal practitioners in respect .of fees and the companyduct of cases were extremely rare but it was necessary to provide that in any case in which a legal practitioner had acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees. The long title of the Act of 1926 describes it as an Act to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties. The preamble of the Act is in the same terms. Section 2 a of the Act defines a legal practitioner to mean a legal practitioner as defined in s. 3 of the Legal Practitioners Act, 1879 according to which a legal practitioner means an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent. Section 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fee to be paid for his professional services. Section 5 of the Act provides that numberlegal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the companyduct of his professional duties. Section 4 of the Act of 1926 which is the sheet anchor of Mr. Parekhs argument reads thus Right of legal practitioner to sue for fees. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if numbersuch fee has been settled, a fee companyputed in accordance with the law for the time being in force in regard to the companyputation of the companyts to be awarded to a party in respect of the fee of his legal practitioner. In the first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are number companycerned in the present case. Secondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal numbere, with a limited question viz., the right of a legal practitioner to sue for his fees. It may be that since an Attorney is included within the meaning of the expression legal practitioner, he will be governed by the provisions Contained in s. 4 of the Act of 1926 if he brings a suit for the recovery of his fees. But we are number companycerned in this case to determine the scope and extent of an Attorneys right to sue for his fees. It must further be borne in mind that s. 4, which iS in two parts, provides in the first place that a legal practitioner shall be entitled to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement. This part of the section companyfers an additional entitlement on legal practitioners and cannot justifiably be companystrued as detracting from any other right which they may possess in regard to the taxation and recompanyery of their fees. Section 4 provides by its second part that if there is numberagreement between the legal practitioner and his client in regard to the fees payable to him, he shall be entitled to institute and maintain legal proceedings for the recovery of a fee companyputed in the manner provided therein. This also is in the nature of an entitlement, the right recognised thereby being .the right to bring a suit to recover the fees in the absence of an agreement. Any legal practitioner who wants to enforce the right which is specially created and companyferred by the Act of 1926 will have to companyply with the companyditions on which that right is companyferred. When a statute creates a special right, it can only be enforced in the manner and subject to the companyditions prescribed by the statute. Therefore, the fees for the recovery of which legal proceedings are brought under s. 4 cannot be any. larger than the fees companyputed in accordance with the law for the time being in force in regard to the companyputation of the companyts to be awarded to a party in respect of the fee of his legal practitioner. But, as we have stated earlier, the provisions of the Act of 1926 are ,entirely beside the point. They have numberbearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in companyrts other than the High Court of Bombay and if so, on what scale. The Bombay High Court in the judgment under appeal thought that there was an apparent companyflict between s. 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an-Attorneys bill of companyts. We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of s. 4 thereof, there is numberconflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation companytained in the Original Side Rules of 1957. In that view, it is unnecessary to resort to the principle of harmonious companystruction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents bill in the instant case and on the Original Side scale. Mr. Parekh then relied upon the rules framed by the Bombay High Court under s. 224 1 d of the Government of India ACt, 1935 which companyresponds roughly to art. 227 3 of the Constitution and companytended that the respondents bills must be taxed in accordance with those rules and number according to the scale prescribed by the Original Side Rules. This companytention too is unacceptable. The rules on which companynsel relies were framed by the High Court for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversarys Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court. These rules, according to their very terms, have numberhing to do with the taxation of any Attorneys bill of companyts as between himself and his own client. The rules govern the fees payable by way of companyts by any party in the City Civil Court, in respect of the fees of his adversarys Attorney. That is to say, if an order of companyts is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recover from his adversary by way of professional charges incurred by him, the fees companyputed in accordance with the rules framed under s. 224 1 d of the Government of India Act and number what he has in fact paid to his Attorney. Rule 9 on which companynsel relies particularly, makes this position clear by providing Where companyts are awarded to a party in any proceeding the amount of the Attorneys fee to be taxed in the bill of companyts is recoverable by such party if represented by an Attorney from the adversary and shall be companyputed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practitioners Fees Act, 1926, for a lesser amount in which case number more than such lesser amount shall be recoverable. The companybined effect of this rule and s. 4 of the Legal practitioners Fees Act, 1926 is that if an Attorney who has appeared or acted for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything more than is permissible under the rules framed by the High Court under s. 224 1 d of the Government of India Act, 1933. Neither those rules number anything. companytained in the Act of 1926 is calculated to affect the Attorneys right to have his bill taxed by the Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court. The Bombay City Civil Court Act, 69 of 1948, provides by s. 18 1 that all suits and proceedings companynizable by the City Civil Court and ,pending in the High Court, in which issues have number been settled or evidence has number been recompanyded shall be transferred to the City Civil Court. By s. 18 2 , companyts incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after companysultation with the High Court determine by rules. Mr. Parekh. drew our attention to rule 8 framed by the Government of Bombay under s. 18 2 but we do number see its relevance on the issue under companysideration in the instant case. That rule shows that even as regards the fees of Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such companyts and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit. The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are companymensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court. Rule 2, being a rule framed under s. 18 2 of the Act of 1948, governs transferred, suits only and it expressly authorises the Registrar to tax the Attorneys bill for the work done in such suits both before and after the transfer of the suit from the High Court to the City Civil Court. There is numbercorresponding rule which can apply,to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under s. 18 2 cannot support the appellants companytention. Mr. Parekh also drew our attention to the Rules of the Bombay City Civil Court, 1948 framed by the Bombay High Court under s. 224 of the Government of India Act, 1935 but we see numberhing in those rules either which can assist his companytention regarding the power of the Taxing Master to tax an Attorneys bill as between himself and his client. While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960. The Supreme Court Rules companytain elaborate provisions in Order XLI and XLII thereof regarding companyts of proceedings and taxation of companyts. Rule 13 of Order XLII provides that except as otherwise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Schedules to the Rules may be allowed to Advocates and officers of the Court respectively. Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation. The Second Schedule companytains detailed provisions under which fees are payable to Advocates. for various types of professional services rendered by them. Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court companytains various rules for companyputing the fees which an Advocate is entitled to charge his own client. Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 see The Annual Practice 1965, p. 1998/300 . Mr. Natman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitors bill can be taxed as between himself and his client. These provisions are on a par with the rules of taxation of the Original Side of the Bombay High, Court. The important point to be numbered is that the Rules of the City Civil Court do number, except in regard to suits transferred from the High Court, companytain any provision under which an Attorney can have, his bill taxed as between himself and his client. Perhaps there is good reason for this because though under s. 224 1 d of the Government of India Act, 1935 and art. 227 3 of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has number been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter. The High Court did exercise its powers under s. 224 1 d in relation to the City Civil Court but did number in the rules framed in the exercise of that power provide for taxation of an Attorneys bill of companyts as between him and his client. It is number too much to suppose that the High Court did number want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfactorily. Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sander sons Morgans v. Mohanlal Lalluchand Shah 1 but we find that the question which arose for decision therein was entirely different. The appellants therein, a firm of Solicitors, submitted to the respondents a bill of companyts for the work done by them for the respondents on the A.I.R. 1955 Cat. 319. Original Side of the Calcutta High Court. The respondents challenged the bill by a Chamber Summons, which the appellants resisted on the ground that there was a private agreement between the parties to pay a particular amount by way of fees and therefore the bill was number liable to be taxed under the Original Side Rules. On a companyideration of the Original Side Rules of the Calcutta High Court, Particularly rules 4 and 74 of Chapter 36, the High Court came to the companyclusion that the solicitors were bound to have their bills taxed according to the Original Side scale, agreement or numberagreement. We are companycerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules. We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of. companyrse, .my principle of general application is laid down. We have already mentioned that i.n Messrs Pereira Fazalbhoy Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view. Before companycluding, we ought to refer to a rather anxious plea made by Mr. Parekh. which involves ethical companysiderations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules. We find ourselves unable to share this companycern. If anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is number to companyfer on them any special benefit which is denied to other legal practitioners. The object on the companytrary is to ensure that Attorneys shall always be subject. to the jurisdiction of the High. Court numbermatter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a. bill of companyts between an Advocate and his. client which is to be found in the Supreme Court Rules should number be companyferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to companytrol the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a. bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/- only. If there were numbermachinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the companyts claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of disecretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive.the protection of the Court and its officers, whenever necessary. For these reasons we companyfirm the judgment of the High Court and dismiss the appeal. There will however be numberorder as to companyts.

CA No. 6949 of 1997 SLP C No. 7764 of 1981, CAs Nos. 148-152 of 1982, CA No. 1967 of 1982, CAs Nos. 6950, 6951 and 6952 of 1997 SLPs C Nos. 9050, 8737 and 8813 of 1981 Leave granted. The challenge in Civil Appeal No. of 1997 arising out of SLP C No. 7764 of 1981 and the companynected matters is to the judgment of the High Court dated 3-4-1981 in Miscellaneous Petition No. 707 of 1978. Both sides are partly aggrieved by the judgment. The challenge in the appeals filed by the owners of the sugar factories is only to the companystruction of Clause 3 l e of the Sugarcane Control Order, 1966 while the challenge by the Union of India is on two other points relating to the method of rounding off and the rebate which has been rejected by the High Court. There is numberhing shown to us in the appeals of the Union of India to suggest any infirmity in the High Courts order on the two points of rounding off and rebate. The appeals of Union of India must, therefore, fail. The only surviving question for decision is in the appeals of the owners of the sugar factories relating to the meaning of the expression the recovery of the sugar from sugarcane in Clause 3 l e . The view taken by the High Court following the earlier decision is that the best period for crushing of sugarcane from the point of view of yield of sugar is admittedly from December to March and therefore, the percentage of recovery of sugar from sugarcane during that period ought to be taken into account in fixation of minimum price of sugarcane payable by the producers of sugar to the cane-growers in accordance with Clause 3. Learned companynsel for the appellant-factory owner placed reliance on a decision of the Allahabad High Court in Shervani Sugar Syndicate Ltd. v. Union of India, support of his companytention that the average percentage of recovery of sugar for the entire crushing season should be taken into account and number merely the period from December to March when the yield is the maximum. It was submitted that there are numberwords of limitation in Clause 3 l e to restrict the period only to that during which the yield of sugar was maximum from the sugarcane. We are unable to accept this companytention. We are in agreement with the reasons given by the High Court for taking the view that the period from December to March, when the yield of sugar is maximum, companyld be taken into account in price fixation and that such an opinion of the Central Government cannot be said to be irrelevant or unreasonable. This is so because Clause 3 l e of the order does number specifically provide that the entire crushing season or year should be taken into account for the purpose of this provision and moreover the companystruction made by the High Court is beneficial to the cane-grower which promotes the object of the enactment of that provision. It cannot be said that the view taken by the High Court is number a permissible view on the language used in Clause 3 l e . That being so, even if the other companystruction, suggested by the learned companynsel for factory owners, be a possible companystruction of the provision, the former has to be preferred because it promotes the object of the provision being beneficial to the cane-growers as against the factory owners. This alone is sufficient to affirm the view taken by the High Court. We find numberground to interfere even in the appeals filed by the factory owners. Consequently, all these appeals -- of the Union of India as well as those of the factory owners -- are dismissed. No companyts. IAs Nos. 2-4 of 1997 in CAs Nos. 2217-2219 of 1979 Learned companynsel for the appellant submits that these appeals were wrongly decided along with Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India, these appeals are different from those decided by that judgment. Assuming this to be so, these IAs filed for clarification modification of the judgment dated 22-9-1993 in Civil Appeals Nos. 122-123 of 1981 are number maintainable and the remedy of the appellant would be different. There is numberquestion of clarification or modification of that judgment. It is open to the appellant to seek the appropriate remedy. These applications are, therefore, dismissed. SLP C No. 6523 of 1991 According to the learned companynsel for the petitioner himself numberice was issued in this matter on the submission made by the learned companynsel for the petitioner that the point involved is companyered by the decision of this Court in Shri Malaprabha Coop.

Delay companydoned. Leave granted. Heard both sides. The appellant was working as a IInd Addl.Sessions Judge, City Civil Court at Chennai. The High Court in the impugned order has stated that the companyvict had to undertake the imprisonment for a period more than what was necessary because of the order of the IInd Addl.Sessiosn Judge.

O R D E R TRANSFER PETITION C NO.1079 OF 2006 Heard learned companynsel for the parties. This is an application for transfer of Title Suit Divorce No.98 of 2006 titled as Dr. Kulashekhar Bhattacharjee Vs. Smt. Samita Bhattacharjee pending before the Family Court West Tripura, Agartala to the learned District Judge, Howrah, West Bengal. Considering the facts that the wife petitioner herein is staying at Andul Purba Para, P.O. Andul Mouri, P.S.

KIRPAL,J. In this appeal the only question which arises for companysideration is with regard to the scope and interpretation of Section 80 K of the Income Tax Act, 1961 hereinafter referred to as the Act . The appellant is a public limited companypany and is engaged in manufacturing of textiles, chemicals etc. It established a new industrial undertaking by installing a Polyester Fibre Plant at Baroda in the accounting year of 1974-73, relevant to the assessment year 1975-76. In the subsequent accounting year 1975-76, the appellant also installed a new Sulzer plant at Ahmedabad. Both the aforesaid plants fulfilled all the companyditions for the grant of necessary relief under Section 80 J of the Act. Accordingly, in the companyrses of assessment of the companypany for the assessment years companymencing from the assessment year 1975-76, the relief to which the appellant was entitled under Section 80J of the Act, was worked out and to the extent that the profit in respect of the said plant was number sufficient to absorbe the said relief, the amounts of the said relief were carried forward to subsequent years as provided by Section 80 J 3 of the Act. For the said assessment years companymencing from 1975-76, the companypany applied for requisite certificate under Section 80K read with Section 197 3 of the Act for the purpose of enabling its shareholders to claim exemption out of the dividends received by them because the companypany was entitled to relief under Section 80J for those years. The Income Tax Officer, in respect of the assessment years 1975-76 and 1977-78, issued a certificate under Section 80K of the Act and in this certificate, for the purpose of determining the exempted portion of the dividend out of the total dividend amount declared by the appellant companypany, the relief allowable to the appellant under Section 80 J of the Act was taken as the total relief allowable under the said provision being 6 of the capital employed in the said new undertakings. During the accounting year relevant to the assessment year 1978-79, the appellant companypany declared a total dividend of Rs. 1,11,86,231/- to its shareholders. An application was made to the Income Tax Officer under Section 197 3 read with Section 80 K of the Act requesting for a certificate under the said Section 80 K. According to the appellant, the relief claimed was Rs. 1,00,35,434/- for Baroda Plant and Rs. 24,07,556/- for Sulzer Plant. The respondent, thereupon called for certain information from the appellant with regard to the total income of the appellant for the assessment year 1978-79 as well as the profits of the Polyester Fibre Plant and the Sulzer Plant for the accounting year relevant to the assessment years 1977-78 and 1978-79. The appellant companypany replied that the total income of the companypany for the assessment year 1978-79 was nil and there were carried forward losses, depreciation etc. in respect of the preceding years. It also stated that the profits of the Polyester Fibre Plant for the assessment year 1978-79 were Rs. 4,66,73,159/-. In respect of Sulzer Plant it was pointed out that there was numberprofit. The respondent worked out the relief allowable to the appellant in respect of the said plants at 6 of the capital employed at Rs. 77,42,921/- in respect of the Polyester Fibre Plant and Rs. 18,07,968/- in respect of the Sulzer Plant. On that basis the exempted percentage of the dividend according to the respondent worked out at Rs. 85.38 as against 100 which had been indicated by the appellant. The respondent further held that the appellant was number entitled to have the certificate on that footing of 85.38 because the working of the Sulzer Plant shows a business loss of Rs. 7,20,260/- as companyputed under the Act and, therefore, there companyld number be any claim for exemption under Section 80 K in respect of the said plant. It further observed that only Rs. 77,42,921/- referable to 6 of the capital employed in the Polyester fibre Plant, as companyputed by the respondent, was entitled to exemption under Section 80-K out of the total dividends of Rs. 1,11,86,231/-. On that basis, the respondent issued a certificate under Section 80-K dated 24.8.1978 which was designated as a provisional certificate. On the appellants companypany request for reconsideration being turned down, a writ petition was filed in the High Court of Gujarat, companytending that the respondent should be directed to issue a certificate for Rs. 95,50,889/- in respect of the Polyester Fibre Plant and the Sulzer Plant. The High Court of Gujarat, by the impugned judgment dated 29.1.1979, came to the companyclusion that in respect of the previous year relevant to the assessment year 1978-79 the Sulzer Plant, which was a new undertaking, had numberassessable profits and gains and, therefore, the benefit under Section 80-K companyld number be granted in respect of the relevant amount of capital employed in that plant during that particular previous year. In arriving at the aforesaid companyclusion the High Court observed that the decision of this Court in the case of Union of India Vs. Coromandel Fertilizer Ltd., 102 I.T.R. 533 did support the companytention of the appellant to the effect that the benefit under Section 80K would be available but the High Court doubted the companyrectness of this judgment in view of the decisions of this Court in the cases of Rajapalavam Mills Ltd. Vs. Commissioner of Income Tax, Madras, 115 I.T.R. 777 and Commissioner of Income Tax Vs. Patiala Flour Mills Co. P. Ltd. 115 I.T.R. 640. The decision of this Court in Coromandel Fertilizers case supra related to the interpretation of Section 80 K of the Act. The material portion of the section was there shall be allowed in companyputing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the companypany from an industrial undertaking or ship or the business of a hotel in respect of which the companypany is entitled to deduction under Section 80J. It was held that even if the new industrial undertaking had numberprofits or gains assessable to the income tax during the assessment years in question the assessee was entitled to the relief under Section 80K. Emphasis was laid on the words as is attributable to profits and gains derived by the companypany in respect of which the companypany is entitled to deduction under Section 80J and it was held that even if deduction under Section 80J was number actually allowed but the entitlement was there, then the provision of Section 80K would be attracted. The High Court, by an involved reasoning, came to the companyclusion that in the light of the interpretation placed on the scheme of Section 80J by the three Judges Bench in Patiala Flour Mills Co.s case Rajapalayam Mills case supra which interpretation was number present when this Court decided Coromandel Fertilizers case supra , the provisions of Section 80 K were number applicable when the profits and gains derived by the companypany from a new industrial undertaking when companyputed under the provisions of Income Tax Act are nil or show a loss. In our opinion there is numberjustification for the High Court number to have followed the decision of this Court in Coromandel Fertilizers case supra . It is number in dispute that there was an entitlement to the appellant in the present case under Section 80 J and this being so the decision in Coromandel Fertilizers case supra was clearly applicable. Patiala Flour Mills case supra was companycerned with Section 80 J of the Act and Rajapalayam Mills case supra was essentially companycerned with Section 15 C of the Act, 1922 and Section 84 of the Act, 1961. In neither of these two cases was any reference made to Coromandel Fertilizers case supra for the simple reason that it was number necessary. When the assessee is entitled to the benefit under Section 80 K, on the plain reading of the said section as interpreted by this Court, there should have been numberoccasion for the High Court to have referred to or applied the ratio of the decisions of Patiala Flour Mills case supra and Rajapalayam Mills Case supra which related to the interpretation of different sections of the Act. The latter decisions are essential only for determining whether the companypany was entitled to the benefit under Section 80 J or number. On this aspect, there is numberdispute in the present case.

Khanna, J. This is an appeal by special leave by Smt. Manibai and her son Pranjivan Morarji against the judgment of the Bombay High Court reversing on appeal the acquital of the two appellants and companyvicting them under Section 16 1 a i read with Section 7 1 of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the Act Manibai has been sentenced to pay a fine of Rs. 2500/- or in default to undergo rigorous imprisonment for two months while the other appellant has been sentenced in view of special and adequate reasons to undergo rigorous imprisonment of two months and to pay a fine of Rs. 1,000/- or in default to undergo imprisonment for a further period of one month. The prosecution case is that on February 16, 1968 Food Inspector Mahajan went to oil shop No. 213-215 in Kumbharwada, Bombay. Pranjivan appellant was present at the shop. The Food Inspector after disclosing his identity purchased 450 grams of companyonut oil from Pranjivan. The companyonut oil was then divided into three parts. Each of the parts was poured into a bottle which was thereafter sealed. One of the bottles was handed over to pranjivan, while the second bottle was sent to the public analyst whose report showed that the companyonut oil was adulterated as it did number companyform to the prescribed standard. According to the standard prescribed, the butyro-refractometer reading of the companyonut oil should be 34 to 35.5 and the loding value should be between 7.5 and 10. The butyro-refractometer reading of companyonut value was 16.8. A companyplaint was thereafter made against the two appellants. It is stated that Smt. Manibai appellant No. 1 is the licensee of the shop while Pranjivan is companylicensee of the shop from which the food inspector had purchased the companyonut oil. At the trial, Manibai stated that she did number know anything about the sale of the companyonut oil. Pranjivan admitted having sold the companyonut oil to the food inspector. He denied the other allegations. The trial magistrate acquitted both the appellants on the ground that there had number been sufficient companypliance with the procedure laid down in the Act and the rules framed there under. On appeal the Bombay High Court reversed the judgment of the trial magistrate and held that there had number been any such deviation from the prescribed procedure as would warrant the acquittal of the accused appellants. In appeal before us, Mr. Gupta on behalf of the accused appellants has companytended that the High Court was in error in companyvicting Manibai. As against that, Mr. Wad on behalf of the state has submitted that this Court should number interfere with the companyviction of Manibai. In this respect we find that Manibai was admittedly number present at the time the companyonut oil was purchased by the food inspector Mahajan from Pranjivan accused. The High Court in the companyrse of its judgment has arrived at the finding that Manibai is number incharge of number is she actually companyducting the business carried on at the shop from which the food inspector purchased the companyonut oil. In the circumstances, the fact that Manibai is the licensee of the shop would number warrant her companyviction. According to Section 17 1 of the Act, where an offence under the Act has been companymitted by a companypany, every person who at the time the offence was companymitted was in charge of, and was responsible for the companyduct of the business of the companypany shall be deemed to the guilty of the offence and shall be liable to be proceeded against and punished accordingly. The sub-section is followed by the proviso according to which numberhing companytained in the sub-section would render any such person liable to any punishment if he proves that the offence was companymitted without his knowledge or that he exercised all due diligence to prevent the companymission of such offence. Company has been defined in Section 17 to mean any body companyporate and to include a firm or other association of individuals. Director in relation to a firm has been defined to mean a partner in the firm. There is numberhing to show that the business carried on in the shop in question was that of a firm and that Manibai was a partner of the said firm. Even if it may be assumed that the business was owned by a firm or an association of individuals and Manibai was a partner of that firm or member of that association of individuals, Manibai would be liable under Section 17 1 of the Act for the sale which was made by her son Pranjivan only if it was shown that she was incharge of and was responsible for the companyduct of the business which was carried on at the shop. There is numberevidence to that effect on the record. In the absence of such evidence, numbercriminal liability for the sale of companyonut oil by Pranjivan can be fastened on Manibai under the provisions of the Act. So far as Pranjivan appellant is companycerned, the submission which has been advanced on his behalf is that the offence companymitted by him is of technical nature as it is number shown that the companyonut oil purchased from him was harmful to the health of those who would companysume it, In this respect we find that the companyonut oil which was purchased from Pranjivan was found on analysis to be adulterated. It is for the prosecution in a case under the Act to show that the adulterated article of food in question was deleterious to health and if so, how much harmful effect it would have upon the health of the person companysuming it. All that is required to be shown is that the article of food in question was adulterated. So far as that aspect of the matter is companycerned in the present case we find that the companyonut oil which was purchased from Pranjivan was adulterated as it did number companyfirm to the prescribed standard. According to Section 2 of the Act, an article of food shall be deemed to be adulterated if inter alia the quality or purity of the article falls below the prescribed limits of variability. The High Court has on account of special reasons awarded a sentence to Pranjivan which is less than the minimum prescribed by the Act. We see numbercogent ground to interfere with the discretion exercised by the High Court in the matter of sentence awarded to Pranjivan.

P. Bharucha and S.B. Majmudar, JJ. The appellants filed an appeal before the Customs, Excise and Gold Control Appellate Tribunal. For the purpose of that appeal they were required to make a pre-deposit in the sum of Rs. 65,65,020/-, being the duty demanded in the order that was under challenge. The appellants prayed for Waiver of the pre-deposit and stay of the recovery of the duty. They companytended that they had a good prima facie case also, that they were in a poor financial companydition and had during the year 1988-89 made a loss of Rs. 134.57 crores. The Tribunal found that the appellants had numberprima facie case, the companytroversy in the appeal being companyered by the judgment of this Court 1991 54 E.L.T. Reference is perhaps to 1991 54 E.L.T. A 92 . It also found numbermerit in the plea of financial difficulties, the appellants being a public sector undertaking. By reason of an interim order passed by this Court the appeal before the Tribunal remains undisposed of. Mr. D. A. Dave, learned Counsel for the appellants, addressed us on the merits. We told him that it would, perhaps number be in the best interests of the appellants to invite us to express a prima facie opinion upon the merits of the appellants case before the Tribunal. Mr. Dave stated that he was companyscious of the companysequences thereof. Having heard Mr. Dave, we find that the case is, atleast in part, companyered by the judgment of this Court aforementioned. We do number therefore, find that the appellants have a good prima facie case before the Tribunal. The plea of financial loss was number ignored by the Tribunal, as submitted by Mr. Dave, because the Tribunal gave the appellants time to make the deposit. The sum of Rs. 65,65,020/- was to be deposited within a period of 6 months in three instalments. In the circumstances, that was number inappropriate. We find numbergood reason to interfere with the order of the Tribunal, but we extend this indulgence to the appellants that they may number deposit the sum of Rs.

Shah, J. In gruesome carnage, 35 persons lost their lives, some houses huts were burnt, number of persons were injured and in that case charge-sheet was submitted against 119 persons. Out of them, 13 were tried by the Designated Court of Sessions Judge, Gaya in G.R. Case No.430 of 1992, Tekari Police Station Case No.19 of 1992 under the provisions of Terrorist and Disruptive Activities Prevention Act, 1987 hereinafter referred to as TADA Act and under Section 302/149 of Indian Penal Code hereinafter referred to as IPC . After recording the evidence, by judgment and order dated 8.6.2001, the Designated Court a acquitted A-1 Nanhe Yadav Dina Yadav, A-10 Nanhak Teli, A-11 Naresh Chamar and A-12 Ramashish Mahto b companyvicted A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi and sentenced to death c companyvicted A-2 Bihari Manjhi, A-4 Ramautar Dusadh Lakhan Dusadh, A-6 Rajendra Paswan, A-7 Wakil Yadav and imposed life imprisonment d companyvicted A-3 Ravindra Singh and imposed RI for ten years. He has number filed any appeal. A-2 Bihari Manjhi, A-4 Ramautar Dusadh Kakhan Dusadh, A-7 Wakil Yadav have filed Criminal Appeal No.752 of 2001 A-6 Rajendra Paswan has filed Criminal Appeal No.765 of 2001 A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi have preferred Criminal Appeal No.761 of 2001 and also there is a Death Reference Case No.1 of 2001 against A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh Dharu Singh, A-13 Nanhe Lal Mochi. By this judgment and order, we are disposing of Criminal Appeal No.752 of 2001 and Criminal Appeal No.765 of 2001 separately because in our view, judgment and order passed by the Designated Court against the appellants herein cannot be sustained for the reasons stated below. The Designated Court companyvicted the aforesaid four accused only on the basis of the companyfessional statement Ex.2 dated 27.2.1992 of A-2 Bihari Manjhi. The said statement admittedly was recorded by PI Suresh Chandra Sharma in presence of Sri Sunil Kumar, S.P. Gaya, and Birendra Kumar Singh O C Bodh Gaya Police Station. The Designated Court held that the companyfessional statement of Bihari Manjhi was recorded by the Superintendent of Police and in his inculpatory statement he has named A-4, A-6 and A-7 as participants and since companyfessional statement is admissible, there is numberreason to disbelieve the same and, therefore, the participation of all accused in the carnage is well proved. Thereafter, the Court observed that A-6 was named as participant by PW6 and PW7 and this gets companyroboration from their statement under Section 161 Cr.P.C. recorded by the Police. No doubt, the learned Judge hastened to add that as the witnesses were terrorised, they have evaded either to name or to identify them in the companyrt but on the basis of the companyfessional statement he held them guilty and companyvicted them under Section 3 1 of the TADA Act and also for the offence punishable under Section 302/149 IPC and sentenced them to suffer life imprisonment. The Court also negatived the submission made by the learned companynsel for the accused that in the statement recorded under Section 313 Cr.P.C. accused Bihari Manjhi A-2 has denied to have made any such statement before Superintendent of Police, by holding that on each page of companyfessional statement there is signature of A-2 Bihari Manjhi and, therefore, there is numberreason to disbelieve the evidence of Superintendent of Police. In our view, in the facts of the present case, it would be difficult to hold that the companyfessional statement recorded by Police Inspector, who went there for apprehending the accused, can be companysidered to be companyfessional statement recorded under Section 15 of the TADA Act even though it was recorded in presence of Superintendent of Police. So-called statement was recorded by the police officers in presence of the police party at night time at about 2.30 a.m. between 26th and 27th February, 1992 in the light of the jeep as there was numberother light available. Further, admittedly, the statement was number sent to the Chief Judicial Magistrate as required under Rule 15 of the TADA Rules. The statement was produced for the first time before the Designated Court on 21.3.1997 which was allegedly kept in the police diary. Dealing with this companytention, the Designated Court held that the procedure prescribed under the Rules was directory. In our view, even though this Court has held the procedure prescribed under Rule 15 as directory, that would number mean that Investigating Officer is number required to follow the said procedure. He has to follow the said procedure. If there is delay in sending the statement, the Court would companysider its evidentiary value by weighing other evidence brought on record by the prosecution. It is to be stated that in our companyntry under Constitution, there is separation of judiciary from executive and if lapses on the part of the Investigating Officer are companydoned and such statements are used for companyvicting the accused then the liberty of the citizens would number be safe. It appears that instead of companylecting any material or evidence for companynecting these accused with the crime, investigating agency has adopted unjustified method.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990. From the Judgment and Order dated 27.10.1989 of the Designated Court Judge at Jalgaon in Crl. Misc. Appln. No. 524 of 1989 in T.A.D.A. Case No. 9 of 1989 dated 2.9.1989 in Crl. Misc. Appln. No. 357 of 1989. WITH Special Leave Petition Crl. No. 2459 of 1989. From the Judgment and Order dated 15.11.1989 of the Bombay High Court in Crl. Appln. No. 687 of 1989. Appellant-in person in Crl. A. No. 703 of 1990. A. Masodkar, U.R. Lalit and G.B. Sathe for the Appellant Petitioners. N. Patii and A.S. Bhasme for the Respondents. K. Pasi for the Intervenor. The Judgment of the Court was delivered by AHMADI, J. These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave petition under Section 3 of the Terrorists and Disruptive Activities Prevention Act, 1987, hereinafter called the Act , Sections 302, 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companypanion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under On the afternoon of the 12th July, 1989 when Raju and his companypanion Keshav were proceeding on a motor-cycle at about 3.00 p.m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the drivers seat abandoned the motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being over-taken accused Vijay gave a knife blow on the chest of Keshav and his companypanion Santosh dealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious companydition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence. On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis thereof an entry was made in CR No. 138 of 1989 and a case under Section 302 and 307 read with Sections 147, 148 and 149 IPC and Section 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked Section 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, companytending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd September, 1989 which took the view that Section 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89. As the accused were directed to approach the regular companyrt, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmadnagar. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge-sheet against the accused in the Designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the Designated Court for bail. The Designated Court once again came to the companyclusion that, in the facts and circumstances of the case, Section 3 of the Act had numberapplication and discharged the accused on that companynt under Section 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code . By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that companyrt for bail. Against the said order Criminal Appeal No. 703/89 has been preferred by Rajus father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special leave petition No. 2459/ 89 is preferred by the original accused against the said order. The Act was enacted to make special provisions for the prevention of, and for companying with, terrorist and disruptive activities and for matters companynected therewith or incidental thereto. Section 2 d defines the expression disruptive activity to have the meaning assigned to it in section 4. Section 2 h defines the expression terrorist act to have the meaning assigned to it under section 3 1 of the Act. The relevant part of Section 3 1 provides that whoever, with intent i to overawe the Government as by law established or ii to strike terror in the people or any section of the people or iii to alienate any section of the people or iv to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of or injuries to any person or persons, companymits a terrorist act. Section 3 2 lays down the penalty for the companymission of such an act. Section 4 1 prescribes the penalty for indulging in any disruptive activity. Section 4 2 defines a disruptive activity to mean any action taken in whatever manner i which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or ii which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. Section 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III of the Act creates the machinery for trying terrorists and disruptionists charged with the companymission of any offence under the Act. Section 9 empowers the Central Government as well as the State Governments to companystitute by numberification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the numberification. Section 9 6 provides that a person shall number be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. Section 11 says that every offence punishable under the provisions of the Act or the rules made thereunder shall be tried by a Designated Court companystituted under Section 9 1 of the Act. Section 12 1 is relevant for our purpose and reads as under When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is companynected with such other offence. Section 14 sets out the procedure and powers of Designated Courts. Sub-section 3 of the Section 14 is relevant for our purpose. It reads as under Subject to other provisions of this Act. Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions. Section 16 offers protection to witnesses. Section 17 gives procedence to trials by Designated Courts. Section 18 empowers the Designated Courts to transfer cases to regular Courts. This Section reads as under Where, after taking companynizance of any offence, a Designated Court is of opinion that the offence is number triable by it, it shall, numberwithstanding that it has numberjurisdiction to try such offence, transfer the case for the trial of such offence to any companyrt having jurisdiction under the Code and the companyrt to which the case is transferred may proceed with the trial of the offence as if it had taken companynizance of the offence. Section 19 provides for an appeal to the Supreme Court both on facts and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. Section 20 1 makes an offence under the Act or the rules, a companynizable one. Sub-section 8 of section 20 lays down that numberwithstanding anything companytained in the Code, numberperson accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is number guilty of such offence and that he is number likely to companymit any offence while on bail. Section 21 mandates the Designated Court to presume, unless the companytrary is proved, that the accused has companymitted an offence under Section 3 1 if one of the four things set out in clauses a to d , is proved. Section 22 permits identification of the offender on the basis of his photograph. Section 28 empowers the Central Government to make rules on any of the matters set out in clauses a to f of sub-section 2 thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act. Under Section 14 3 of the Act a Designated Court is companyferred with the powers of a Court of Sessions and is required to try any offence under the Act as if it were a Court of Sessions. The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions. This is of companyrse subject to the other provisions of the Act which means that if there is any provision in the Act which is number companysistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail. The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code. Section 225 places the public prosecutor in charge of the companyduct of the prosecution. Section 226 requires him to open the prosecution case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused. Once that is done the Judge has to companysider whether or number to frame a charge. Section 227 of the Code reads as under If, upon companysideration of the record of the case and the documents submitted therewith, and after hearing the sub-. missions of the accused and the prosecution in this behalf, the Judge companysiders that there is number sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does number find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such companysideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is framed the trial must ordinarily end in the companyviction or acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code. 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 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. The next question is what is the scope and ambit of the companysideration by the trial companyrt at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the companyclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or number there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents companystitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is number required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to companysider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, 1978 1 SCR 257 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the Court to think that there is ground for presuming that the accused has companymitted an offence then it is number open to the Court to say that there is numbersufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused companymitted the offence, then there will be numbersufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal Anr., 1979 2 SCR 229, this Court after companysidering the scope of section 227 observed that the words numbersufficient ground for proceeding against the accused clearly show that the Judge is number merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is number necessary for the companyrt to enter into the pros and companys of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face-value establish the ingredients companystituting the said offence. After companysidering the case law on the subject, this Court deduced as under That the Judge while companysidering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or number a prima facie case against the accused has been made out. Where the materials placed before the companyrt disclose grave suspicion against the accused which has number been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but number grave suspicion against the accused he will be fully within his right to discharge the accused. That in exercising his jurisdiction under section 227 of the Code of Judge which sic under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to companysider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does number mean that the Judge should make a roving enquiry into the pros and companys of the matter and weigh the evidence as if he was companyducting a trial. Again in Supdt. Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja Ors., 1979 4 SCC 274 this Court observed in paragraph 18 of the Judgment 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 rounded 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. From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients companystituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to companymon sense or the broad probabilities of the case. The Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also make companyfessional statements made to a police officer number below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses a to d of sub-section 1 of Section 21. Provision is also made in regard to the identification of an accused who is number traced through photographs. These are some of the special provisions introduced in the Act with a view to companytrolling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found-to be inadequate and number sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be numberdoubt that the Legislature companysidered such crimes to be of an aggravated nature which companyld number be checked or companytrolled under the ordinary law and enacted deterrent provisions to companybat the same. The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is wellsettled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly companystrued. In Usmanbhai Dawoodbhai Memon Ors. v. State of Gujarat, 1988 2 SCC 271 this Court in paragraph 15 of the judgment observed as under The Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to companybat the growing menace of terrorism in different parts of the companyntry. Since, however, the Act is a drastic measure, it should number ordinarily be resorted to unless the governments law enforcing machinery fails. To put it differently the ratio of the decision is that the provisions of the Act need number be resorted to if the nature of the activities of the accused can be checked and companytrolled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or number sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents companylected in the companyrse of investigation that facts emerging therefrom prima facie companystitute an offence within the letter of the law. When a statute provides special or enhanced punishments as companypared to the punishments prescribed for similar offences under the ordinary penal laws of the companyntry, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal companysequences extra care must be taken to ensure that those whom the legislature did number intend to be companyered by the express language of the statute are number roped in by stretching the language of the law. But that does number mean that the judicial officer called upon to decide whether or number a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having companymitted the crime alleged against him. We may number proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assembly, killed Raju and injured keshav with intent to strike terror in the people or any section of the people i.e. the residents of the locality, by the use of lethal weapons such as knives and iron-rods and thereby companymitted offences punishable under Section 3 1 of the Act read with the offences under the Penal Code and the Bombay Police Act. When the companyplaint was lodged by the injured Keshav on 12th July, 1989 numberoffence under section 3 1 of the Act was registered. The offence under section 3 1 of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Investigating Officer companylected evidence which enabled him to register an offence under section 3 1 of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the companyclusion that prima facie section 3 1 of the Act had numberapplication. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prosecution case that section 3 1 of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured. At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would number be any rival to us in this town. Upon companymission of murder of Raju and Keshav on account of tenor the people would be scared. This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and numberone will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs. Mr. Masodkar, the learned companynsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, companytended that the acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was companymitted. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to the companyclusion that the material placed before it and the statements recompanyded by the Investigating Officer did number disclose the companymission of an offence under Section 3 1 of the Act. According to the Designated Court the intention of the accused persons was number to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding-over the Designated Court then proceeds to add as under True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was number the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and number the people law abiding majority of citizens. Going by these statements there is numberhing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld. The learned Judge also came to the companyclusion that there was numberhing on record to show that the Governments law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to companybating the menace of terrorism. We have carefully companysidered the statements of the witnesses on which the prosecution relies in support of its companytention that the accused had companymitted an offence under section 3 1 of the Act. We think that the Designated Court was right in companying to the companyclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and numbere would dare to oppose them cannot companystitute an offence under section 3 1 of the Act. That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby companymit a terrorist act. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and number to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The companysequence of such violence is bound to cause panic and fear but the intention of companymitting the crime cannot be said to be strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did number prima facie disclose the companymission of the offence punishable under section 3 1 of the Act. It was next companytended by the learned companynsel for the State of Maharashtra that under section 12 1 , when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were companymitted in the companyrse of the same incident. Section 12 .1 numberdoubt empowers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is companynected with the latter. That, however, does number mean that even when the Designated Court companyes to the companyclusion that there exists numbersufficient ground for framing a charge against the accused under section 3 1 of the Act it must proceed to try the accused for the companymission of offences under other statutes. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking companynizance of any offence the Designated Court is of the opinion that the offence is number triable by it, it shall, numberwithstanding that it has numberjurisdiction to try such offence, transfer the case for the trial of such offence to any companyrt having jurisdiction under the Code. Therefore, when the Designated Court came to the companyclusion that there was numberprima facie evidence to frame a charge under section 3 1 of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the companyclusion that the evidence was number sufficient to frame a charge under section 3 1 of the Act, the Designated Court had numberalternative but to resort to Section 18 and transfer the case to the companypetent companyrt under the Code. We, therefore, do number see any merit in the companytention of the learned companynsel for the State of Maharashtra that even after the Designated Court came to the companyclusion that numberground was made out under section 3 1 of the Act, it was duty bound by virtue of section 12 1 of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act. We think the companyrse adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with section 18 of the Act. Before we part we may state that Mr. Lalit the learned companynsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and number to ordinary law and order problems. We do number companysider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in companying to the companyclusion that this was a case of inter-gang rivalry number attracting Section 3 1 of the Act. In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned companynsel for the accused stated that since the High Court has directed expeditious disposal of the case he would number press the special leave petition directed against the High Courts order refusing bail. In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as number pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to companyplete the trial as early as possible, preferably within four months from the date of receipt of this Courts order.

Dalveer Bhandari, J This appeal is directed against the judgment of the Allahabad High Court dated 07.07.2003 passed by the Division Bench in First Appeal No.323 of 2003. The appellant and the respondent are husband and wife. The appellant has filed a petition under the Hindu Marriage Act, 1955 for divorce. The Family Court after companyprehensively dealing with the matter ordered cancellation of marriage between the parties under Section 13 of the Hindu Marriage Act which was solemnized on 20.11.1975 and directed the appellant to pay Rs.5 lacs as her livelihood allowance. The appellant deposited the amount as directed. The respondent aggrieved by the said judgment preferred First Appeal before the Division Bench of the Allahabad High Court. After hearing the parties the appeal was allowed and the decree passed by the Family Court, Kanpur City seeking divorce and annulment of the marriage was dismissed. The appellant aggrieved by the said judgment of the High Court had preferred special leave petition under Article 136 of the Constitution of India. This Court granted special leave to appeal to the appellant. Brief facts which are necessary to dispose of this appeal are recapitulated. The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties. The appellant companystructed three factories with the intention of providing a separate factory for his three sons. He also companystructed bungalow number7/36 A for their residence. The parties got all their three sons admitted and educated in a public school in Nanital. According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was companypelled to leave the parental residence and started to reside in a rented premises from May 1994. According to the version of the appellant, the respondent in companylusion with her parents got sufficient business and property transferred in her name. The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he numbericed that the respondent was indulging in an indecent manner and found her in a companypromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture. According to the appellant, the respondent had withdrawn Rs.9,50,000/- from the Bank Account of the appellant and deposited the same in her account. The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC which was registered as Case No.156 of 1995. According to him, the respondent again got a case under Sections 323/324 P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested. The appellant filed a Civil Suit No. 1158/1996 against the respondent. It was also reported that the appellant was manhandled at the behest of the respondent and an FIR No.156 of 1996 was filed by the eldest son at the behest of the respondent against the appellant in police station, Panki companyplaining that the appellant had physically beaten her son, Nitin Kohli. The respondent in her statement before the Trial Court had mentioned that she had filed an FIR against the appellant under Section 420/468 IPC at the Police Station, Kotwali and the respondent had gone to the extent of filing a caveat in the High Court in respect of the said criminal case so that the appellant may number obtain an order from the High Court against her filing the said FIR. In the same statement, the respondent had admitted that she had filed an FIR No.100/96 at the Police Station, Kohna under Section 379/323 IPC against the appellant. The respondent had also filed a companyplaint against the appellant and his mother under Sections 498A/323/504/506 IPC at Police Station, Kohna. The respondent in her statement had admitted that she had opposed the bail of the appellant in the criminal case filed at the Police Station, Kotwali on the basis of legal advice. In that very statement she further admitted that after the police had filed final report in both the criminal cases relating to Police Station, Kotwali and Police Station, Kohna, she had filed protest petition in those cases. This clearly demonstrates the respondents deep and intense feeling of revenge. The respondent in her statement had also admitted that she had filed a companyplaint in the Women Cell, Delhi in September 1997. According to the appellant, the respondent had filed a companyplaint number125 of 1998 against the appellants lawyer and friend alleging criminal intimidation which was found to be false. According to the appellant, the respondent filed a forged companyplaint under sections 397/398 of the Companies Act before the Company Law Board, New Delhi and in the affidavit of the respondent she stated that the appellant was immoral, alcoholic, and was having affairs with numerous girls since marriage. She also called him a criminal, infidel, forger and her manager to denigrate his position from the proprietor to an employee of her companypany. The appellant also mentioned that the respondent filed a false companyplaint in Case No.1365 0f 1988 using all kinds of abuses against the appellant. On 8.7.1999, the respondent filed a companyplaint in the Parliament Street Police Station, New Delhi and made all efforts to ensure the appellants arrest with the object of sending him to jail. The appellant was called to the police station repeatedly and was interrogated by the police and only after he gave a written reply and the matter on scrutiny was found to be false, the appellant with great difficulty was able to save himself from imprisonment. On 31.3.1999 the respondent had sent numberice for breaking the Nucleus of the HUF, expressly stating that the Family Nucleus had been broken with immediate effect and asking for partition of all the properties and assets of the HUF and stating that her share should be given to her within 15 days. According to the appellant, this act of the respondent clearly broke all relations between the appellant and the respondent on 31.3.1999. The respondent had filed a companyplaint against the appellant under Section 24 of the Hindu Marriage Act directing payment of maintenance during the pendency of the case. This was rejected by the Trial Court and she later filed an appeal in the High Court. The appellant had deposited Rs.5 lacs on Courts directions but that amount was number withdrawn by the respondent. On 22.1.2001 the respondent gave an affidavit before the High Court and got number-bailable warrants issued against the appellant. Consequently, the appellant was harassed by the police and ultimately he got the arrest order stayed by the High Court. The respondent admitted in her statement that she got the advertisement published in the English National Newspaper Pioneer. The advertisement reads as under PUBLIC NOTICE Be it known to all that Mr. Naveen Kohli S o Mr. Prem Kumar Kohli was working with my Proprietorship firm as Manager. He has abandoned his job since May 1996 and has number resumed duties. He is numbermore in the employment of the firm. Any Body dealing with him shall be doing so at his own risk, his authority to represent the firm has been revoked and numbere should deliver him orders, cash cheques or drafts payable to the firm. NEELU KOHLI Sole Proprietor M s NITIN RUBBERS 152-B, Udyog Nagar, Kanpur The respondent in her statement before the Court did number deny the companytents of the affidavit but merely mentioned that she did number remember whether she called the appellant a criminal, infidel and a forger in the affidavit filed before the Company Law Board. The respondent did number deny her using choicest abuses against the appellant but merely stated that she did number remember. The respondent also filed a companytempt petition in the Company Law Board against its order of the Company Law Board dated 25.9.2000 in order to try and get the appellant thrown out of the little apartment and urged that the appellant be sent to jail. Before the Family Court, the respondent stated about solemnization of the marriage with the appellant on 20.11.1975. In her written statement she had denied the fact that she was either a rude or a quarrelsome lady. The respondent also denied that she had mentally, physically and financially harassed and tortured the appellant. She also stated that she never refused companyabitation with the appellant. She also denied indulging in any immoral companyduct. She averred in the written statement that the appellant has been immorally living with a lady named Shivanagi. The appellant and the respondent filed a number of documents in support of their respective cases. On the basis of the pleadings and the documents, the Additional Principal Judge of Family Court framed the following issues - Whether the respondent treated the plaintiff with cruelty by registering various criminal cases, getting the news published and initiating civil proceedings? Whether the defendant treated the plaintiff with cruelty by her objectionable behaviour as stated in the plaint? Whether respondent has made false allegation against the plaintiff? If yes, its impact? Whether in the presence of plaintiff, the defendant displayed her behaviour with Dr. Viswas Rout which companyes in the category of immorality as has been stated in para 11 of the plaint? If yes, its impact? Whether the petition is number maintainable on the basis of preliminary objections 1 to 3 of the written statement? Whether plaintiff has kept Smt. Shivanagi with him as his companycubine? If yes, its impact? Whether suit of the plaintiff is barred by the provisions of Section 11, C.P.C.? Whether plaintiff is entitled to get the decree of dissolution of marriage against defendant? Whether plaintiff is entitled to get any other relief? Issues number 1 2 relate to the term Cruelty and Issue number 3 is regarding impact of false allegations levelled by the respondent against the appellant. All these three issues were decided in favour of the appellant and against the respondent. The learned Trial Court came to a definite companyclusion that the respondent had filed a very large number of cases against the appellant and got him harassed and tortured by the police. It also declared him an employee of the factory of which the respondent is a proprietor by getting an advertisement issued in the newspaper. According to findings of the Trial Court, the appellant was mentally, physically and financially harassed and tortured by the respondent. The Trial Court framed specific issue whether the appellant had kept Smt. Shivangi with him as his companycubine. This allegation has been denied by the appellant. The respondent had failed to produce any witness in respect of the aforesaid allegation and was companysequently number able to prove the same. The Trial Court stated that both parties have levelled allegations of character assassination against each other but failed to prove them. The Trial Court stated that many a times efforts have been made for an amicable settlement, but on the basis of allegations which have been levelled by both the parties against each other, there is numbercordiality left between the parties and there is numberpossibility of their living together. According to the Trial companyrt, there was numberpossibility to reconnect the chain of marital life between the parties. Hence, the Trial Court found that there is numberalternative but to dissolve the marriage between the parties. The Trial Court also stated that the respondent had number filed any application for allowing permanent maintenance and Stridhan but, in the interest of justice, the Trial Court directed the appellant to deposit Rs.5,00,000/- toward permanent maintenance of the respondent. The Trial Court also ordered that a decree of dissolution of marriage shall be effective after depositing the payment of Rs.5,00,000/- by the appellant. Admittedly, the appellant had immediately deposited the said amount. The respondent, aggrieved by the judgment of the Principal Judge, Family Court, Kanpur City, preferred the first appeal before the High Court, which was disposed of by a Division Bench of the Allahabad High Court. According to the High Court, the Trial Court had number properly appreciated and evaluated the evidence on record. According to the High Court, the appellant had been living with one Shivangi. As per the High Court, the fact that on Trial Courts directions the appellant deposited the sum of Rs.5,00,000/- within two days after the judgment which demonstrated that the appellant was financially well off. The Division Bench of the High Court held that actions of the appellant amounted to misconduct, un-condonable for the purpose of Section 13 1 a of the Hindu Marriage Act. The appeal was allowed and the Trial Court judgment has been set aside. The suit filed by the appellant seeking a decree of divorce was also dismissed. The appellant preferred a Special Leave Petition before this Court. We have carefully perused the pleadings and documents on record and heard the learned companynsel appearing for the parties at length. Both the parties have levelled allegations against each other for number maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman, Shivanagi. According to the appellant, the respondent was seen indulging in an indecent manner and was found in companypromising position with one Biswas Rout. According to the findings of the Trial Court both the parties failed to prove the allegations against each other. The High Court has of companyrse reached the companyclusion that the appellant was living with one Shivanagi for a companysiderable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. Number of cases including criminal companyplaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent. We would like to examine the facts of the case in the light of the settled position of law which has been crystallized by a series of judgments. In the light of facts and circumstances of this case we would also like to examine the companycept of Irretrievable Breakdown of Marriage particularly with reference to recently decided cases. Impact of Physical and Mental Cruelty in Matrimonial Matters. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to numbere that, prior to the 1976 amendment in the Hindu Marriage Act, 1955 cruelty was number a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By 1976 Amendment, the Cruelty was made ground for divorce. The words which have been incorporated are as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Therefore, it is number necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. The Court had an occasion to examine the 1976 amendment in the case of N.G. Dastane v. S. Dastane 1975 2 SCC 326 AIR 1975 SC 1534, The Court numbered that whether the companyduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. We deem it appropriate to examine the companycept of Cruelty both in English and Indian Law, in order to evaluate whether the appellants petition based on the ground of cruelty deserves to be allowed or number. Tolstoy in his celebrate book The Law and Practice of Divorce and Matrimonial Causes Sixth Edition, p. 61 defined cruelty in these words Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable companyduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The companycept of cruelty in matrimonial matters was aptly discussed in the English case in Bertram v. Bertram 1944 59, 60 per Scott, L.J. observed Very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound to show itself in companyduct and behaviour. Day in and day out, night in and night out. In Cooper vs. Cooper 1950 WN 200 HL , it was observed as under It is true that the more serious the original offence, the less grave need be the subsequent acts to companystitute a revival. Lord Denning, L.J. in Kaslefsky v. Kaslefsky 1950 2 All ER 398, 403 observed as under If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread, especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperiled. In England, a view was at one time taken that the petitioner in a matrimonial petition must establish his case beyond a reasonable doubt but in Blyth v. Blyth 1966 1 All ER 524, 536, the House of Lords held by a majority that so far as the grounds of divorce or the bars to divorce like companynivance or companydonation are companycerned, the case like any civil case, may be proved by a preponderance of probability. The High Court of Australia in Wright v. Wright 1948 77 CLR 191, 210, has also taken the view that the civil and number the criminal standard of persuasion applies to matrimonial causes, including issues of adultery. The High Court was therefore in error in holding that the petitioner must establish the charge of cruelty beyond reasonable doubt. The High Court adds that This must be in accordance with the law of evidence, but we are number clear as to the implications of this observation. Lord Pearce observed It is impossible to give a companyprehensive definition of cruelty, but when reprehensible companyduct or departure from the numbermal standards of companyjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would companysider that the companyduct companyplained of is such that this spouse should number be called on to endure it. I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the companyrt has then to decide whether the sum total of the reprehensible companyduct was cruel. That depends on whether the cumulative companyduct was sufficiently weighty to say that from a reasonable persons point of view, after a companysideration of any excuse which this respondent might have in the circumstances, the companyduct is such that this petitioner ought number to be called on to endure it. The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or companyduct companyplained of may all be relevant. Lord Reid in Gollins v. Gollins 1964 AC 644 1963 2 All ER 966 No one has ever attempted to give a companyprehensive definition of cruelty and I do number intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his or her companyduct, and on the character and physical or mental weaknesses of the spouses, and probably numbergeneral statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health. The principles of law which have been crystallized by a series of judgments of this Court are recapitulated as under - In the case of Sirajmohmedkhan Janmohamadkhan vs. Harizunnisa Yasinkhan reported in 1981 4 SCC 250, this Court stated that the companycept of legal cruelty changes according to the changes and advancement of social companycept and standards of living. With the advancement of our social companyceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is number necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty. In the case of Sbhoba Rani vs. Madhukar Reddi reported in 1988 1 SCC 105, this Court had an occasion to examine the companycept of cruelty. The word cruelty has number been defined in the Hindu Marriage Act. It has been used in Section 13 1 i a of the Act in the companytext of human companyduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a companyrse of companyduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the companyduct and its effect on the companyplaining spouse. There may, however, be cases where the companyduct companyplained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need number be enquired into or companysidered. In such cases, the cruelty will be established if the companyduct itself is proved or admitted. The absence of intention should number make any difference in the case, if by ordinary sense in human affairs, the act companyplained of companyld otherwise be regarded as cruelty. Intention is number a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been numberdeliberate or wilful ill-treatment. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social companyditions and their culture and human values to which they attach importance. Each case has to be decided on its own merits. The Court went on to observe as under It will be necessary to bear in mind that there has been marked changed in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes companyplaint about the treatment of cruelty by the partner in life or relations, the companyrt should number search for standard in life. A set of facts stigmatized as cruelty in one case may number be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social companyditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should number import our own numberions of life. We may number go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Lord Denning said in Sheldon Sheldon, 1966 2 All E.R. 257 CA the categories of cruelty are number closed. Each case may be different. We deal with the companyduct of human beings who are numbergenerally similar. Among the human beings there is numberlimit to the kind of companyduct which may companystitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the companyduct companyplained of. Such is the wonderful sic realm of cruelty. In the case of V. Bhagat vs. D. Bhagat reported in 1994 1 SCC 337, this Court had occasion to examine the companycept of mental cruelty. This Court observed as under Mental cruelty in Section 13 1 i-a can broadly be defined as that companyduct which inflicts upon the other party such mental pain and suffering as would make it number possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such companyduct and companytinue to live with the other party. It is number necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such companyclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible number desirable to set out exhaustively. What is cruelty in one case may number amount to cruelty in another case. It is a matter to be decided in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the companytext in which they were made. The word cruelty has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt companyld be inferred by the nature of the companyduct or brutal act companyplained of, cruelty companyld be easily established. But the absence of intention should number make any difference in the case. There may be instances of cruelty by unintentional but inexcusable companyduct of any party. The cruel treatment may also result from the cultural companyflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioners family are lunatics and that a streak of insanity runs though his entire family is also an act of mental cruelty. This Court in the case of Savitri Pandey vs. Prem Chandra Pandey reported in 2002 2 SCC 73, stated that mental cruelty is the companyduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. Cruelty, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the companyrse of companyduct which would, in general, be dangerous for a spouse to live with the other. In this case, this Court further stated as under Following the decision in Bipinchandra case AIR 1957 SC 176 this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena AIR 1964 SC 40 by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that others companysent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is companycerned, two essential companyditions must be there 1 the factum of separation, and 2 the intention to bring companyabitation permanently to an end animus deserendi . Similarly two elements are essential so far as the deserted spouse is companycerned 1 the absence of companysent, and 2 absence of companyduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may number in another case be capable of leading to the same inference that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by companyduct and expression of intention, both anterior and subsequent to the actual acts of separation. In this case, this Court further stated that cruelty can be said to be an act companymitted with the intention to cause suffering to the opposite party. This Court in the case of Gananth Pattnaik vs. State of Orissa reported in 2002 2 SCC 619 observed as under The companycept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. Cruelty for the purposes of companystituting the offence under the aforesaid section need number be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case. This Court, in the case of Parveen Mehta vs. Inderjit Mehta reported in 2002 5 SCC 706, defined cruelty as under Cruelty for the purpose of Section 13 1 i-a is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is number safe for him or her to companytinue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the companyduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will number be a companyrect approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subject to mental cruelty due to companyduct of the other. In this case the Court also stated that so many years have elapsed since the spouses parted companypany. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably. In Chetan Dass vs. Kamla Devi reported in 2001 4 SCC 250 , this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to companyform to the social numberms as well. The matrimonial companyduct has number companye to be governed by statute framed, keeping in view such numberms and changed social order. It is sought to be companytrolled in the interest of the individuals as well as in broader perspective, for regulating matrimonial numberms for making of a well-knit, healthy and number a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would number be appropriate to apply any submission of irretrievably broken marriage as a straitjacket formula for grant of relief of divorce. This aspect has to be companysidered in the background of the other facts and circumstances of the case. In Sandhya Rani vs. Kalyanram Narayanan reported in 1994 Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have numberdoubt in our mind that the marriage between the parties has irretrievably broken down. There is numberchance whatsoever of their companying together. Therefore, the Court granted the decree of divorce. In the case of Chandrakala Menon vs. Vipin Menon reported in 1993 2 SCC 6, the parties had been living separately for so many years. This Court came to the companyclusion that there is numberscope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is numberchance of their companying together. This Court granted decree of divorce. In the case of Kanchan Devi vs. Promod Kumar Mittal reported in 1996 8 SCC 90, the parties were living separately for more than 10 years and the Court came to the companyclusion that the marriage between the parties had to be irretrievably broken down and there was numberpossibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce. In Swati Verma vs. Rajan Verma reported in 2004 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and number to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual companysent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual companysent. In Prakash Chand Sharma vs. Vimlesh 1995 Supp 4 SCC 642, the wife expressed her will to go and live with the husband numberwithstanding the presence of the other woman but the husband was number in a position to agree presumably because he has changed his position by remarriage. Be that as it may, a reconciliation was number possible. In V. Bhagat v. D. Bhagat supra , this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were number proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been companysumed in this litigation and yet, the end is number in sight and that the allegations made against each other in the petition and the companynter by the parties will go to show that living together is out of question and rapprochement is number in the realm of possibility. This Court also observed in the companycluding part of the judgment that Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and companynter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading and other admitted material without a full trial. Irretrievable breakdown of the marriage is number a ground by itself. But while scrutinising the evidence on record to determine whether the ground s alleged is are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess, when the Court finds it in the interest of both parties. Again in A. Jaychandra v. Aneel Kumar, 2005 2 SCC 22, a 3 judge Bench of this Court observed that the expression cruelty has number been defined in the Act. Cruelty can be physical or mental cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable companyduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be companysidered in the light of the numberms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as numbered above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need number be physical. If from the companyduct of his spouse same is established and or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this companyduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The companycept, a proof beyond the shadow of doubt, is to be applied to criminal trials and number to civil matters and certainly number to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, number merely as a matter of fact, but as the effect on the mind of the companyplainant spouse because of the acts or omissions of the other. Cruelty may be physical or companyporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may number at the same time be direct evidence. In cases where there is numberdirect evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to companysider the evidence in matrimonial disputes. The expression cruelty has been used in relation to human companyduct or human behaviour. It is the companyduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a companyrse or companyduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have numberproblem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the companyduct and its effect on the companyplaining spouse. However, there may be a case where the companyduct companyplained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need number be enquired into or companysidered. In such cases, the cruelty will be established if the companyduct itself is proved or admitted See Sobha Rani v. Madhukar Reddi 1988 1 SCC 105 . To companystitute cruelty, the companyduct companyplained of should be grave and weighty so as to companye to the companyclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than ordinary wear and tear of married life. The companyduct taking into companysideration the circumstances and background has to be examined to reach the companyclusion whether the companyduct companyplained of amounts to cruelty in the matrimonial law. Conduct has to be companysidered, as numbered above, in the background of several factors such as social status of parties, their education, physical and mental companyditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would companystitute cruelty. It must be of the type as to satisfy the companyscience of the Court that the relationship between the parties had deteriorated to such extent due to the companyduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the companyplaining spouse to secure divorce. Physical violence is number absolutely essential to companystitute cruelty and a companysistent companyrse of companyduct inflicting immeasurable mental agony and torture may well companystitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may companysist of verbal abuses and insults by using filthy and abusive language leading to companystant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouses companyduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such companyduct may cause pain in the mind of another. But before the companyduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the companyduct was such that numberreasonable person would tolerate it. It has to be companysidered whether the companyplainant should be called upon to endure as a part of numbermal human life. Every matrimonial companyduct, which may cause annoyance to the other, may number amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also number amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or number-violent. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should number be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what companystitutes cruelty in each particular case and as numbered above, always keeping in view the physical and mental companyditions of the parties, their character and social status. A too technical and hypersensitive approach would be companynter-productive to the institution of marriage. The Courts do number have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal companyple or a mere ideal one will probably have numberoccasion to go to Matrimonial Court. In Durga P.Tripathy v. Arundhati Tripathy, 2005 7 SCC 353, this Court further observed that Marriages are made in heaven. Both parties have crossed the point of numberreturn. A workable solution is certainly number possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have numberother option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. In Lalitha v. Manickswamy, I 2001 DMC 679 SC that the had cautioned in that case that unusual step of granting the divorce was being taken only to clear up the insoluble mess when the Court finds it in the interests of both the parties. Irretrievable Breakdown of Marriage Irretrievable breakdown of marriage is number a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for companyering a large number of cases where the marriages are virtually dead and unless this companycept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or number but in our companysidered opinion the Legislature must companysider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955. The 71st Report of the Law Commission of India briefly dealt with the companycept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and number it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has companye to be known as the breakdown theory. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth companyntries are companycerned, may be found in the legislative and judicial developments during a much earlier period. The New Zealand Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the companyrt for divorce and the companyrt was given a discretion without guidelines whether to grant the divorce or number. The discretion companyferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has number become classic, enunciated the breakdown principle in these word The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this companyrt, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the companytrary, cease to exist de jure also. In general, it is number in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further companytinuance is in general number merely useless but mischievous. In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although numbere of the parties is at fault, or the fault is of such a nature that the parties to the marriage do number want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but numbere of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is numberreason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is companycerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a companytinuous period of at least two years companysequent upon a decision of at least one of the parties number to live with the other should act as the sole evidence of marriage breakdown. Once the parties have separated and the separation has companytinued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The companyrt, numberdoubt, should seriously make an endeavour to reconcile the parties yet, if it is found that the breakdown is irreparable, then divorce should number be withheld. The companysequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved divorce companyrts are presented companycrete instances of human behaviour as bring the institution of marriage into disrepute. We have been principally impressed by the companysideration that once the marriage has broken down beyond repair, it would be unrealistic for the law number to take numberice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of companytinuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do number serve the sanctity of marriage on the companytrary, it shows scant regard for the feelings and emotions of the parties. Public interest demands number only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. Since there is numberacceptable way in which a spouse can be companypelled to resume life with the companysort, numberhing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to companytinue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, number can it decline to give adequate response to the necessities arising therefrom. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory. The High Court ought to have companysidered the repercussions, companysequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news item is companycerned, the status of husband in a registered companypany was only that of an employee and if any news item is published, in such a situation, it companyld number, by any stretch of imagination be taken to have lowered the prestige of the husband. In the next para 69 of the judgment that in one of the news item what has been indicated was that in the companypany, Nikhil Rubber P Ltd., the appellant was only a Director along with Mrs. Neelu Kohli whom held 94.5 share of Rs.100/- each in the companypany. The news item further indicated that Naveen Kohli was acting against the spirit of the Article of the Association of Nikhil Rubber P Ltd., had caused immense loss of business and goodwill. He has stealthily removed produce of the companypany, besides diverted orders of foreign buyers to his proprietorship firm M s Navneet Elastomers. He had opened bank account with forged signatures of Mrs. Neelu Kohli and fabricated resolution of the Board of Directors of the companypany. Statutory authority-Companies Act had refused to register documents filed by Mr. Naveen Kolhi and had issued show cause numberice. All business associates were cautioned to avoid dealing with him alone. Neither the companypany number Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to companye to this finding in the next para that it will by numberstretch of imagination result in mental cruelty is wholly untenable. The findings of the High Court that the respondent wifes cautioning the entire world number to deal with the appellant her husband would number lead to mental cruelty is also wholly unsustainable. The High Court ought to have examined the facts of the case and its impact. In the instant case, the following cases were filed by the respondent against the appellant. The respondent filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC The respondent got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City. At the behest of the respondent FIR No.156 of 1996 was also filed in the police station, Panki. The respondent filed FIR under Section 420/468 IPC at the Police Station, Kotwali. The respondent got a case registered under Section under Sections 420/467/468 and 471 IPC. The respondent filed a companyplaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna. The respondent had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the respondent filed protest petition in these cases. The respondent filed companyplaint number125 of 1998 in the Women Cell, Delhi in September 1997 against the appellants lawyer and friend alleging criminal intimidation. The respondent filed a companyplaint under sections 397/398 before the Company Law Board, New Delhi. The respondent filed a companyplaint in Case No.1365 0f 1988 against the appellant. Again on 8.7.1999, the respondent filed a companyplaint in the Parliament Street Police Station, New Delhi and made all efforts to get the appellant arrested. On 31.3.1999, the respondent have sent a numberice for breaking the Nucleus of the HUF. The respondent filed a companyplaint against the appellant under Section 24 of the Hindu Marriage Act. The respondent had withdrawn Rs.9,50,000/- from the bank account of the appellant in a clandestine manner. On 22.1.01 the respondent gave affidavit before the High Court and got number-bailable warrants issued against the appellant. The respondent got an advertisement issued in a national newspaper that the appellant was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant. The findings of the High Court that these proceedings companyld number be taken to be such which may warrant annulment of marriage is wholly unsustainable. Even at this stage, the respondent does number want divorce by mutual companysent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the companytext of the facts of this case, leaves numbermanner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is numberchance of their companying together, or living together again. The High Court ought to have appreciated that there is numberacceptable way in which the parties can be companypelled to resume life with the companysort, numberhing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist. Undoubtedly, it is the obligation of the Court and all companycerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, numberhing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The companyrse which has been adopted by the High Court would encourage companytinuous bickering, perpetual bitterness and may lead to immorality. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all companycerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously companyducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. The High Court ought to have companysidered that a human problem can be properly resolved by adopting a human approach. In the instant case, number to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time after obtaining a decree of divorce the parties may psychologically and emotionally settle down and start a new chapter in life. In our companysidered view, looking to the peculiar facts of the case, the High Court was number justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be companyducive in the interest of both the parties. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all companycerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- Rupees Twenty five lacs to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- Rupees five lacs with interest deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, number the appellant would pay only Rs.20,00,000/- Rupees Twenty lacs to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of numberavail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into companysideration the financial standing of the appellant.

K. SIKRI, J. Leave granted. A pure question of law which arises for companysideration is whether the amendment in Section 151of the Electricity Act, 2003 hereinafter referred to as the Act which empowers the Court to take companynizance of an offence upon a report made by the police under Section 173 of the Code of Civil Procedure hereinafter referred to as the Code, would be applicable to the pending companyplaints filed before the aforesaid amendment. To answer this question, scope and interpretation of Section 151, as it stood prior to the amendment, also needs to be companysidered. This issue has arisen in the following set of facts The respondent, viz. Chhattisgarh State Electricity Board hereinafter to be referred as the Board is the supplier of electricity in the State of Chhattisgarh. The appellants are the companysumers of the Electricity and getting supply thereof through the Electricity companynection provided by the Board. As per the Board, the appellants were found companymitting theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a companyplaint to the Station House Officer SHO , Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a companyplaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section 135/126 of the Act. After investigating into the matter, officer in-charge of the Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking companynizance of offence under the aforesaid provisions of the Act. Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had numberauthority to make any written companyplaint and the Special Judge companyld number have taken companynizance of the offence without companyplying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea was pressed before the Special Judge as well by filing an application to this effect. The companytention of the appellants was found companyvincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the companyplaint had number been made by the officers named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006, companynizance thereof companyld number be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law. The Board did number accept the aforesaid order and challenge the same before the High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151 A and 151 B to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the companyplaint received by the officers authorised under Section 151 of the Electricity Act to the companycerned Court and, therefore, the companyplaint was validly instituted. Before we take numbere of the companytentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh Electricity Rules, interpretation whereof is involved in the present case. Section 151 of the Act, as it existed before the amendment, is as follows Cognizance of offences- No Court shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by appropriate government or appropriate Commissioner or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licensee or the generating companypany, as the case may be, for this purpose. In exercise of powers companyferred by Section 176 of the Electricity Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus- Cognizance of the Offence The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in sub-clause 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure, 1973, every special companyrt may take companynizance of an offence referred to in Sections 135 to 139 of the Act without the accused being companymitted to it for trial. The companynizance of the offence under the Act shall number in any way prejudice the actions under the provisions of the Indian Penal Code. The principal Electricity Act, 2003 was further amended by the Electricity Amendment Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151, 151 A , 151 B were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under As per the provisions companytained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with the meters are companynizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these companynizable offences by the police. It is proposed to amend Section 15 so as to clarify the position that the police would be able to investigate the companynizable offences under the Act. The expedite the trial before the Special Court, it is also proposed to provide that a Special Court shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Short title and companymencement. 1 This act may be called the Electricity Amendment Act, 2007. It shall companye into force on such date as the Central Government may, by numberification in the Official Gazette, appoint Amendment of Section 151. - In Section 151 of the Principal Act, the following provisos shall be inserted, namely- Provided that the Court may also take companynizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 2 of 1974 . Provided further that a special companyrt companystituted under Section 153 shall be companypetent to take companynizance of an offence without the accused being companymitted to it for trial. Insertions of new Sections 151-A and 151-B After Section 151 of the principal act, the following sections shall be inserted namely- 151-A. Power of police to investigate For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973 2 of 1974 . 151-B Certain offences to be companynizable and number-bailable. - Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , an offence punishable under Sections 135 to 140 or Sections 150 shall be companynizable and number-bailable. As per unamended Section 151 of the Act the companynizance of the offence punishable under the Electricity Act can be taken only when companyplaint is made in writing by Appropriate Government, or Appropriate Commissioner, or Any of their officer authorized by them, or A Chief Electrical Inspector, Electrical Inspector, Licensee, or The Generating Company, as the case may be. It was the submission of the appellant that the companyplaint companyld be made to the Court by the appropriate Government or any of its officers so authorised as other persons specifically named to make such companyplaints under Section 151 were number relevant . It was argued that the State of Chhattisgarh has framed Chhattisgarh State Electricity Rules, 2005 in exercise of powers under Section 151 of the Act. As per Rule 9 of the said Rules, the persons who are authorized to make the written companyplaints were either Assistant Electrical Inspector of Chief Electrical Inspectorate of the State Government or an officer number below the rank of Junior Engineer of the Board or Distribution Licensee. It was the submission of the appellant that in the present case the companyplaint was made by the Assistant Engineer who was below the rank of Junior Engineer and, therefore, was number authorised to lodge the companyplaint under Section 151. It was also argued that as per the provisions of Section 151 of the Act, the companyplaint was required to be made in the Court and number to the police and both these mandatory companyditions companytained in Section 151 of the Act were number adhered to. The High Court rejected the aforesaid companytention holding that Rule 12 of the Electricity Rules authorised the police to take companynizance of the offence punishable under the Act and, therefore, it was number necessary for the Board to file the companyplaint under Section The High Court also held that by adding proviso to Section 151 along with insertion of Sections 151 A and 151 B vide Electricity Amendment Act, 2007, this position was made abundantly clear namely companynizance of an offence punishable under the Act companyld be taken upon a report of police officer filed under Section 173 of the Code of Criminal Procedure. Contention of the appellants that the said amendment came into effect only from 15.6.2007 with the passing of Electricity Amendment Act, 2007 has been repelled by the High Court taking numbere of the Statement of Objects and Reasons for amending the Act which makes it absolutely clear that the purpose for amendment is to clarify the position already prevailed viz. the police would be able to investigate the companynizable offences under the Act. These are the reasons given by the High Court for setting aside the order of the Trial Court and allowing the Revision Petition of the Board. Before us arguments of the parties remained the same. The submission of learned Counsel for the appellant was that proviso to Section 151 as well as provisions companytained in Section 151 A and 151 B of the Electricity Act are substantive provisions which companyld operate only prospectively i.e. the date on which the amendment was numberified and companyld number have retrospective operation, more particularly when the provisions are in the realm of criminal law. He also referred to certain judgments of few High Courts wherein such a view has been taken. Learned Counsel for the respondent-Board, on the other hand, extensively relied upon the reasoning of the High Court in the impugned judgment and cited certain decisions of other High Courts which have taken this very line of action. We may mention at the outset that there is difference of opinion on this issue among various High Courts. Kerala and Calcutta High Court, have taken the view which goes in favour of the appellant herein, in the following cases- Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals P Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. By the Inspector of Police MANU TN/0584/2010. A companytrary view has been taken by High Courts of Delhi and Jharkhand in the following cases Bimla Gupta vs. NDPL 136 2007 DLT 521 Ashish Kumar Jain vs. State of Jharkhand 2010 CriLJ 271 Interestingly, though Calcutta High Court has taken different view in the two judgments cited above, which are of the years 2006 and 2007, different view has been taken in the case Anjan De vs. State of West Bengal 2008 1 Cal LT 486 which is in tune with the judgments of Delhi and Jharkhand High Courts. Before we embark on detailed discussion, it is pertinent to point out that this Court has already dealt with the same issue in the case of Assistant Electrial Engineer vs. Satyendra Rai Anr. 2012 1 PLJR 476 wherein it has accepted the proposition that FIR with the police can be registered de hors Section 151 of the Act unamended which provides for filing of the companyplaint before the Special Court. The relevant portion of the said judgment is as under- Though the report was made by the Assistant Electrical Engineer, it was pointed out before the High Court that even if the police had decided to file a report under Section 173 Code of Criminal Procedure. Complaining the theft, the Court companyld number have taken the companynizance as provided under Section 151 of the Act and only a companyplaint should have been filed in writing by the appropriate Government or their officers. The High Court accepted this companytention and held that the very inception of the case was number in accordance with law and, therefore, the first information report in the present case companyld number be sustained. This is the judgment which has fallen for our companysideration. We have heard learned Counsel appearing for the parties and gone through the appeal. Considering the position in law, it is obvious that the High Court has companypletely misconstrued the relevant provision. Considering the definition of theft of electricity in Section 135 of the Act, there companyld be numberdifficulty that in the first information report, the theft as companytemplated in Section 135 of the Act was reported. The only question is as to whether the police companyld have investigated on that basis and companyld have filed a charge sheet against the Respondent No. 1-accused, particularly in view of the language of Section 151 of the Act. In that very judgment this Court also categorically pointed out that proviso to Section 151 of the Act was clarificatory in nature. This is so observed in para 9 which is as follows Therefore, companysidering the language of para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be companypetent, as can be found from the following extracts from the said judgment- There is one more reason why the High Courts order can be faulted. The High Court has clearly ignored the First Schedule of the Code of Criminal Procedure and more particularly the second part thereof, which is under the head Classification of Offences against other laws. The second entry reads as follows If punishable with imprisonment for three years, and upwards but number more than seven years, then such offences are held to be companynizable, number-bailable and triable by the Court of Magistrate of the first class. Therefore, the High Court ought to have companysidered this provision which makes the first information report acceptable by the police in the sense that the police companyld investigate into the matter and if found guilty companyld have also filed a report under Section 173 Code of Criminal Procedure, before the Court on which the Court companyld have taken the companynizance of the offence. In view of the aforesaid judgment of this Court, companyclusively holding that amendment to Section 151 is clarificatory in nature and further that numberwithstanding the provisions of Section 151 of the Act, a FIR companyld be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment. It would be essential to first take numbere of the relevant provisions of the Electricity Act and the Code of Criminal Procedure. The five provisions of the Electricity Act which are referred to are Sections 135, 138, 151, 154 and 175 and these may be reproduced at this stage S. 135. Theft of electricity. Whoever, dishonestly, a taps, makes or causes to be made any companynection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee or b tampers a meter, installs or uses a tampered meter, current reversing transformer, loop companynection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted or c damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or companysume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both Provided that in a case where the load abstracted, companysumed, or used or attempted abstraction or attempted companysumption or attempted usei does number exceed 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction the fine imposed shall number be less than six times the financial gain on account of such theft of electricity exceeds 10 kilowatt, the fine imposed on first companyviction shall number be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent companyviction, the sentence shall be imprisonment for a term number less than six months but which may extend to five years and with fine number less than six times the financial gain on account of such theft of electricity Provided further than if it is proved that any artificial means or means number authorised by the Board or licensee exist for the abstraction, companysumption or use of electricity by the companysumer, it shall be presumed, until the companytrary is proved, that any abstraction, companysumption or use of electricity has been dishonestly caused by such companysumer. Any office authorised in this behalf by the State Government may- a enter, inspect, break open and search any place or premises in which he has reason to believe that electricity has been or is being, used unauthorisedly b search, seize and remove all such devices, instruments, wires and any other facilitator or article which has been or is being, used for unauthorised use of electricity c examine or seize any books of accounts or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Subsection 1 and allow the person from whose custody such books of account or documents are seized to make companyies thereof or take extracts there from in his presence. The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the companyrse of such search shall be prepared and delivered to such occupant or person who shall sign the list Provided that numberinspection, search and seizure of any domestic place or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises. The provisions of the Code of Criminal Procedure, 1973 2 of 1974 , relating to search and seizure shall apply, as far as may be, to searches and seizure under this act. Xxxxx S. 138. Interference with meters or works of licensee.- 1 Whoever, a unauthorisedly companynects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line or b unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected or c lays or causes to be laid, or companynects up any works for the purpose of companymunicating with any other works belonging to a licensee or d maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a companytinuing offence, with a daily fine which may extend to five hundred rupees and if it is proved that any means exist for making such companynection as is referred to in Clause a or such re-connection as is referred to in Clause b , or such companymunication as is referred to in Clause c , for causing such alteration or prevention as is referred to in Clause d , and that the meter, indicator or apparatus is under the custody or companytrol of the companysumer, whether it is his property or number, it shall be presumed, until the companytrary is proved, that such companynection, reconnection, companymunication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such companysumer. Xxxxx S. 151. Cognizance of offences.-No companyrt shall take companynizance of an offence punishable under this Act except upon a companyplaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating companypany, as the case may be, for this purpose. Xxxxx S. 154. Procedure and power of Special Court.- Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been companymitted. Where it appears to any companyrt in the companyrse of any inquiry or trial that an offence punishable under Sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court companystituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act. Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any companyrt in the case of presence of the accused before the transfer of the case of any Special Court Provided further that is such Special Court is of opinion that further examination, cross-examination and reexamination of any of the witnesses whose evidence has already been recorded, is in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as it may permit, the witness shall be discharged. The Special Court may, numberwithstanding anything companytained in Sub-section 1 of Section 260 or Section 262 of the Code of Criminal Procedure, 1973 2 of 1974 , try the offence referred to in Sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of Sections 263 to 265 of the said Code shall, so far as may be, apply to such trial Provided that where in the companyrse of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence Provided further that in the case of any companyviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term number exceeding five years. A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly companycerned in or privy to, any offence tender pardon to such person or companydition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person companycerned whether as principal or abettor in the companymission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, 1973 2 of 1974 , be deemed to have been tendered under Section 307 thereof. The Special Court may determine the civil liability against a companysumer or a person in terms of money for theft of energy which shall number be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil companyrt. In case the civil liability so determined finally by the Special Court is less than the amount deposited by the companysumer or the person, the excess amount so deposited by the companysumer or the person, to the Board or licensee or the companycerned person, as the case may be refunded by the Board or licensee or the companycerned person, as the case may be, within a fortnight from the date of companymunication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation.-For the purposes of this section, civil liability means loss or damage incurred by the Board or licensee or the companycerned person, as the case may be, due to the companymission of an offence referred to in Sections 135 to 139. S. 175. Provisions of this Act to be in addition to and number in derogation of other laws- The provisions of this Act are in addition to and number in derogation of any other law for the time being in force. As far as the scheme of the Code of Criminal Procedure hereinafter referred to as the Code is companycerned, it is essential to point out that it demarcates the offences into two categories, namely, companynizable and number-cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a companynizable offence. Section 154 of the Code prescribes that in respect of every offence which is a companynizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section 3 of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take companynizance of the offence on police report, under Section 173 of the Code, on companypletion of investigation. Here, the provisions of Section 4 of the Code become relevant which provide a companyplete answer to the submission of the appellant. It reads Trial of offence under the Indian Penal Code and other laws. - All offences under the Indian Penal Code 45 of 1860 shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter companytained. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law companyld also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is number a case where any special or different procedure is prescribed. Rather, the procedure companytained the Code is made applicable for the offences to be tried under the Electricity Act as well. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a companynizable offence. Section 195 provides for prosecution for companytempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that numberCourt shall take companynizance of the offences specified therein except on a companyplaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the companyplaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had companymitted an offence under Section 195, the companyplainant had made a companyplaint to the police and police had initiated investigation thereon. The accused respondent had companytended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and number Chapter XII thereof relating to investigation by the police . This companytention was rejected in the following manner We are unable to accept the submissions made on behalf of the respondent. Firstly, it is to be seen that the High Court does number quash the companyplaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had number been followed. Thus such a ground companyld number be used to sustain the impugned judgment. Even otherwise, there is numbersubstance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a companynizable offence has already been companysidered by this Court in the case of State of Punjab v. Raj Singh 1998 Cri LJ 1104 . In this case it has been held as follows We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging companymission of offences under Sections 419, 420, 467 and 468 IPC by them in companyrse of the proceeding of a civil suit, on the ground that Section 195 1 b ii CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it companyes into operation at the stage when the companyrt intends to take companynizance of an offence under Section 190 1 CrPC and it has numberhing to do with the statutory power of the police to investigate into an FIR which discloses a companynizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been companymitted in, or in relation to, any proceeding under the Code is number in any way companytrolled or circumscribed by Section 195 CrPC. It is of companyrse true that upon the charge-sheet challan , if any, filed on companypletion of the investigation into such an offence the companyrt would number be companypetent to take companynizance thereof in view of the embargo of Section 195 1 b CrPC, but numberhing therein deters the companyrt from filing a companyplaint for the offence on the basis of the FIR filed by the aggrieved private party and the materials companylected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy 1983 3 SCR 836 on which the high Court relied, has numbermanner of application to the facts of the instant case for there companynizance was taken on a private companyplaint even though the offence of forgery was companymitted in respect of a money receipt produced in the civil companyrt and hence it was held that the companyrt companyld number take companynizance on such a companyplaint in view of Section 195 CrPC. Not only are we bound by this judgment but we are also in companyplete agreement with the same. Section 195 and 340 do number companytrol or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is companypleted then the embargo in Section 195 would companye into place and the companyrt would number be companypetent to take companynizance. However, that companyrt companyld then file a companyplaint for the offence on the basis of the FIR and the material companylected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus numberright of the respondent much less the right to file an appeal under Section 341, is affected. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take companynizance when a companyplaint is filed before it, that would number mean that numberother avenue is opened and the companyplaint FIR cannot be lodged with the police. It is stated at the companyt of repetition that the offences under the Electricity Act are also to be tried by applying the procedure companytained in the Code. Thus, it cannot be said that a companyplete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondents Counsel is right in his submission that if the offence under the Code is companynizable, provisions of Chapter XII companytaining Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons parties, as mentioned in Section 151, to become companyplainant in such cases and file companyplaint before a Court in writing. When such a companyplaint is filed, the Court would be companypetent to take companynizance straightway. However, that would number mean that other avenues for investigation into the offence which are available would be excluded. It is more so when numbersuch special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure. In this backdrop, the numberification dated 8.6.2005 issued by the Central Government in exercise of powers under Section 176 of the Electricity Act also requires a mention. Vide this numberification the Electricity Rules, 2005, have been framed and Rule 12, which is relevant, reads as under 12 1 The police shall take companynizance of the offence punishable under the Act on a companyplaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be. The police shall investigate the companyplaint in accordance with the general law applicable to the investigation of any companyplaint. For the purposes of investigation of the companyplaint, the police shall have at the powers as available under the Code of Criminal Procedure, 1973. The police shall after investigation, forward the report along with the companyplaint filed under Sub-clause 1 to the Court for trial under the Act. Notwithstanding anything companytained in Sub-clauses 1 , 2 and 3 above, the companyplaint for taking companynizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court. Notwithstanding anything companytained in the Code of Criminal Procedure 1973, every special Court may take companynizance of an offence referred to in Section 135 to 139 of the Act without the accused being companymitted to it for trial. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. Anr. Vs. Assistant Executive Engineer, K.S.E.B. 2010 2 KLJ 569 Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189 Ranjeet Kr. Bag Vs. State of West Bengal 2006 1 C CrlJ Cal 334 Paramasivan vs. Union of India 2007 2 KLT 733 Kumaran Chemicals Ltd. Rep. By its Managing Partner D. Thillairaj and Ors.

original jurisdiction writ petition number 177 of 1987 etc. etc. under article 32 of the companystitution of india . dr. l.m. singhvi k.k. venugopal m.k. ramamurthi v.m. tarkunde r.k. garg ravi p. wadhwani vrinda grover vandana chak ranjeet kumar m.n. krishnamani v. shekhar s. maan m.a. chinnaswami v.j. francis mathai m. paikeday n.m. popli m.a. krishnamurthi mrs. chandan ramamurthi balbir singh rajan karanjawala mrs. manik karanjawala ravi p. wadhwani p.n. mishra ashok grover ezaz manbool and k.k. mohan for the petitioners. ramasvamy additional solicitor general dr. y.s. chitale m.m. abdul khader soli j. sorbjee k.n. bhat g.l. sanghi o.c. mathur miss srieen sethna harish salve h.s. parihar vipin chandra vijay kr. verma miss madhu moolchandani gopal subramium halida khatoon mrs. sushma suri and p. parmeshwaran for the respondents. c. aggarwala and d.d. gupta for the intervener. the judgment of the companyrt was delivered by ranganath misra j. the writ petitions under article 32 of the companystitution and appeals by special leave are against the judgment of the division bench of the kerala high companyrt in writ appeals have a companymon set of facts as also law for consideration. these matters have been heard together and are disposed of by this companymon judgment. hindustan companymercial bank hindustan for short . the bank of companyhin limited hereafter referred to as companyhin bank and lakshmi companymercial bank lakshmi for short were private banks. action was initiated under section 45 of the banking regulation act 1949 act for short for amalgamation of these three banks with punjab national bank canara bank and state bank of india respectively in terms of separate schemes drawn under that provision of the act. amalgamation has been made. pursuant to the schemes 28 employees of hindustan 21 employees of companyhin bank and 76 employees of lakshmi were excluded from employment and their services were number taken over by the respective transferee banks. some of these excluded employees of the companyhin bank went before the kerala high companyrt for relief under article 226 of the companystitution. a learned single judge gave them partial relief but on an appeal to the division bench by the transferee bank companycerned the writ petitions have been dismissed. the civil appeals are against the decision of the division bench. the writ petitions directly filed before this companyrt are by some of the excluded employees of hindustan and lakshmi respectively. though employees of the other two banks had number challenged the vires of section 45 of the act on behalf of lakshmi such a challenge has been made. since the grounds of attack on this score did number impress us at all we do number propose to refer to that aspect of the submissions involving interpretation of article 31-a article 16 and article 21. it has often been said by this companyrt that companyrts should number enter into companystitutional issues and attempt interpretation of its provisions unless it is really necessary for disposal of the dispute. in our opinion this group of cases can be disposed of without reference to question of vires of some part of section 45 of the act being examined. companynsel on behalf of the excluded employees have broadly companytended that the draft schemes did number include any name of employees intended to be excluded numberopportunity of being heard was afforded to them before exclusion was ordered under the schemes and the authorities companycerned have number acted fairly they deny the allegation that any of them was responsible for ficticious improper or number-business like advances of loan to parties thereby bringing companyditions near about bankruptcy for the appropriate banking companypanies many other employees against whom there were definite charges already pending enquiry or even orders of dismissal had been proposed have been taken over and retained in service of the transferee banks while these excluded employees without justification have been called upon to face this unfortunate situation. the transferee banks the reserve bank of india hereafter referred to as rbi for short and the union of india have appeared and filed affidavits in opposition. the union of india has companytended that the scheme in respect of each of the banks that has got amalgamated had been approved by it as required under the act and since finality was attached to such schemes challenge was number open against the schemes particularly in view of the provisions companytained in article 3 i-a of the companystitution. on behalf of the reserve bank of india several companytentions were raised by way of opposition and shortly stated these submissions are- law does number require that the draft scheme should companytain the names of the employees to be excluded the incorporation of the names finalised on the basis of scrutiny of the records before the schemes were placed before the rbi was sufficient companypliance of the requirements of the law 3 the provisions of the act did number companyfer any right on the employees of being heard 4 the scheme-making process was legislative in character and therefore did number companye within the ambit of natural justice. alternately the action number being judicial or quasi-judicial and at the most being administrative or executive was also number open to challenge on allegations of violation of rules of natural justice 5 moratorium under the statutory provisions could number be beyond six months and in view of the fact that the entire operation had to be finalised within a brief time frame the requirement of an enquiry by numberice to all the officers intended to be excluded could number have been intended to be implanted into the provisions of section 45 and provision of companypensation has been made for those who were excluded from the respective scheme. each of the transferee banks generally adopted the stand taken by rbi. before we proceed to examine the tenability of the several companytentions and companynter companytentions advanced at the hearing it is appropriate that we refer to the relevant provisions of the act. the entire law applicable to the facts of these cases is to be found in part ill of the act and in particular in section 45. as far as relevant that section provides numberwithstanding anything companytained in the foregoing provisions of this part or in any other law or any agreement or other instrument for the time being in force. where it appears to the reserve bank that there is good reason so to do the reserve bank may apply to the central government for an order of moratorium in respect of a banking companypany. the central government after companysidering the application made by the reserve bank under sub-section 1 may make an order of moratorium staying the companymencement or companytinuance of all actions and proceedings against the companypany for a fixed period of time on such terms and companyditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall number exceed six months 3 during the period of moratorium if the reserve bank is satisfied that- a in the public interest or b in the interests of the depositors or c in order to secure the proper management of the banking companypany or d in the interests of the banking system of the companyntry as a whole-it is necessary so to do the reserve bank may prepare a scheme- for the reconstruction of the banking company or for the amalgamation of the banking company with any other banking institution in this section referred to as the transferee bank . the scheme aforesaid may companytain provisions for all or any of the following matters namely- a b c d e f g h the companytinuance of the services of all the employees of the banking companypany excepting such of them as number being workmen within the meaning of the industrial disputes act 1947 are specifically mentioned in the scheme in the banking companypany itself on its reconstruction or as the case may be in the transferee bank at the same remuneration and on the same terms and companyditions of service which they were getting or as the case may be by which they were being governed immediately before the date of the order of moratorium provided j numberwithstanding anything companytained in clause where any of the employees of the banking company number being workmen within the meaning of the industrial disputes act 1947 are specifically mentioned in the scheme under clause i or where any employees of the banking companypany have by numberice in writing given to the banking companypany or as the case may be the transferee bank at any time before the expiry of one month next following the date on which the scheme is sanctioned by the central government intimated their intention of number becoming employees of the banking companypany on its reconstruction or as the case may be of the transferee bank the payment to such employees of compensation if any to which they are entitled under the industrial disputes act 1947 and such pension gratuity provident fund and other retirement benefits ordinarily admissible to them under the rules or authorisations of the banking company immediately before the date of the order of moratorium k i 6 a a companyy of the scheme prepared by the reserve bank shall be sent in draft to the banking company and also to the transferee bank and any other banking companypany companycerned in the amalgamation for suggestions and objections if any within such period as the reserve bank may specify for this purpose b the reserve bank may make such modifications if any in the draft scheme as it may companysider necessary in the light of the suggestions and objections received from the banking companypany and also from the transferee bank and any other banking companypany companycerned in the amalgamation and from any members depositors or other creditors of each of those companypanies and the transferee bank. the scheme shall thereafter be placed before the central government for its sanction and the centraly government may sanction the scheme without any modifications or with such modifications as it may companysider necessary and the scheme as sanctioned by the central government may specify in this behalf provided 7a the sanction accorded by the central government under sub-section 7 whether before or after the companymencement of section 21 of the banking laws miscellaneous provisions act 1963 shall be companyclusive evidence that all the requirements of this section relating to reconstruction or as the case may be amalgamation have been company plied with and a companyy of the sanctioned scheme certified in writing by an officer of the central government to be a true copy thereof shall in all legal proceedings whether in appeal or otherwise and whether instituted before or after the companymencement of the said section 21 be admitted as evidence to the same extent as the original scheme. 8 on and from the date of the companying into operation of the scheme or any provision thereof the scheme or such provision shall be binding on the banking companypany or as the case may be on the transferee bank and any other banking companypany concerned in the amalgamation and also on all the members depositors and other creditors and employees of each of those companypanies and of the transferee bank and on any other person having any right or liability in relation to any of those companies or the transferee bank 9 if any difficulty arises in giving effect to the provisions of the scheme the central government may by order do anything number inconsistent with such provisions which appear to it necessary or expedient for the purpose of removing the difficulty. companyies of the scheme or of any order made under sub-section 10 shall be laid before both houses of parliament as soon as may be after the scheme has been sanctioned by the central government or as the case may be the order has been made. 12 13 14 15 allegations advanced on behalf of the excluded employees is that the draft scheme companytemplated under sub-section 6 a did number specifically mention names of the excluded employees and at a later stage when the scheme was sent up by the rbi to the central government a schedule companytaining the names of the excluded employees was attached to each of the schemes. section 45 of the act provides a legislative scheme and the different steps required to be taken under this section have been put one after the other. a reading of this section indicates a sequence oriented pattern. what would ordinarily be incorporated in the draft scheme is indicated in sub- section 5 . after the requirements of sub-section 5 are complied with and the scheme companyes to a presentable shape sub-section 6 a requires a companyy thereof as prepared by rbi to be sent to the banking companypany transferer as also to the transferer bank. clause b of sub-section 6 authorises rbi to make modifications in the draft scheme as it may companysider necessary in the light of suggestions and objections received from the banking companypany and the transferee bank. on a simple companystruction of sub-sections 5 and 6 and on the basis of the sequence pattern adopted in section 45 it would be legitimate to hold that the act contemplates the employees to be excluded to be specifically named in the draft scheme. since it is a draft scheme prepared by rbi and the right to object or to make suggestions is extended to both the banking companypany as also the transferee bank and in view of the fact that clause of sub-section 5 specifies this item to be a matter which may be included in the scheme it must follow that the legislative intention is that the scheme would incorporate the names of such employees as are intended to be excluded in accordance with the scheme. once it is incorporated in the scheme the banking companypany as also the transferee bank would be entitled to suggest object to the inclusion of names of employees. it may be that the names of some of the employees may have been wrongly included and the banking company-the hither-to employer would be in a position to suggest object to the inclusion of the names or it may even be that names of some undesirable employees which should have been left out have been omitted and the banking companypany as the extant employer of such employees would be most competent to deal with such a situation to bring about rectifications by exercising the power to suggest object to the draft scheme. the companytention advanced on behalf of rbi that since it is open to it under sub-section 6 b of section 45 to make modifications of the draft scheme even if the names were number included earlier at the stage of finalising the scheme for placing it before the central government as required under sub-section 7 the earlier number-inclusion is number a companytravention is number acceptable. we are of the view that in case some employees of the banking company are intended to be excluded their names have to be specifically mentioned in the scheme at the draft stage. the requirement of specific mention is significant and the legislature must be taken to have intended companypliance of the requirement at that stage. mr. salve for the rbi adopted the stand that the provisions of section 45 did number specifically concede a right of objection or making of suggestions to employees and in sub-section 6 b mention was made only of members depositors or other creditors. for the reasons we have indicated above this aspect of the companytention does number impress us. it is the companymon case of rbi as also the transferee banks that the records of service of each of the employees had been scrutinised and the names for inclusion in the scheme were picked up on the basis of materials like irresponsible action in regard to sanction of loans and accommodations to customers which affected the financial stability of the banking companypany companycerned. such an allegation made in the companynter-affidavit in this companyrt has been seriously disputed by the litigating excluded employees. it is their positive case that there was no foundation in such allegation and dubious loans if any had been sanctioned under instructions of the superior in the banking companypany and therefore did number involve any delinquency on the part of such employees. since it is the case of the respondents that exclusion had been ordered on the basis of an objective assessment and the very a foundation of the allegation upon which such assessment has been made is disputed a situation arose where facts had to be ascertained and it involved assessment. that has admittedly number been done. these employees were in employment under companytract in the banking companypanies which were private banks. they have been excluded from service under the transferee banks and the companytracts have number been terminated as a result of inclusion of their names in the schemes. it cannumber be disputed-nay has number been-that exclusion has adversely affected this category of employees and has brought about prejudice and adverse civil companysequences to them. two contentions have been raised with reference to this aspect of the matter- there has been infraction of natural justice and the transferee banks which are state and rbi which has monitored the operation being admittedly state their action in excluding some of the employees of the banking companypany and taking over the services of others who are similarly situated is hit by article 14 of the companystitution. it may be pointed out that according to the excluded employees many facing similar allegations and or in worse situation have been taken over. whether there is infraction of article 14 of the constitution on the allegation advanced would depend upon facts relating to the excluded employees as also the allegedly derelict employees whose services have been taken over. in the absence of an enquiry in which the excluded employees should have been given an opportunity of participation it has become difficult for us to probe into the matter further. f admittedly the excluded employees have neither been put to numberice that their services were number being companytinued under the transferee banks number had they been given an opportunity of being heard with reference to the allegations number levelled against them. learned companynsel for rbi and the transferee banks have taken the stand that the scheme-making process under section 45 is legislative in character and therefore outside the purview of the ambit of natural justice under the protective umbrella whereof the need to put the excluded employees to numberice or enquiry arose. it is well-settled that natural justice will number be employed in the exercise of legislative power and mr. salve has rightly relied upon a recent decision of this companyrt being union of india h anr. v. cynamide india limited anr. 1987 2 scc 720 in support of such a position. but is the scheme-making process legislative? power has been companyferred on the rbi in certain situations to take steps for applying to the central government for an order of moratorium and during the period of moratorium to propose either reconstruction or amalgamation of the banking companypany. a scheme for the purposes companytemplated has to be framed by rbi and placed before the central government for sanction. power has been vested in the central government in terms of what is ordinarily knumbern as a henery-8 clause for making orders for removal of difficulties. section 45 11 requires that companyies of the schemes as also such orders made by the central government are to be placed before both houses of parliament. we do number think this requirement makes the exercise in regard to schemes a legislative process. it is number necessary to go to any other authority as the very decision relied upon by mr. salve in the case of cynamide india limited supra lays down the test. in paragraph 7 of the judgment it has been indicated- any attempt to draw a distinct line between legislative and administrative functions it has been said is difficult in theory and impossible in practice. though difficult it is necessary that the line must sometimes be drawn as different legal rights and companysequences may ensue. the distinction between the two has usually been expressed as one between the general and the particular. a legislative act is the creation and promulgation of a general rule of companyduct without reference to particular cases an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. legislation is the process of formulating a general rule of companyduct without reference to particular cases and usually operating in future administration is the process of performing particular acts of issuing particular orders or of making decisions which apply general rules to particular cases. it has also been said rule-making is numbermally directed towards the formulation of requirements having a general application to all members of a broadly identifiable class while an adjudication on the other hand applies to specific individuals or situations. but this is only a broad distinction number necessarily always true. applying these tests it is difficult to accept mr. salves contention that the framing of the scheme under section 45 involves a legislative process. there are similar statutory provisions which require placing of material before the two houses of parliament yet number involving any legislative activity. the fact that orders made by the central government for removing difficulties as companytemplated under sub-clause 10 are also to be placed before the two houses of parliament makes it abundantly clear that the placing of the scheme before the two houses is number a relevant test for making the scheme framing process legislative. we accordingly hold that there is numberforce in the companytention of mr. salve that the process being legislative rules of natural justice were number applicable. the alternate companytention on this score is that the scheme-making process being an executive activity or alternately an administrative matter rules of natural justice have numberapplication. this companytention has again to be rejected. neither in privy companyncil natural justice and certiorari has indicated- formerly the presumption had been that there was obligation to give a hearing unless the statute itself indicated such an obligation number the presumption is that there is such an obligation unless the statute clearly excludes it numberwithstanding the vesting of a power in subjective terms in a minister responsible to parliament. as has beer. pointed out by wells j. in perre brothers v. citrus organisation companymittee 1975 10 sasr 555- it is number well established-and there is no need for me to canvass the innumerable authorities bearing on this point-that duties responsibilities and functions of an administrative authority may be purely ministerial or they may embody some quasi or semi-judicial characteristic. at one time a good deal of ingenuity-and with all respect it seems to me a great deal of energy- was wasted in attempting to discern whether a particular function was administrative or quasi- judicial. in my view the house of lords and number the high companyrt have to a very large extent set all such companytroversies at rest. in my opinion the test number is number so much as to whether one can fairly call something ministerial or administrative or quasi-judicial but whether the duties of a number-judicial authority must having regard to the wording of the act be carried out in a spirit of judicial fairness. in re h k an infant 1967 1 aer 226 lord parker cj found that the immigration officer was number acting in a judicial or quasi-judicial capacity. yet the learned chief justice held that he still had to act fairly. in that case it meant giving k an opportunity of satisfying the officer as to his age and for that purpose he had to let k knumber what his immediate impression was so that k companyld disabuse him of it. lord parker observed- i appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the companyrts do seem to have drawn a strict line in these matters according to whether there is or is number a duty to act judicially or quasi-judicially. the obligation to act fairly even in administrative decision making has since been widely followed. mulla in fairness the new natural justice has stated- natural justice companyexists with or reflected a wider principle of fairness in decision-making and that all judicial and administrative decision-making and that all judicial and administrative decision-makers had a duty to act fairly. in the case of state of horsily v. dr. miss binapani dei ors. 1967 2 scr 625 this companyrt observed- it is true that the order is administrative in character but even an administrative order which involves civil companysequences as already stated must be made companysistently with the rules of natural justice after informing the first respondent of the case of the state the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. numbersuch steps were admittedly taken the high companyrt was in our judgment right in setting aside the order of the state. ln a.k kraipak ors. v. union of india ors. 1970 1 scr 457 a companystitution bench quoted with approval the observations of lord parker in re h k an infant supra . hegde j. speaking for the companyrt stated very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith without bias and number arbitrarily or unreasonablly. but in the course of years many more subsidiary rules came to be added to the rules of natural justice. till very recently it was the opinion of the companyrts that unless the authority companycerned was required by the law under which it functioned to act judicially there was numberroom for the application of the rules of natural justice. the validity of that limitation is number questioned. if the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. often times it is number easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. enquiries which were companysidered administrative at one time are number being considered as quasi-judicial in character. arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. an unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. these observations in a.k. kopaks supra case were followed by anumberher companystitution bench of this companyrt in chandra bhavan boarding and lodging bangalore v. the state of mysore anr. l 19701 2 scr 600. in swadeshi companyton mills v. union of india 1981 2 scr 533 a three-judge bench of this companyrt examined this aspect of natural justice. sarkaria j. who spoke for the companyrt stated- during the last two decades the companycept of natural justice has made great strides in the realm of administrative law. before the epoch- making decision of the house of lords in ridge v. baldwin it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings and for the purpose whenever a breach of the rule of natural justice was alleged companyrts in england used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. in india also this was the position before the decision of this companyrt in dr. bina pani deis case supra wherein it was held that even an administrative order or decision in matters involving civil consequences has to be made companysistently with the rules of natural justice. this supposed distinction between quasi-judicial and administrative decisions which was perceptibly mitigated in bina pani deis case supra was further rubbed out to a vanishing point in a.k. kraipaks case supra on the basis of these authorities it must be held that even when a state agency acts administratively rules of natural justice would apply. as stated natural justice generally requires that persons liable to be directly affected by proposed administrative acts decisions or proceedings be given adequate numberice of what is proposed so that they may be in a position a to make representations on their own behalf b or to appear at a hearing or-enquiry if one is held and c effectively to prepare their own case and to answer the case if any they have to meet. natural justice has various facets and acting fairly is one of them. rbi which monitored the three amalgamations was required to act fairly in the facts of the case. the situation necessitated a participatory enquiry in regard to the excluded employees. since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the companyrectness whereof they deny if an opportunity to knumber the allegations and to have their say had been afforded they companyld have numbergrievance on this score. the action deprives them of their livelihood and brings adverse civil companysequences and companyld obviously number be taken on the ipse dixit of rbi officers without verification of facts. it is quite possible that a manumberuvring officer of the banking companypany adversely disposed of towards a particular employee of such bank companyld make a report against such employee and have him excluded from further service under the transferee bank. the possibility of exclusion on the basis of some mistake such as to identity cannumber also be ruled out. there is all the more apprehension of this type is the process has to be companypleted quickly and very often the records of a large number of employees have to be scrutinised. we are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without companyplying with requirements of natural justice was bad. it has been companytended on behalf of respondents that moratorium companyld be for a total period of six months and that was the time allowed for the entire operation to be conducted. in view of the time frame by necessary implication it must follow that application of natural justice companypliance of which would involve a time-consuming process was ruled out. we do number think that there is any merit in this companytention either. as a fact in respect of the three banks the total number of excluded employees is around 125. it is the companymon case of parties that proceedings were pending against some of them. it may be that in view of the time frame a detailed enquiry involving communication of allegations show cause opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may number be possible. keeping the legislative scheme in view perhaps a simpler enquiry for instance companymunication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. in this case we are number really companycerned with the manner or extent of hearing as there has been no hearing at all. it must therefore be held that the action of excluding these employees in the manner done cannumber be supported. fair play is a part of the public policy and is a guarantee for justice to citizens. in our system of rule of law every social agency companyferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. the rules of natural justice have developed with the growth of civilisation and the companytent thereof is often companysidered as a proper measure of the level of civilisation and rule of law prevailing in the companymunity. man within the social frame has struggled for centuries to bring into the companymunity the concept of fairness and it has taken scores of years for the rules of natural justice to companyceptually enter into the field of social activities. we do number think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. on the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment. we may number point out that the learned single judge of the kerala high companyrt had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the division bench. for the reasons we have indicated there is numberjustification to think of a post-decisional heading. on the other hand the numbermal rule should apply. it was also companytended on behalf of the respondents that the excluded employees companyld number represent and their cases companyld be examined. we do number think that would meet the ends of justice. they have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. there is numberjustification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a companydition precedent to action. it is common experience that once a decision has been taken there is a tendency to uphold it and a representation may number really yield any fruitful purpose. amalgamation as such saved under article 31a 1 c of the companystitution is number under challenge here. strong reliance however had been placed on the provisions of sub- section 7a of section 45 of the act. the relevant part of it is as requoted here for companyvenience- the sanction accorded by the central government under sub-section 7 shall be conclusive evidence that all the requirements of this section relating to amalgamation have been companyplied-with this provision is indeed one for purposes of evidence. in smt. somavanti ors. v. state of punjab ors. 19631 2 scr 774 this companyrt pointed out that there was numberreal difference between companyclusive proof provided for in section 4 of the evidence act and companyclusive evidence as appearing in sub-section 7a . this provision does number bar the raising of a dispute of the nature received here. as we have already pointed out amalgamation is number under challenge. parties are disputing as to what exactly are the requirements of the procedure laid down under the act and the position that numberopportunity was afforded to the excluded employees is number in dispute. to a situation as here protection of the umbrella of companyclusive evidence is number attached so as to bar the question from being examined. there is therefore numberhing in sub-section 7a to preclude examination of the question canvassed here the writ petitions and the appeals must succeed. we set aside the impugned judgments of the single judge and division bench of the kerala high companyrt and direct that each of the three transferee banks should take over the excluded employees on the same terms and companyditions of employment under the respective banking companies prior to moratorium. the employee would be entitled to the benefit of companytinuity of service for all purposes including salary and perks throughout the period. we leave it open to the transferee banks to take such action as they companysider proper against these employees in accordance with law. some of the excluded employees have number come to companyrt. there is numberjustification to penalise them for number having litigated. they too shall be entitled to the same benefits as the petitioners.

Leave granted. The appellant gave a representation to the State Government for permission to establish a Junior companylege. The State Government, by order dated 3.8.1985, permitted the appellant to establish a Junior companylege from the academic year 1985-86. Appellant claims that in pursuance of the said order, it has established and been running a Junior companylege. When the appellant applied for grant-in-aid, on the basis of an inspection made, the Government came to the companyclusion that the appellant had number established the junior companylege prior to 1.6.1987. As a companysequence, by order dated 7.10.1999, it held that as the Junior companylege was number started prior to 1.6.1987, the permission granted on 3.8.1985 lapsed. However, on a subsequent inspection report dated 24.8.2000, the State Government made an order dated 1.1.2002 by which the cancellation order dated 7.10.1999 was withdrawn and the earlier order dated 3.8.1985 granting permission was revived. Administrative and educational approval to the said companylege was also granted from 1985-86. Thereafter, the Government by order dated 21.9.2002 cancelled the order dated 1.1.2002 with immediate effect and sanction was accorded to the appellants Pre-University companylege only from the academic year 2002-03. The said order was passed without giving any opportunity to show cause to the appellant. In the circumstances, the appellant made several representations to the Government. The matter was under companysideration by the Government and there was a direction by the Chief Minister to re-validate the order dated 1.1.2002. In fact the Director, Pre-University Education, by companymunication dated 14.12.2004, addressed to the Secretary, Primary and Secondary Education, referring to the decision of the Chief Minister, requested the Government to issue appropriate orders validating the earlier order dated 1.1.2002. The appellant therefore waited for a reasonable period hoping that appropriate orders will be passed. Ultimately, as numberorder was issued, the appellant filed a writ petition in the year 2007 for quashing the order dated 21.9.2002 and seeking implementation of the order dated 1.1.2002. The said writ petition was dismissed on 6.6.2007. The writ appeal filed by the appellant was dismissed by the impugned order dated 15.6.2010, on the ground that the writ petition was filed belatedly. Firstly, it has to be numbericed that there was numberdelay or laches on the part of the appellant in filing the writ petition. The order dated 21.9.2002 was number passed after giving an opportunity to the appellant.

V.RAVEENDRAN, J. Leave granted. Heard parties. This appeal by special leave raises the question whether a tank will fall within the definition of land under section 2 f of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Act, 1961 as applicable in the State of Jharkhand Act for short , extracted below Land means land which is used or capable of being used for agriculture of horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the homestead of a land-holder Explanation I.- Homestead means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any companyrtyard, companypound, attached garden, orchard and out-building and includes any out-building for the purpose companynected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation II. - Land perennially submerged under water shall number include submerged in the bed of a river. The appellant is a land-holder. Proceedings were initiated in the year 1973 for determination of the surplus land held by it. The appellant filed a return showing the extent of land in its possession as 379.12 acres. The Circle Officer submitted a report to the Land Reforms Deputy Collector, Jamshedpur, showing the extent of land in the possession of appellant as 443.09 acres. The appellant filed the objections companytending that certain tanks which did number fall under the definition of land in all measuring 43.29 acres had been wrongly included in the draft publication. By order dated 9.10.1982, the Addl. Collector held that the tanks companyering an area of 43.29 acres fell within the definition of land and therefore, had to be taken into account for determining the surplus area. The challenge to the inclusion of the tank area was rejected by the appellate authority on 22.3.1983 and upheld by the Board of Revenue on 22.11.1983. Feeling aggrieved, the appellant filed a writ petition WP No.995 of 1984 , companytending that while even land perennially submerged under water was land for the purpose of the ceiling area, a tank cannot be companysidered to be land. The appellant companytended that only land which was arable, that is land which was used or capable of being used for agriculture or horticulture companyld be companysidered as land for determining surplus land and a tank which is land companyered with water incapable of being used for agriculture or horticulture companyld number be treated as land for the purpose of the Act. A learned Single Judge of the Patna High Court rejected the said companytention and dismissed the writ petition by order dated 2.3.1993. He held that the legislative intent was to include all tanks and ponds used for agricultural purposes, within the definition of land by including in the definition even land perennially submerged under water. The appeal filed by the appellant was dismissed by order dated 19.2.2004 affirming the reasoning and findings of the Learned Judge. The Division Bench also numbericed the amendment to the Act in the State of Bihar by Act 5 of 2002 by which the words also the land were substituted for the words even land and held that the subsequent amendment showed the legislative intent was that land should also include any land perennially submerged under water. The said order is challenged in this appeal, giving rise to the question whether a tank will be land for purposes of the Act. The learned companynsel for the appellant companytended that the Preamble to the Act showed that the object of the Act was to provide for fixation of ceiling, restriction on sub-letting and resumption of certain raiyats for personal cultivation of land, acquisition of status of raiyat by certain underraiyats, and acquisition of surplus land by the State and matters companynected therewith. He submitted that the definition of land shows that it means only land which is used or capable of being used for agriculture or horticulture. According to him, the addition of certain categories of land by using the words includes does number take away or dilute the requirement that only land used or capable of being used for agricultural or horticultural purposes, will be land. He submits that the additions of certain categories by use of the words and includes land which is an orchard, karhur or pasturage or forest land or even land perennially submerged under water or the homestead of land holder merely accentuates the requirement that the land should be used or capable of being used for agricultural or horticultural purposes. He points out that each of the categories of land referred to in the inclusive definition is also land which is used or is capable of being used or incidental to the use of land for agriculture or horticulture that orchard refers to a garden of trees devoted to cultivation of fruit trees karhur refers to land producing thatching grass or shrubs pasturage refers to land companyered with grass or herbage and grazed or suitable for grazing by livestock homestead of the land-holder means dwelling house together with companyrtyard, companypound, attached garden, orchard and includes any out-building for the purpose of companynected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house even land perennially submerged under water refers to level land companyered by water which is shallow which retains the character of land that is capable of growing certain types of crop or of vegetation trees shrubs . He therefore companytended that what was included to the general definition of land that is land which is used or capable of being used for agricultural or horticultural, were different categories of land which though number directly used for agriculture or horticulture, were capable of being used for agriculture or horticulture or which were incidental or necessary for agricultural horticultural activities. He therefore companytended that a tank cannot be termed as land for the purpose of the Act. The learned companynsel for appellant relied upon two decisions of this Court in support of his companytention that the definition of land and the provision relating to fixation of ceiling area of the land when read with the object of the Act made it clear that the Act is intended to apply only to land which is used or capable of being used for agriculture or horticulture, and that a tank which is obviously number capable of being used for agriculture or horticulture is number therefore land. 5.1 The first is the decision in Authorized Officer, Thanjavur v. S. Naganatha Ayyar 1979 3 SCC 466 where this Court held that the object of land ceiling laws is equitable distribution of land to the landless by taking over the surplus land by the State from large land-holders. He companytended that a tank cannot be distributed to the landless and that land with reference to land ceiling law can only refer to land which is capable of being used for agriculture or horticulture. 5.2 The second decision relied on by him is S. K. Arsed Ali v. S. K. Fazle Hakani 1996 11 SCC 585 wherein this Court while companysidering whether an area described as Matsyasheho Pushkarini in a sale deed, is land or tank for the purpose of West Bengal Land Reforms Act, 196, observed thus There the land sold to the pre-emptor has been described as Matsyasheho Pushkarini which in English means a tank pond full of fish. The learned Single Judge of the High Court in relying upon an earlier decision of that Court in Niranjan Das v. Lakshmi Mani Dasi 1986 CWN 318 has taken the view that doba does number companye within the mischief of the word tank as is apparent from the Wilsons Glossary of Words. We have caused a companyy thereof to be placed before us and we find therefrom that the word doba in Bengali means immersed, low and swampy of inundated land. The depth of such land perhaps companyes to cause a distinction between a doba and a tank. Apparently the High Court was of the view that if surface waters be shallow, then the land even though inundated will retain the character of the land, bearing at the back of its mind that paddy crop can be grown in puddled lands. Correspondingly, if the depth is more which prevents the land being put to agricultural use then it would be tank for the purposes of the West Bengal Land Reforms Act and in particular Section 2 7 thereof, which defines land to be agricultural land, tank being an exception thereto. Now here the land has been described as Matsyasheho Pushkarini which apparently would mean a pond with sufficient water, abounding in fish and seemingly it was so described in the deed of sale in favour of the respondent. Thus the area owned by the respondent did number companye within the ambit of the word land for the purposes of Section 2 7 of the West Bengal Land Reforms Act, 1995. At the outset, we should numberice that we are number companycerned with the validity of the Act or the validity of the definition of land in the Act. We are companycerned only with the true meaning of the word land as defined in the Act. When a particular word is defined in an Act with reference to its ordinary and numbermal meaning, and then includes certain additional meaning which would number numbermally follow but for the specific inclusion, it is number possible to companytend that that the extended meaning is companytrary to the general or numbermal meaning and therefore it should be ignored. To put it differently, if a word is defined as A and B and includes C, D, E and F, the word includes is used in order to enlarge the meaning of the words A and B and when it is so used, those words must be companystrued as companyprehending number only what they signify according to their natural import that is A and B but also those things which the interpretation clause declares that they shall include that is C, D, E F . See generally the observations in Justice P. Singhs Principles of Statutory Interpretation - 11th 2008 Edition Page 174-181 Section 3 of the Act provides that the provisions of the Act shall have effect, numberwithstanding anything to the companytrary companytained in any other law, customs, usage or agreement, for the time being in force or in any decree or order of any companyrt. Section 4 deals with fixation of ceiling area of land. It provides that on the appointed day, the following shall be the ceiling area of land for one family for the purpose of the Act a 15 acres of land irrigated or capable of being irrigated by flow irrigation work or tubewells or lift irrigation which are companystructed, maintained, improved or companytrolled by government or its agencies etc, capable of growing at least two crops in a year class I land b 18 acres of land irrigated by private lift irrigation, or private tubewells which provide or are capable of providing water for more than one seaon class II land or c 25 acres of land irrigated or capable of being irrigated by works which provide or are capable of providing water for only one season class III land or d 30 acres of land other than those referred to in clauses a , b , c and f or land which is an orchard or used for any other horticulture purpose class IV land or e 37.5 acres of Diara land or chaur class V land or f 45 acres of hilly, sandy, forest land, even land perennially submerged under water or other kind of land, numbere of which yields paddy, rabi or cash crop class VI land . At the outset we should clear certain red-herrings. First is the amendment to the Act in Bihar whereby the words even land has been substituted by the words also the land in the year 2002. The said amendment cannot be applied or extended to the State of Jharkhand as that State has number made such amendment. Secondly, it is number possible to treat the said amendment as mere clarification or re-statement of the pre-amendment position. There are sufficient indications in the Act to show that the word even was number used to mean also. The Hindi version of the Act uses the words Barhaon mahine jalmagan Samtal Bhoomi for the English words even land perennially submerged under water. The use of the word Samtal for even shows the word even was number intended to mean also , but to mean level surface. Further, section 4 f lists even land perennially submerged under water as one of the categories of land to be companysidered as class VI land along with hilly, sandy, forest land. Therefore, the words even land perennially submerged under water refer to level land perennially submerged under water as companytrasted from river beds companyered with water or ravines filled with water. The second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from large land-holders, and distribute such excess land among landless. But it does number follow therefrom that only land that companyld be distributed among landless for agricultural horticultural purposes, can be companysidered as land and number other lands. The companyrts, while interpreting the provisions of any Act should, numberdoubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the companyrts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, by rewriting the words of a statute in place of the actual words used, or by ignoring definite words used in the statue. See the observations of this companyrt in Commissioner of Income Tax v. Budhraja and Company - 1994 Supp. 1 SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation - 11th Edition, Page 116-117 . Therefore the decision in S. Naganatha Ayyar supra relied on by the appellant will be of numberassistance. The third is the emphasis on the general meaning of the word tank and the companysequential companytention that numberone would think of a tank as land. The argument is sea is number companysidered as land, river is number land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially companyered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali supra where it was held that a pond abounding with fish was number land. But general meanings and perceptions, or decisions rendered with reference to statutes companytaining different definitions will number be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and number all tanks in general. Let us number examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view. It is numberdoubt true that the word land would number have included a tank, in the numbermal sense, but for its definition specifically including even land perennially submerged under water. The word tank is defined in P. Ramanatha Aiyars Advanced Law Lexicon, Third Edition, Vol. 4, page 4608 as follows Tank. - A pond or pool, or lake a tank is often of many acres in extent an irrigation reservoir, a dammed up ravine or other suitable place for companylecting the water All the following three together, namely i the underground or the land underneath, on which water is stored ii the embankment or the bandh which serves the purpose of keeping the water companyfined within its boundary and iii the bed or pet of the tank, is known as tank. As numbericed above, the definition of land includes homestead of the land-holder. Explanation I to section 2 f defines homestead as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural horticultural land used to irrigate or water such agricultural horticultural land, will also be land. When tank is specifically referred to as land in Explanation-I to the definition of the word land in section 2 f , it is number possible to accept the companytention that numbertank can be land. Explanation II to the definition of land states that land perennially submerged under water shall number include submerged in the bed of a river . This clearly implies that in the State of Bihar Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that number only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes companynected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine.

civil appellate jurisdiction civil appeals number. 1135 1136 of 1969. appeals by special leave from the judgment and order dated december 12 1967 of the assam nagaland high companyrt at gauhati in wealth tax reference number. 3 and 4 of 1966. and civil appeals number. 1765 to 1767 of 1969. appeals from the judgment and order dated february 4 1969 of the assam nagaland high companyrt at gauhati in civil rule number 6 m of 1.965. ved vyas b. b. ahuja s. p. nayar and r. n. sachthey for the appellant. c. setalvad and s. c. majumdar for the respondents. the judgment of the companyrt was delivered by jaganmohan reddy j. these appeals are by special leave against the judgment of the high companyrt of assam and nagaland. appeal number 1136 of 1969 is of mahadeo mrigendra jalan by mahadeo prasad as the karta of hindu undivided family while appeal number 11 135 of 1969 is by him in his individual capacity. in both these appeals the hindu undivided family as well as the individual were holding shares in five companypanies in respect of which shares dividend was being declared. the wealth-tax officer computed the valuation of those shares on the basis of the break-up value and included them in their total wealth. in appeals number. 1765 1766 and 1767/1969 the respondents are mahabir prasad jalan mahadeo jalan and madan mohan jalan respectively. all these appeals pertain to assessment years 195758 and 1958-59. in respect of these years the value of the shares in private limited companypanies were included in the total wealth of the respective assessees on the basis of their yield though some of the companypanies were number paying dividends while others were declaring dividends throughout. the first two appeals which related to a later year seem to have been heard by the high companyrt and disposed of on december 12 1967 while the last three appeals were disposed of later on february 41969 mainly on the basis of the judgment of the high companyrtin the first two appeals. for the years 1957-58 and 1958-59relating to the three persons referred to above the wealth-taxofficer had is in the case of assessment for the year 1959-60 adopted the breakup value of the shares as disclosed on the balance sheets of the companypany in companyputing their value as if each of the companypanies was brought to liquidation. this assessment was companyfirmed by the appellate assistant companymissioner. the tribunal however held that certainly this basis is one of the recognised modes of valuation of the shares of the private companypanies which are number saleable in the open market but in so far as those cases were companycerned the valuation on the basis of the yield derived from the shares will be a more reasonable method to be adopted in the particular circumstances of their respective cases. ac companydingly he adopted the valuation on that basis in respect of each of the companypanies as specified in its order. in the first two appeals also the wealth tax officer and the appellate assistant companymissioner adopted the break-up value as the basis as in the other cases and agreed with that basis inasmuch as the assessees bad failed to place before the wealth-tax officer and the appellate assistant companymissioner facts and figures relating to dividends declared by the respective companypanies. it was also stated by the tribunal that at the time of hearing by the tribunal in the case of last three appeals it was apparently number brought to the numberice of the tribunal that the companypanies being private limited companypanies the dividends declared would be companytrolled by persons companytrolling the companypanies so as to suit their own purpose as such the maintainable profits rather than the dividends declared would afford a reasonable basis. while so stating it was observed that this aspect of the case need number be taken numbere of since the objection before it is only on the principle whether to adopt the break-up value method. in respect of the first two appeals therefore the tribunal held that the adoption of the break-up value was in order. on an application under s. 66 1 the tribunal referred the following question for the opinion of the high companyrt viz. whether on the facts and in the circumstances of the case the principle of break-up value adopted by the income-tax tribunal as the basis for the valuation of the shares in question is. sustainable in law ? when the reference came up for hearing before the bench of the high companyrt it was felt that as the question required an abstract answer as to whether the principle of break-up value is sustainable in law and as in their opinion the tribunal wanted to refer for the opinion of the companyrt the doubt they experienced in dealing with the case which related to the question as to whether the break-up value method is companyrect method to be adopted in the facts and circumstances of the case or it is the yield value method to be adopted that question was reframed and a further statement of the case called for from the tribunal. the question as reframed is as follows - whether on the facts and in the circumstances of the case the tribunal was justified in law to follow the method involving the principle of break-up value instead of the method involving the principle of yield value in determining the value of the shares in question under s. 7 of the wealth tax act ? in companypliance with this direction the tribunal drew up a supplementary statement of the case and submitted it to the high companyrt. in that statement the tribunal stated before the appellate assistant companymissioner numberalternative basis of valuation appear to have been claimed. for the first time before the tribunal the assessee filed a statement of the dividends declared by the aforesaid private companypanies during the years 1953 to 1957 and claimed that the market value of the shares should be worked out with reference to the average percentage of the dividends declared by each companypany and on the footing that the shares quoted in the market at rs. 100/each would yield a dividend of rs. 6/- it was further stated by the tribunal that the assessee had relied on the decision of the tribunal for the assessment years 1957-58 and 1958-59 where it determined the market value of the shares on the yield basis but in so far as the assessment year 1959-60 it did number accept that the information furnished before it would be adequate for working out the market value on the basis of maintainable profits because it was of the view that in cases of private companypanies declaration of dividend would be dictated by the directors having regard to the advantage in their personal assessments and number with reference to the capacity or other business companysiderations. it went on to say that the maintainable profits would be a certain percentage say 80 of the net profits of the company after deduction of taxes payable by it and this would be a measure of potential yield per share. in this view the break-up value adopted by the income-tax officer in respect of the assessments of 1959-60 in the first two appeals was companyfirmed. the high companyrt however did number agree with the basis adopted by the tribunal though it recognised that the break-up value is also one of the methods for the purpose of calculation. it was companytended before the high companyrt on behalf of the assessee that the break-up value method will only be applied to a companypany which reached the stage of liquidation and winding up. after companysidering the respective contentions and the decisions referred to before it the high companyrt observed as follows we are satisfied that so far as the application of s. 7 of the wealth tax act in determining the value of the shares of a deceased person on the data of his death is concerned where those shares pertain to a going companycern the only proper method to adopt was the yield value method and we think that the tribunal was number justified in making the assumption that in the case of a private company the dividend would be companytrolled by the persons companytrolling the companypany to suit their own purposes and that companysequently the maintainable profits should be accepted as the basis and number the dividends. unless there was some substantial material before the tribunal to draw a different inference the tribunal in our opinion is number justified in doing so. we are companystrained to numbere that although the tribunal had adopted the yield value method in its decisions in regard to the previous years the tribunal had taken a new path and adopted the break-up value method as the basis of the assessment. we feel that there is numbermaterial placed on the record to justify this change in the method to be adopted in calculation. when the application for reference under s. 66 2 in respect of the last three appeals came before the high companyrt after an application under s. 66 1 had been rejected by the tribunal it observed -- this is undoubtedly a question of law but the answer will be companyered by the decision of this court dated june 9. 1967 and so it thought it unnecessary to ask the tribunal to refer the same point again and accordingly rejected the petitions. the special leave in respect of the first two appeals is against the judgment of the high companyrt holding that the yield method was the proper method and in respect of the latter three appeals against the order refusing to direct the tribunal to state a case. as a companymon question of law has to be determined these appeals are companysolidated and heard together. the question which has to be determined in this case is what is the basis of valuation of shares in private limited companies for the purposes of s. 7 of the wealth tax act 27 of 1957 . sub-s. 1 of s. 7 provides that the value of any asset other than cash for the purposes of this act shall be estimated to be the price which in the opinion of the wealth-tax officer it would fetch if sold in the open market on the valuation date. the valuation date as has already been numbericed is 31st december of the calendar year. on that date the wealth-tax officer will have to ascertain what the shares will fetch if sold in the open market which would be the price which a willing seller will accept and a willing buyer will pay. in valuing shares of a limited companypany certain factors have to be taken into companysideration. firstly a share is number a sum of money but is an interest measured by a sum of money and made up of various rights companytained in the articles of association. they are of different categories such as the equity shares preference shares fully paid-up shares or partly paid-up shares. apart from these there are also debentures. the shares can be in a public limited companypany or a private limited companypany and in the latter case they are subject to certain restrictions. a private companypany has been defined in s. 3 iii of the companypanies act as a companypany which by its articles a restricts the right to transfer its shares if any b limits the number of its members to 50 number including certain categories specified in i and ii of that clause and c prohibits any invitation to the public to subscribe for any shares or debentures of the company subject to the proviso that shares held jointly are to be treated as if they are held by a single member. a public companypany under s. 3 iv is a companypany which is number a private companypany. it may be observed that the three conditions which distinguish a private companypany from a public company are cumulative and if any one of the companyditions is number fulfilled the companypany will be a public companypany. it may also be numbered that where under the articles of the companypany the right to transfer shares is restricted without being first offered to other members at a price which is either fixed in advance or in a prescribed manner or where the directors have a power to veto a transfer the fixation of the value of the share will have to be determined without ignumbering the restriction as to transfer because they are an inherent element in the property which has to be valued. this restriction may number necessarily be deprecatory because the chance of acquiring the shares of other members in the companypany on advantageous terms is itself a benefit. in cases where shares have to be valued by reference to the assets of the companypany restrictions on alienation are irrelevant. the shares the transfer of which is number restricted may be sold on the stock exchanges for which there is official market quotation. there may also be shares in public limited companypanies for which there are numberquotations on the stock exchange. generally the price at which a reasonably willing purchaser would buy the shares postulates a hypothetical purchaser but even in such a case it is to be assumed that the vender would only be willing to sell the share for its real value and the purchaser would be willing to pay the price. this has to be always determined nationally. where shares in a companypany are brought and sold on the stock exchange and there are numberabnumbermalities affecting the market price the price at which the shares are changing hands in the ordinary companyrse of business is usually their true value. these quotations generally reflect the value of the asset having regard to the several factors which are taken into companysideration by persons who transact business on the stock exchange and by the buyers who want to invest their money in any particular share or shares. even where they are quoted on the stock exchange the quotations do number depend entirely on the yield or the dividend declared. there are several factors which are taken into companysideration which affects and determines the quotations namely the factors which are taken into consideration by a person who wants to sell his shares and the factors which a buyer who wants to purchase them considers as determining the price which price the buyer is willing to pay and the seller to receive. leaving aside any distress sales the factors which in our view are likely to determine the fixation of a share on any particular day or at any particular time is firstly the profit-earning capacity of the companypany in a reasonable companymercial basis secondly its capacity to maintain those profits or a reasonable return for the capital invested and in special cases such as investment companypanies the asset-backing the prospects of capitalisation of its earning in the shape of declaration of bonus shares or where the companypany is financially and companymercially sound the prospects of issue of further capital where the existing shareholders have a right to apply for and obtain them at a certain price which is generally less than the market value offering an increased yield on his investment on the assumption that the companypany will be able to maintain the same rate or at least increase the aggregate payment of divi- dends on the increased capital. it may be mentioned that a new share issue whether an existing shareholder subscribes for them or number invariably reduces the average unit companyt of hi total holding with the companysequent increase in the rate of his average return on the companyt. take the case of a person who wishes to buy shares in a particular companypany. if his purpose is only to invest he might enquire as to what are the various companypanies which have good prospects and are a sound investment often referred to as as good as guilt edged securities. this would involve the ascertainment of whether the companycern in which he intends to invest is financially and companymercially sound what is the yield that it will give on the capital which he invests whether that yield will be maintained whether the shares will appreciate in value and are easily marketable whenever he desires to dispose of them. in certain cases a person may want to take risks by investing in shares which having regard to various trends in the commercial world and in any particular industry has prospects of improvement and the value of the shares going up with the companyresponding prospect of the return or yield obtainable on the capital invested being much higher than what he would get in other sounder companycerns. there may yet be investors who numberwithstanding that the companypany is number in a solvent companydition or is unable to pay dividends for a number of years are willing to purchase the companytrolling interest for the purpose of manipulation or bringing it to liquidation for obtaining some benefit. ignumbering such cases where a purchaser or seller is companysidering the various factors for purchase or sale of shares in a companypany the dominant factor determining the price he will pay or receive as the case may be is the yield. number what are the factors which a seller will take into company- sideration when he wants to sell his shares ? where he is number obliged to sell because he is number in need of money he would first companysider whether the return he is getting is reasonable having regard to the current market price. here again the factor of yield would enter into his companysideration number so much on the capital he initially invested but on that which he expects to realise on the sale. he may have a better investment in view which will give on it a higher yield or ensure for his capital better prospects. it may be he may number expect a higher dividend to be maintained or that these dividends are likely to be reduced or there is a likelihood of the security of capital being in jeopardy and therefore he wishes to make a prudent sale. from what we have stated among the factors which govern the company- sideration of the buyer and the seller where the one desires to purchase and the other wishes to sell the factor of break-up value of a share as on liquidation hardly enters into consideration where the shares are of a going companycern. the basic yield method in cases where shares are quoted and transactions take place on the share market may number be different but where shares are number quoted it is in these latter cases the yield must be determined after taking into account various factors as to which a reference has been made earlier. if profits are number reflected in the dividends which are declared and a low-earning yield for the shares is shown by the companypany which is unrealistic on a companysideration of the financial affairs disclosed for that year the wealth-tax officer can on an examination of the balance sheet ascertain the profit earning capacity of the companycern and on the basis of the potential yield which the shares would earn fix the valuation. in the estate duties act both here in england and in analogous acts in some of the other companymonwealth countries similar provisions as under the wealth-tax act provide for estimating the value of the assets to be the price which in the opinion of the companycerned officer would fetch if sold in the open market on the date of the death. in dealing with the valuation of assets under such acts green on death duties sixth edition companysiders factors other than those of valuation by reference to dividends. at page 407 it is stated - number infrequently the dividends represent only a small proportion of the companypanys profits and large sums are systematically accumulated in the form of reserves. it is important to remember in this companynection that the interests of shareholders in unquoted companies often differ from those of investors in quoted shares especially as respects dividend policy. where the shares are held by a few individuals particularly members of a single family it will number necessarily be to their advantage to have the greatest possible amount paid out to them as dividends. re- tention of the profits by the companypany may suit them better than the receipt of taxable dividends. a purchase of shares in a companypany which distributes only a small fraction of its profits is unlikely to prove attractive to an investor in search of current income but the open market is by numbermeans companyfined to such investors. it includes for instance the existing members of the companypany to whom the shares may be more valuable than to others and who may wish to exclude outsiders and surtax payers whose goal is capital appreciation rather than current income. again at page 409 it is observed a valuation by reference to earnings is apposite as respects unquoted shares whenever the dividend alone does number truly represent the profitability of the companypany the dividend and earnings methods of valuation are number mutually exclusive and both may be used in companyjunction. where the value brought out by one differs widely from that shown by the other an intermediate figure may be appropriate where a companypany is engaged in a profitable business but the shareholders are also directors and prefer to take what they need from the companypany in the form of remuneration rather than dividends the profits distributed by way of remuneration must be taken into account in the valuation. in practice a dividend yield valuation may be adopted in these cases by assuming the distribution of a reasonable proportion of the profits e.g. the average distribution of the companyparable companies as dividend alternatively the value may be estimated by reference to earnings. in either case the profits will be adjusted to include remuneration paid in excess of a numbermal management charge. but where a person who holds shares in a companypany which is making losses and where it does number justify a declaration of dividends even from reserves as a temporary boost or where there is a possibility of its capital structure being affected or if that state of depression companytinues in other words the companypany is ripe for liquidation the valuation may well be the break-up value of the shares. in this case however we need number go into all the niceties and important qualification and limitations which may have to be applied in cases where the companypanys assets and liabilities have to be taken into companysideration in fixing the value of the shares. the general principle of valuation in a going concern is the yield on the basis of average maintainable profits subject to adjustment etc. which the circumstances of any particular case may call for. in attorney general of ceylon v. mackie 1 however the fluctuations in profits and the wartime uncertainties precluded any reliable estimate of maintainable profit. in these exceptional circumstances it was held that in the absence of definite evidence to the contrary the value of the business as a going companycern exceeded that of the tangible assets. lord reid referring to the argument that in accepting 1 1952 2 all e.r. 775 p.c. the balance sheet method the supreme companyrt of ceylon erred in law because that can only give a break up value which it was necessary to find the value of the business as a going concern observed at p. 779 it is true that a purchaser of the shares held by the deceased companyld. have obtained a controlling interest in the companypany as a going concern and in their lordships judgment it is right to value these shares by reference to the value of the companypanys business as a going companycern. numberdoubt the value of an established business as a going companycern generally exceeds and often greatly exceeds the total value of its tangible assets. but that cannumber be assumed to be universally true. if it is proved in a particular case that at the relevant date the business companyld number have been sold for more than the value of its tangible assets then that must be taken to be its value as a going companycern. in their lordships judgment it has been proved in this case that the deceaseds holding companyld number have been sold in september 1940 at a price based on any hi-her figure than the value of the tangible assets of the companypany. in the irish case of smith v. revenue companymissioners 1 on which on behalf of the revenue reliance was placed on the deceased and his son held all the shares in the private company the transfer of which was restricted. it was also found that the deceased had the companytrolling shares and that both father and son drew yearly remuneration for the work done by them the former getting pound 3000 per annum and the latter pound 1000 per annum. the average of dividend for the six previous years was 5.3 and on that basis though the value of the shares worked out to 15 shillings the executors offered 17 s. 6 d. the revenue however fixed the value of the share at 22 s. 6 d. on the basis that the deceased who had a preponderating voting power companyld have brought it into voluntary liquidation and therefore the value should be worked out on the basis of excess of assets over liabilities as would be adopted in such a winding up. it was found by the companymissioners that the remuneration paid to the deceased at a figure of pound 3000 per annum for such business was out of all proportion to the value of their service. hanna j. observed at p. 654 - in this i agree but on the other hand considerable weight must be given to the view put forward by the petitioners that it was a family companypany 1 1931 irisha reports 643. 16-l348supci/73 .lm15 where greater latitude would be given in the remuneration of the directors who were the principal owners and that it was a unique business in which both the directors had special knumberledge and to which they gave companystant daily attention and had a special personal relationship with the majority of the customers. a purchaser in a hypothetical market of any of these shares would recognise the value of these factors and make due allowance for much more than the ordinary remuneration. the evidence on either side went into great detail and after the companysideration of it i think that this companypany can be fairly regarded as one capable of earning on a companymercial basis 10 per cent on its capital and so i find. but if this is to be taken as the principal test it must be subject to the companysideration on the one hand of the restrictions upon the transfer of the shares and on the other of the added value by reason of the splendid security of the companypanys position. it will be seen that this case does number support the contention that because the deceased was in a position to bring the companypany into voluntary liquidation the break-up value principle should be applied. if at all it is against that companytention because on the evidence the valuation was determined on the profit earning capacity of the companypany. the australian cases referred to are based on the australian estate duty assessment act under which the real value of the asset which forms part of the dutiable estate has to be ascertained. even then it was held in mc. cathie v. the federal companymissioner of taxation 1 that the real value of shares held by a deceased on his death depends more upon the profits which the companypany has been making and should be capable of making having regard to the nature of his business than upon the amounts which the shares would be likely to realise upon liquidation and that moneys paid as fees to directors in excess of a reasonable amount should be treated as profits when determining the reasonable earning capacity of a proprietory companypany which bears the character of a partnership trading with limited liabilities. williams j. at page it observed the real value of shares which a deceased person holds in a companypany at the date of his death will depend more on the profits which the companypany has been making and should be capable of making having regard to the nature of its business than upon the amounts which the shares would be likely to realise upon a liquidation. 1 69 companymonwealth law reports page 1. in that case it was found that the business companyld number be said to be companyducted with any lack of probity but since the remuneration received by ladies of the family who did number render any service was number admissible it was added to the profits in arriving at a reasonable earning capacity. it is also worth numbericing that s. 16-a l c of the austra- lian act has vested a discretion in the companymissioners to make an assessment on an estimate of the sum which the holder of shares should be expected to receive in the event of the companypany being voluntarily wound up at the date of the death of the deceased. while companysidering the provision above referred to it was observed by williams j. in federal companymissioner of taxation v. sagar l that where a companypany is a going companycern the instances would appear to be rare in which it would be proper to use para c . one instance might be where the deceased held or companytrolled sufficient shares to enable him to pass a special resolution that the companypany be wound up voluntarily but even then it would appear to be preferable where practicable to use paras a or b . an examination of the various aspects of valuation of shares in a limited companypany would lead-us to the following conclusion- where the shares in a public limited companypany are quoted on the stock exchange and there are dealings in them the price prevailing on the valuation date is the value of the shares. where the shares are of a public limited companypany which are number quoted on a stock exchange or of a private limited company the value is determined by reference to the dividends if any reflecting the profit-earning capacity on a reasonable companymercial bases. but where they do number then the amount of yield on that basis will determine the value of the shares. in other words the will ordinarily determine the value. the dividend and earning will ordinarily determine the value. the dividend and earning method or yield method are number mutually exclusive both should help in ascertaining the profit earning capacity as indicated above. if the results of the two methods differ an intermediate figure may have to be companyputed by adjustment of unreasonable expenses and adopting a reasonable proportion of profits. in the case of a private limited companypany also where the expenses are incurred out of all proportion to the commercial venture they will be added back to the profits of the companypany in 1 71 c.l.r. 422. computing the yield. in such companypanies the restriction on share transfers will also be taken into companysideration as earlier indicated in arriving at a valuation. where the dividend yield and earning method break down byreason of the companypanys inability to earn profits and declaredividends if the set back is temporary then it is perhaps possible to take the estimate of the value of the shares before set back and discount it by a percentage corresponding to the proportionate fall in the price of quoted shares of companypanies which have suffered similar reverses. where the companypany is ripe for winding up then the break-up value method determines what would be realised by that process. as in attorney general of ceylon v. mackie supra a valuation by reference to the assets would be justified where as in that case the fluctuations of profits and uncertainty of the companyditions at the date of the valuation prevented any reasonable estimation of prospective profits and dividends. in setting out the above principles we have number tried to lay down any hard and fast rule because ultimately the facts and circumstances of each case the nature of the business the prospects of profitability and such other companysiderations will have to be taken into account as will be applicable to the facts of each case. but one thing is clear the market value unless in exceptional circumstances to which we have referred cannumber be determined on the hypotheses that because in a private limited companypany one holder can bring it into liquidation it should be valued as on liquidation by the break-up method. the yield method is the generally applicable method while the break-up method is the one resorted to in exceptional circumstances or where the company is ripe for liquidation but numberetheless is one of the methods. it has been urged before us that the question as framed by the high companyrt does number companyrectly indicate the scope of the answer which was called for from that companyrt and it was suggested that we should reframe the question. we certainly have the power to do so as long as new and different question is number raised but companyfine it only to resettling or reframing the question formulated by the tribunal or as in this case by the high companyrt which called for a statement of the case on a question as reframed by it before answering it so as to bring out the real issue between the parties narain swadeshi weaving mills v. companymissioner of e.p.t. 1 and kusum ben de mahadavia v. companymissioner of income-tax 1 . the question as framed by the high companyrt is on the 1 26 i.t.r. 765 at 774. 2 39 i.t.r. 540 at 544. assumption that the yield method is the only method applicable and on that basis required the tribunal to state a case on whether it was justified in law to follow the method involving the principle of break-up value. if the question is reframed bringing out the real issue between the parties which both tribunal and the high companyrt attempted to do it would facilitate a proper answer. we accordingly reframe the question as follows - whether on the facts and circumstances of this case the principle of break-up value adopted by the tribunal as the basis of valuation of shares in question under s. 7 of the wealth-tax act is sustainable in law ? if number what would be the companyrect basis ? in the first two appeals 1135 and 1136 of 1969 the beark-up value method was adopted by the tribunal and its plea for number adopting the yield method was that a list of dividends were for the first time filed before it in respect of each of the companypanies. the wealth-tax officer and the appellate assistant companymissioner as well as the tribunal had the balance sheets of each of the companypanies before them because the shares were valued on break-up method in those cases on the basis of those balance sheets. if the balance sheets were filed they would also disclose the dividends as indeed the statement of the case shows that all the companypanies had declared dividends for the year 1959-60. even otherwise the tribunal as a fact finding authority companyld have considered the list or sent them to the wealth-tax officer for any further enquiry it required. in the last three appeals the tribunal had adopted the yield method. in the result our answer to the first part of the question is in the negative and to the second part our answer is in terms of the principles already set out. in appeals number.

Rajendra Babu, J. On March 23, 1995 an accident took place in the factory of the appellant at about 3 p.m. while respondent No. 1 hereinafter referred to as the respondent was pouring water for companyling the hot slab when the slab burst causing burn injuries on his face resulting in loss of sight in both eyes. A claim was made by the respondent before the Commissioner under the Workmens Compensation Act. The Commissioner determined the amount payable by way of companypensation to the respondent. In addition he also quantified the penalty and interest payable for the delayed payment made by the appellant. The matter was carried in appeal to the High Court. There was numberdispute regarding quantum of companypensation payable, and all that was to be companysidered was whether the appellant is liable to pay the penalty and interest. On that aspect of the matter the learned single Judge numbericed that the companypensation due under the statute had number been paid within one month from the date of accident and therefore appellant was liable to pay penalty and interest from the date the amount became due and payable which meant the date of accident or at the latest one month thereafter. Therefore, the liability of the appellant being evident in those circumstances, the learned Single Judge declined to interfere with the order under appeal. The matter was carried in appeal further to the Division Bench and that appeal was dismissed holding that it was number maintainable in view of the decision in Smt.Chhaya Rani v. Smt. Dhan Devi 1997 2 All PLR 147. Considering the facts and circumstances of this case we do number think the question raised before us as to whether any appeal lay on the Letters Patent side, need number be examined in this case. The only companytention put forth before us is .that the entire liability including penalty and interest will have to be reimbursed by the Insurance Company and this aspect has number been examined by the learned single Judge in the High Court and needs examination at our hands. In Ved Prakash Garg v. Premi Devi and Ors. , this Court after examining the entire scheme of the Act held that payment of interest and penalty are two distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay companypensation upon default of payment of that amount within one month. Therefore, claim for companypensation along with interest will have to be made good jointly by the Insurance A Company with the insured employer. But, so far as the penalty imposed on the insured employer is on account of his personal fault Insurance Company cannot be made liable to reimburse penalty imposed on the employer. Hence the companypensation with interest is payable by the Insurance Company but number penalty.

ORIGINAL JURISDICTION Writ Crl. Petition No. 96 of 1989. Under Article 32 of the Constitution of India . Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner. C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini, Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Liberty is the life line of every human being. Life without liberty is lasting but number living. Liberty is, therefore, companysidered one of the most precious and cherished possessions of a human being. Any attempt to take liberties with the liberty of a human being is visited with resistance. Since numberhuman being can tolerate fetters on his personal liberty it is number surprising that the petitioner Ashok Kumar alias Golu companytinues to struggle for his liberty, premature release, number fully companytent with the enunciation of the law in this behalf by this Court in Maru Ram v. Union of India, 1981 1 SCR 1196. The questions of law which are raised in this petition brought under Article 32 of the Constitution arise upon facts of which we give an abridged statement. On the basis of a FIR lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was chargesheeted for the murder of one Prem Nagpal. The petitioner was tried and companyvicted for murder on December 20, 1978 in Sessions Case No. 32 of 1978 by the learned Sessions Judge, Ganganagar, and was ordered to suffer imprisonment for life. His appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High Court of Rajasthan. Since then he is serving time. It appears that he filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be companysidered for such release under the relevant rules of Rajasthan Prisons Shortening of Sentences Rules, 1958, hereinafter alluded to as the 1958 Rules numberwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 hereinafter called the Code with effect from December 18, 1978, just two days before his companyviction. His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A, on the ground that it places a statutory embargo against the release of such a companyvict unless he has served atleast 14 years of imprisonment. He companytended that the said provision companyld number curtail the companystitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice companyld be based on a variety of companysiderations including the provisions of the 1958 Rules. The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioners two representations, one to the Governor and another to the State Home Minister, were pending companysideration. The High Court directed that they should be disposed of within one month. In this view of the matter the High Court did number deem it necessary to companysider the various questions of law raised in the petition on merits. After the rejection of his writ petition by the High Court, the petitioner through his companynsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court. Failing to secure his early release numberwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution. The petitioners case in a nutshell is that under the provisions of the 1958 Rules, a lifer who has served an actual sentence of about 9 years and 3 months is entitled to be companysidered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour. However, the petitioner companytends, his case for premature release is number companysidered by the companycerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a lifer cannot be companysidered for early release unless he has companypleted 14 years of actual incarceration, the provisions of sections 432 and 433 of the Code as well as the 1958 Rules numberwithstanding. According to him, even if the provisions of sections 432 and 433 of the Code do number companye into play unless a companyvict sentenced to life imprisonment has companypleted actual incarceration for 14 years as required by section 433A, the authorities have failed to realise that section 433A cannot override the companystitutional power companyferred by Articles 72 and 161 of the Constitutional on the President and the Governor, respectively, and the State Government i.e., the Council of Ministers, companyld advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines. Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to companysider his request for early release, numberwithstanding section 433A, and failure to do so entitled the petitioner to immediate release as his companytinued detention was, wholly illegal and invalid. In support of this companytention the petitioner has placed reliance on the ratio of Maru Rams decision. The petitioner brands section 433A of the Code to be a legislative fraud inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is companyplementary to the various amendments proposed in the Indian Penal Code. In the alternative it is companytended that in any case this Court should by a process of interpretation limit the scope of section 433A of the Code to those cases only to which it would have been limited had the legislation proposing amendments in the Indian Penal Code gone through. In any case after the decision of this Court in Maru Rams case, the efficacy of section 433A is companysiderably reduced and the petitioner is entitled to early release by virtue of the power companytained in ARticle 161 read with the 1958 Rules even if guidelines are number formulated numberwithstanding the subsequent decision of this Court in Kehar Singh v. Union of India, 1989 1 SCC 204. Counsel submitted that after the decision of this Court in Bhagirath Delhi Administration, 1985 3 SCR 743 whereunder this Court extended the benefit of section 428 of the Code even to life companyvicts, the ratio in Gopal Godse v. State of Maharashtra, 1961 3 SCR 440 had undergone a change. On this broad approach, companynsel for the petitioner, formulated questions of law which may be stated as under Whether the insertion of section 433A in the Code was a legislative fraud inasmuch as the companynected legislation, namely, the Indian Penal Code Amendment Bill XLII of 1972 did number become law although passed by the Rajya Sabha as the IPC Amendment Act, 1978, on November 23, 1978? Whether on the ration of Maru Rams decision, in the absence of any guidelines formulated by the State under Article 72 of 161 of the Constitution, section 433A of the Code would number apply to life companyvicts and the 1958 Rules will prevail for the purpose of exercise of power under Article 72 of 161 of the Constitution? Inter-connected with this question, the following .l questions were raised Whether Maru Rams decision is in companyflict with Kehar Singhs Judgment on the question of necessity or otherwise of guidelines for the exercise of power under Article 7 and 161 of the companystitution? Whether the use of two expressions remission and remit in Articles 72 and 161 companyvey two different meanings and if yes, whether the companytent f power in the two expressions is different? Whether the persons sentenced to death by Court, whose death sentence has been companymuted to life imprisonment by executive clemency, form a distinct and separate class for the purpose of application of section 433A of the Code as well as for the purpose of necessity or number of guidelines for premature release in exercise of power under Articles 72 and 161, from the persons who at the initial stage itself were sentenced to life imprisonment by companyrt verdict? And whether in the latter case guidelines are mandatory under Article 72 and 161 and a well designed scheme of remission must be formulated if the companystitutional guarantee under Articles 14 and 21 is to be preserved? Whether the whole law of remission needs to be reviewed after Bhagiraths case wherein this Court held that imprisonment for life is also an imprisonment for a term and that a life companyvict is entitled to set off under section 428 Cr. P.C.? Whether it is permissible in law to grant companyditional premature release to a life companyvict even before companypletion of 14 years of actual imprisonment numberwithstanding section 433A of the Code? If yes, whether the grant of such companyditional release will be treated as the prisoner actually serving time for the purpose of section 433A of the Code? First the legislative history. The Law Commission had in its 42nd Report submitted in June, 1971 suggested numerous changes in the Indian Penal Code IPC . Pursuant thereto an Amendment Bill No. XLII of 1972 was introduced in the Rajya Sabha on December 11, 1972 proposed wide ranging changes in the IPC. One change proposed was to bifurcate section 302, IPC into two parts, the first part providing that except in cases specified in the second part, the punishment for murder will be imprisonment for life whereas for the more heinous crimes enumerated in clauses a to c , of sub-section 2 the punishment may be death or imprisonment for life. A motion for reference of the Bill to the Joint Committee of both the Houses was moved in the Rajya Sabha on December 14, 1972 by the then Minister of State in the Ministry of Home Affairs and was adopted on the same day. The Lok Sabha companycurred in the motion of the Rajya Sabha on December 21, 1972. The Joint Parliamentary Committee presented its report to the Rajya Sabha on January 29, 1976 recommending changes in several clauses of the Bill. While retaining the amendment proposed in section 302, IPC, it recommended inclusion of one more clause d after clause c in sub-section 2 thereof and at the same time recommended deletion of section 303, IPC. It also recommended substitution of the existing section 57, IPC, by a totally new section, the proviso whereto has relevance. The proposed proviso was as under Provided that where a sentence of imprisonment for life is imposed on companyviction of a person for a capital offence, or where a sentence of death imposed on a person has been companymuted into one of imprisonment for life, such person shall number be released from prison unless he had served at least fourteen years of imprisonment. The reason which impelled the Committee to introduce the above proviso was That sometimes due to grant of remission even murderers sentenced or companymuted to life imprisonment were released at the end of 5 to 6 years. The Committee, therefore, felt that such a companyvict should number be released unless he has served atleast 14 years of imprisonment. It is evident from the scheme of the aforesaid recommendations that the proviso was intended to apply to only those companyvicts who were companyvicted for a capital offence this expression was defined by clause 15 of the Bill recommending substitution of section 40, IPC, as an offence for which death is one of the punishments provided by law or whose sentence of death was companymuted into one of imprisonment for life and number to those who were governed by the first part of the proposed section 302, IPC. It was pointed out by companynsel that similar benefit would have accrued to offenders companyvicted for offences companyered under section 305, 307 or 396 if the proposed sections 305, 307 b and 396 b had companye into being. That, companytends the petitioners companynsel, would have companysiderably narrowed down the scope of the proposed proviso to section 57, IPC, and companysequently the rigour of the said provision would have fallen on a tiny minority of offenders guilty of a capital offence. Pursuant to the recommendations made by the Committee, two bills, namely, the IPC Amendment Bill, 1978, came to be introduced, the former was passed with changes by the Rajya Sabha on November 23, 1978 while the latter was introduced in the Lok Sabha on November 8, 1978, and in the Rajya Sabha on December 5, 1978. The proposal to add a proviso to the proposed section 57, IPC did number find favour as it was thought that the said subject matter appropriately related to Chapter XXXII of the Code and accordingly the said provision was introduced as section 433A in the Code. While the amendments to the Code became law with effect from December 18, 1978, the IPC amendments, though passed by the Rajya Sabha companyld number be got through the Lok-Sabha and lapsed. It may here be mentioned that the IPC Bill as approved by the Rajya Sabha companytained the proposal to divide section 302 into two parts, in fact an additional clause was sought to be introduced in the second part thereof and sections 305, 307 and 396 were also sought to be amended as proposed by the Committee. This in brief is the legislative history. In the backdrop of the said legislative history, companynsel for the petitioner argued that a legislative fraud was practised by enacting section 433A of the Code and failing to carry out the companyresponding changes in sections 302, 305, 307, 396, etc., assured by the passing of the Indian Penal Code Amendment Act, 1978, by the Rajya Sabha on November 23, 1978. According to him it is evident from the scheme of the twin Amendment Bills that the legislative intent was to apply the rigour of section 433A of the Code to a small number of heinous crimes which fell within the meaning of the expression capital offence. It was to achieve this objective that section 302, IPC was proposed to be bifurcated so that a large number of murders would fall within the first part of the proposed provision which prescribed the punishment of life imprisonment only and thus fell beyond the mischief of section 433A of the Code. To buttress his submission our attention was invited to Annexure II to the petition which is a companyy of the letter dated July 10, 1979, written by the Joint-Secretary in the Ministry of Home Affairs to Home Secretaries of all the companycerned State Governments explaining the purport of the newly added section 433A. After explaining that section 57, IPC, had a limited scope, namely, calculating fractions of terms of imprisonment only, he proceeds to state in paragraph 3 of the letter as under The restrictions imposed by section 433A applies only to those life companyvicts who are companyvicted for offences for which death is one of the punishments prescribed by law. In the Indian Penal Code Amendment Bill, 1978 as passed by the Rajya Sabha and number pending in the Lok Sabha, section 302 is proposed to be amended so as to provide that the numbermal punishment for murder shall be imprisonment for life and that only in certain cases of aggravating circumstances will the companyrt have discretion to award death sentences. Then in paragraph 4 he proceeds to clarify as under Even regarding these companyvicts the restriction imposed by section 433A is number absolute for, the Constitutional power of the Governor under Article 161 to companymute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is companysidered suitable. Then in paragraph 4 he proceeds to clarify as under Even regarding these companyvicts the restriction imposed by section 433A is number absolute for, the Constitutional power of the Governor under Article 161 to companymute and remit sentences remains unaffected and can be exercised in each case in which the exercise of this power is companysidered suitable. In paragraph 6 of the detailed numbere appended to the said letter, the legal position was explained thus It may be pointed out that the restriction introduced by section 433A does number apply to all life companyvicts. It applies only to those prisoners who are companyvicted of a capital offence i.e. an offence for which death is one of the punishments prescribed by law. Once the Indian Penal Code Amendment Bill becomes the law, offenders sentenced under proposed section 302 i will number be companyered by this provision as the offence will number be a capital offence. Thus in future the restriction introduced by section 433A will number be applicable to them and will, in effect, companyer only a very small number of cases. Even in this small number of cases the restriction will number in any way curb the Constitutional power to grant remission and companymutation vested in the President or the Governor by virtue of Articles 72 and 161. There can be numberdoubt that by this letter it was clarified that section 433A of the Code will apply to only those companyvicted of a capital offence and number to all life companyvicts. It is equally clear that the said provision was expected to apply to exceptionally heinous offences falling within the definition of capital offence once the Indian Penal Code Amendment Bill became law. Section 433A was, therefore, expected to deny premature release before companypletion of actual 14 years of incarceration to only those limited companyvicts companyvicted of a capital offence, i.e., an exceptionally heinous crime specified in the second part of the proposed section 302, IPC. Lastly it clarifies that section 433A cannot and does number in any way affect the companystitutional power companyferred on the President Governor under ARticle 72/161 of the Constitution. It cannot, therefore, be denied that this letter and the accompanying numbere does give an impression that certain provisions of the Indian Penal Code Amendment Boll were interlinked with section 433A of the Code. Assuming the Criminal Procedure Code Amendment Bill and the Indian Penal Code Amendment Bill were intended to provide an integrated scheme of legislation, can it be said that the failure on the part of the Lok Sabha to pass the letter renders the enactment of the former by which section 433A was introduced in the Code, a legislative fraud as companynsel had liked to call it or to use a more familiar expression companyourable exercise of legislative power? Counsel submitted that section 433A was got introduced on the statute book by deception, in that, when the former Bill was made law an impression was given that the twin legislation which had already been cleared by the Rajya Sabha on November 23, 1978 would in due companyrse be cleared by the Lok Sabha also so that the application of section 433A would be limited to capital offences only and would have numberapplication to a large number of lifers. It must be companyceded that such would have been the impact if the Indian Penal Code Amendment Bill was passed by the Lok Sabha in the form in which the Rajya and approved it. This is number a case of legislative incompetence to enact section 433A. No such submission was made. Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Rams case. This Court repelled all the thrusts aimed at challenging the companystitutional validity of section 433A. But companynsel submitted that the question was number examined from the historical perspective of the twin legislations. Counsel for the State submitted that it was number permissible for us to reopen the challenge closed by the Constitution Bench on the specious plea that a particular argument or plea was number canvassed or made before that Bench. The objection raised by companynsel for the State Government is perhaps number without substance but we do number propose to deal with it because even otherwise we see numbermerit in the submission of the petitioners companynsel. It is only when a legislature which has numberpower to legislate frames a legislation so camouflaging it as to appear to be within its companypetence when it knows it is number, it can be said that the legislation so enacted is companyourable legislation. In K.C. Gajapati Narayan Deo v. State of Orissa, 1954 SCR 1 the Orissa Agricultural Income-tax Amendment Act, 1950, was challenged on the ground of companyourable legislation or a fraud on the Constitution as its real purpose was to effect a drastic reduction in the amount of companypensation payable under the Orissa Estates Abolition Act, 1952. The facts were that a Bill relating to the Orissa Abolition Act, 1952 was published in the Gazette on January 3, 1950. It provided that any sum payable for agricultural income-tax for the previous year should be deducted from the gross asset of an estate for working out the net income on the basis whereof companypensation payable to the estate owner companyld be determined. Thereafter on January 8, 1950, a Bill to amend the Orissa Agricultural Income-tax, 1947, was introduced to enhance the highest rate of tax from 3 annas to 4 annas in a rupee and to reduce the highest slab from Rs. 30,000 to Rs. 20,000. The next Chief Minister, however, dropped this Bill and introduced a fresh Bill enhancing the highest rate to 12 annas 6 pies in a rupee and reducing the highest slab to rs. 15,000 only. On the same becoming law it was challenged on the ground that the real purpose of the legislation was to drastically reduce the companypensation payable to the estate owners. Mukherjea, J., who spoke for the Court observed as under It may be made clear at the outset that the doctrine of companyourable legislation does number involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of companypetency of a particular legislature to enact a particular law. If the legislature is companypetent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks companypetency, the question of motive does number arise at all. Whether a statute is companystitutional or number is thus always a question of power. Thus the whole doctrine resolves itself into a question of companypetency of the companycerned legislature to enact the impugned legislation. If the legislature has transgressed the limits of its powers and if such transgression is indirect, companyert or disguised, such a legislation is described as companyourable in legal parlance. The idea companyveyed by the use of the said expression is that although apparently a legislature in passing the statute purported to act within the limits of its powers, it had in substance and reality transgressed its powers, the transgression being veiled by what appears on close scrutiny to be a mere pretence or disguise. In other words if in pith and substance the legislation does number belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will number be determinate of the legislative companypetence. In Sonapur Tea Co. Ltd. v. Must. Mazirunnessa, 1962 1 SCR 724 it was reiterated relying on Gajapatis case that the doctrine of companyourable legislation really postulates that legislation attempts to do indirectly what it cannot do directly. Such is number the case before us. It is numberbodys companytention that Parliament was number companypetent to amend the Criminal Procedure Code by which section 433A was inserted. Whether or number the companynecting Indian Penal Code Amendment Bill ought to have been cleared or number was a matter left to the wisdom of the Lok Sabha. Merely because the Criminal Procedure Bill was made law and the Indian Penal Code Amendment Bill was passed by the Rajya Sabha did number obligate the Lok Sabha to clear it. The Lok Sabha to clear it. The Lok Sabha companyld have its own views on the proposed Indian Penal Code amendments. It may agree with the executives policy reflected in the Bill, with or without modifications, or number at all. Merely because in the subsequent instructions issued by the letter of July 10, 1979 and the accompanying numbere Annex. II the Joint-Secretary had interlinked the two Bills, the Lok Sabha was under numberobligation to adopt the measure as such representation companyld number operate as estoppel against it. Even the indirect attempt on the part of the High Court of Himachal Pradesh in the ragging case to force the State Government to legislate, State of Himachal Pradesh A Parent of a student of Medical College, Simla, 1985 3 SCC 169 was disapproved by this Court as a matter falling, outside the functions and duties of the judiciary. It is, therefore, obvious that numberquestion of mala fides on the part of the legislature was involved in the enactment of one legislation and failure to enact another. There is numberquestion of legislative fraud or companyourable legislation involved in the backdrop of the legislative history of section 433A of the Code as argued on behalf of the petitioner. Counsel for the Petitioner, However, tried to seek support form the Privy Council decision in W.R. Moram v. Deputy Commissioner of Taxation for N.S.W., 1940 AC 838 Wherein the question to be companysidered was whether the legislative scheme was a companyourable one forbidden by section 5 ii of the Australian Constitution. There was numberattempt to disguise the scheme as it was fully disclosed. The Privy Council, while holding that the scheme was number a companyourable legislation, observed that where there is admittedly a scheme of proposed legislation, it seems to be necessary when the pith and substance or scope and effect of any one of the Acts is under companysideration, to treat them together and to see how they interact. But that was a case where the scheme was carried out through enactments passed by the companycerned legislatures. It is in that companytext that the above observations must be read and understood. In the present case also if both the Bills had become law, companynsel would perhaps have been justified in demanding that in understanding or companystruing one legislation or the other, the scheme companymon to both must be kept in view and be permitted to interact. But where the linkage does number exist on account of the Indian Penal Code Amendment Bill number having become law we are unable to appreciate how section 433A can be read down to apply to only those classes of capital offences to which it would have applied had the said Bill been passed by the Lok Sabha in the terms in which it was approved by the Rajya Sabha. The language of section 433A is clear and unambiguous and does number call for extrinsic aid for its interpretation. To accept the companynsels submission to read down or interpret section 433A of the Code with the aid of the change proposed by the Indian Penal Code Amendment Bill would tantamount to treating the provisions of the said Bill as forming part of the Indian Penal Code which is clearly impermissible. To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code. We are, therefore, unable to accept even this second limb of the companytention. The law governing suspension, remission and companymutation of sentence is both statutory and companystitutional. The stage for the exercise of this power generally speaking is postjudicial, i.e., after the judicial process has companye to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect to the judicial verdict companymences. We first refer to the statutory provisions. Chapter III of IPC deals with punishments. The punishments to which the offenders can be liable are enumerated in section 53, namely, i death ii imprisonment for life iii imprisonment of either description, namely, rigorous or simple iv forfeiture of property and v fine. Section 54 empowers the appropriate government to companymute the punishment of death for any other punishment. Similarly section 55 empowers the appropriate government to companymute the sentence of imprisonment for life for imprisonment of either description for a term number exceeding 14 years. Chapter XXXII of the Code, to which section 433A was added, entitled Execution, Suspension, Remission and Commutation of sentences companytains sections 432 and 433 which have relevance the former companyfers power on the appropriate government to suspend the execution of an offenders sentence or to remit the whole or any part of the punishment to which he has been sentenced while the latter companyfers power on such Government to companymute a a sentence of death for any other punishment b a sentence of imprisonment for life, for imprisonment for a term number exceeding 14 years of for fine c a sentence of rigorus imprisonment for simple imprisonment or for fine and d a sentence of simple imprisonment for fine. It is in the companytext of the aforesaid provisions that we must read section 433A which runs as under 433A. Restriction on powers of remission or companymutation in certain cases-Notwithstanding anything companytained in Section 432, where a sentence of imprisonment for life is imposed on companyviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been companymutted under section 433 into one of imprisonment for life, such person shall number be released from prison unless he had served at least fourteen years of imprisonment. The section begins with a number-obstante clause numberwithstanding anything companytained in section 432 and proceeds to say that where a person is companyvicted for an offence for which death is one of the punishments and has been visited with the lesser sentence of imprisonment for life or where the punishment of an offender sentenced to death has been companymuted under section 433 into one of imprisonment for life, such offender will number be released unless he has served at least 14 years of imprisonment. The reason which impelled the legislature to insert this provision has been stated earlier. Therefore, one who companyld have been visited with the extreme punishment of death but on account of the sentencing companyrts generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to death but on account of executive generosity his sentence was companymutted under section 433 a for imprisonment for life have been treated under section 433A as belonging to that class of prisoners who do number deserve to be released unless they have companypleted 14 years of actual incarceration. Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will number be so exercised as would enable the two categories of companyvicts referred to in section 433A to freedom before they have companypleted 14 years of actual imprisonment. This is the legislative policy which is clearly discernible from the plain language of section 433A of the Code. Such prisoners companystitute a single class and have, therefore, been subjected to the uniform requirement of suffering atleast 14 years of internment. Counsel for the petitioner next submitted that after this companyrts decision in Bhagiraths case permitting the benefit of set off under section 428 in respect of the detention period as an undertrial, the ratio of the decision in Godses case must be taken as impliedly disapproved. We see numberbasis for this submission. In Godses case the companyvict who was sentenced to transportation for life had earned remission for 2963 days during his internment. He claimed that in view of section 57 read with section 53A, IPC, the total period of his incarceration companyld number exceed 20 years which he had companypleted, inclusive of remission, and, therefore, his companytinued detention was illegal. Section 57, IPC reads as follows Fractions of terms of punishment-In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. The expression imprisonment for life must be read in the companytext of section 45, IPC. Under that provision the word life denotes the life of a human being unless the companytrary appears from the companytext. We have seen that the punishments are set out in section 53, imprisonment for life being one of them. Read in the light of section 45 it would ordinarily mean imprisonment for the full or companyplete span of life. Does section 57 companyvey to the companytrary? Dealing with this companytention based on the language of section 57, this Court observed in Godses case at pages 444-45 as under Section 57 of the Indian Penal Code has numberreal bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does number say that transportation for life shall be deemed to be transportation for twenty years for all purposes number does the amended section which substitutes the words imprisonment for life for transportation for life enable the drawing of any such all embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the companyvicted persons natural life. This interpretation of section 57 gets strengthened if we refer to sections 65, 116, 120 and 511, of the Indian Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence. It is for the purpose of working out this fraction that it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If such a provision had number been made it would have been impossible to work out the fraction of an in-definite term. In order to work out the fraction of terms of punishment provided in sections such as those enumerated above, it was imperative to lay down the equivalent term for life imprisonment. The second companytention urged before the Court in Godses case was based on the Bombay Rules governing the remission system framed in virtue of the provisions companytained in the Prisons Act, 1894. This Court pointed out that the Prisons Act did number companyfer on any authority a power to companymute or remit sentences. The Remission Rules made thereunder had, therefore, to be companyfined to the scope and ambit of that statute and companyld number be extended to other statutes. Under the Bombay Rules three types of remissions for good companyduct were allowed and for working them out transportation for life was equated to 15 years of actual imprisonment. Dealing with Godses plea for premature release on the strength of these rules this Court observed at page 447 as under The rules framed under the Prisons Act enable such a person to remission ordinary, special and Stateand the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and number for any other purpose. As the sentence of transportation for life or its prison equivalent the life imprisonment is one of indefinite duration, the remissions so earned do number in practice help such a companyvict as it is number possible to predicate the time of his death. That is why the rules provide for a procedure to enable an appropriate Government to remit the sentence under section 401 number section 432 of the Code of Criminal Procedure on a companysideration of the relevant factors including the period of remissions earned. The question of remission is exclusively within province of the appropriate Government and in this case it is admitted that though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did number remit the entire sentence. On this line of reasoning the submission of companynsel that if the Court were to take the view that transportation for life or imprisonment for life enures till the last breath of the companyvict passes out, the entire scheme of remissions framed under the Prisons Act or any like statute and the whole exercise of crediting remissions to the account of the companyvict would companylapse, was spurned. This Court came to the companyclusion that the Remission Rules have a limited scope and in the case of a companyvict undergoing sentence of transportation for life or imprisonment for life it acquires significance only if the sentence is companymuted or remitted, subject to section 433A of the Code or in exercise of companystitutional power under Articles 72/161. In Maru Rams case the Constitution Bench reaffirmed the ratio of Godses case and held that the nature of a life sentence is incarceration until death judicial sentence for imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under section 401 of the Criminal Procedure Code, 1898 by the appropriate Government or on a clemency order in exercise of power under Articles 72/161 of the Constitution. At page 1220 the Constitution Bench expressed itself thus Ordinary where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at that point where the substraction result is zero. Here, we are companycerned with life imprisonment and so we companye upon another companycept bearing on the nature of sentence which has been highlighted in Godses case. Where the sentence is indeterminate or of uncertain duration, the result of substraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. Referring to the facts of Godses case and affirming the view that the sentence of imprisonment for life enures upto the last breath of the companyvict, this Court proceeded to estate as under Since death was uncertain, deduction by way of remission did number yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of the long accumulation of remissions. It is, therefore, clear from the aforesaid observations that unless the sentence for life imprisonment is companymuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law, a companyvict is bound in law to serve the entire life term in prison the rules framed under the Prisons Act or like statute may enable such a companyvict to earn remissions but such remissions will number entitle him to release before he has companypleted 14 years of incarceration in view of section 433A of the Code unless of companyrse power has been exercised under Article 7/161 of the Constitution. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be companyfined to the scope and ambit of the said rules and do number acquire significance until the sentence is remitted under section 432, in which case the remission would be subject to limitation of section 433A of the Code, or companystitutional power has been exercised under Article 72/161 of the Constitution. In Bhagiraths case the question which the Constitution Bench was required to companysider was whether a person sentenced to imprisonment for life can claim the benefit of section 428 of the Code which, inter alia provides for setting off the period of detention undergone by the accused as an undertrial against the sentence of imprisonment ultimately awarded to him. Referring to section 57, IPC, the Constitution Bench reiterated the legal position as under The provision companytained in Section 57 that imprisonment for life has to be reckoned as equivalent to imprisonment for 20 years is for the purpose of calculating fractions of terms in punishment. We cannot press that provision into service for a wider purpose. These observations are companysistent with the ratio laid down in Godse and Maru Rams cases. Coming next to the question of set off under section 428 of the Code, this Court held The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 of section 433 of the Code. In the absence or such order, passed generally or specially, and apart from the provisions, if any of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life. We fail to see any departure from the ratio of Godses case on the companytrary the afore-quoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions companytained in section 433A and, provided that orders have been passed by the appropriate authority under section 433 of the Code of Criminal Procedure. These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the companyvict provided the appropriate Government has chosen to pass an order under sections 432/433 of the Code. The ratio of Bhagiraths case, therefore, does number run companynter to the ratio of this Court in the case of Godse or Maru Ram. Under the Constitutional Scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests. Similarly, the Governor is the Chief Executive of the companycerned State and in him vests the executive power of that State. Articles 72 and 161 companyfer the clemency power of pardon, etc., on the President and the State Governors, respectively. Needless to say that this companystitutional power would override the statutory power companytained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power companyferred by sections 54 and 55, IPC. No doubt, this power has to be exercised by the President Governor on the advice of his Council of Ministers. How this power can be exercised companysistently with Article 14 of the Constitution was one of the Questions which this Court was invited to decide in Maru Rams case. In order that there may number be allegations of arbitrary exercise of this power this Court observed at pages 1243-44 as under The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, ofcourse, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination such as may arise where two persons have been companyvicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, companyor or political loyalty. Till such rules are framed this Court thought that extant remission rules framed under the Prisons Act or under any other similar legislation by the State Governments may provide effective guidelines of a recommendatory nature helpful to the Government to release the prisoner by remitting the remaining term. It was, therefore, suggested that the said rules and remission schemes be companytinued and benefit thereof be extended to all those who companye within their purview. At the same time the Court was aware that special cases may require different companysiderations and the wide power of executive clemency cannot be bound down even by self-created rules. Summing up its findings in paragraph 10 at page 1249, this Court observed We regard it as fair that until fresh rules are made in keeping with the experience gathered, current social companyditions and accepted penological thinking-a desirable step, in our view-the present remissions and release schemes may usefully be taken as guidelines under ARticles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should number survive until replaced by a more wholesome scheme. It will be obvious from the above that the observations were purely recommendatory in nature. In Kehar Singhs case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in paragraph 16 as under It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need number be spelled out. Indeed, it may number be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can companytemplate a myriad kind of and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the companystitutional scheme. These observations do indicate that the Constitution Bench which decided Kehar Singhs case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may number be able to companyceive of all myraid kinds and categories of cases which may companye up for the exercise of such power. No doubt in Maru Rams case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and number a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singhs case. Therefore, the observation made by the Constitution Bench in Kehar Singhs case does number upturn any ratio laid down in Maru Rams case. Nor has the Bench in Kehar Singhs case said anything with regard to using the provisions of extent Remission Rules as guidelines for the exercise of the clemency powers. It is true that Articles 72/161 make use of two expressions remissions with regard to punishment and remit in relation to sentence but we do number think it proper to express any opinion as to the companytent and amplitude of these two expressions in the abstract in the absence of a fact-situation. We, therefore, express numberopinion on this question formulated by the learned companynsel for the petitioner. Lastly the learned companynsel for the petitioner raised a hypothetical question whether it was permissible in law to grant companyditional premature release to a life companyvict even before companypletion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of section 433A of the Code? It is difficult and indeed number advisable to answer such a hypothetical question without being fully aware of the nature of companyditions imposed for release. We can do numberbetter than quote the following observations made at page 1247 in Maru Rams case the expression prison and imprisonment must receive a wider companynotation and include any place numberified as such for detention purposes. Stone-walls and iron bars do number a prison-make number are stone walls and iron bars a sine qua number to make a jail. Open jails are capital instances. any life under the companytrol of the State whether within high-walled or number may be a prison if the law regards it as such. House detentions, for example, Palaces, where Gandhiji was detained were prisons. Restraint on freedom under the prison law is the test. Licencsed where instant re-capture is sanctioned by the law and likewise parole, where the parole is number free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. This point is necessary to be cleared even for companyputation of 14 years under section 433A. Therefore, in each case, the question whether the grant of companyditional premature release answers the test laid down by this Court in the afore-quoted passage, would depend on the nature of the companyditions imposed and the circumstances in which the order is passed and is to be executed. No general observation can be made and we make numbere. In paragraph 10 of the memorandum of the Writ petition., three reasons have been assigned for invoking this Courts jurisdiction under Article 32 of the Constitution, viz., i the questions involved in this petition will affect the right of a large body of life companyvicts seeking premature release ii this Courts judgment in Bhagiraths case deviated from the ratio laid down in Godses case and, therefore, the entire law of remissions needed a review and iii the High Court of Rajasthan had refused to examine the merits of the various important questions of law raised before it. It is on account of the fact that this petition was in the nature of a representative petition touching the rights of a large number of companyvicts of the categories referred to in section 433A of the Code, that we have dealt with the various questions of law in extenso. Otherwise the petition companyld have been disposed of on the narrow ground that even though in view of sections 433A of the Code, premature release companyld number be ordered under sections 432/433 of the Code read with the 1958 Rules until the petitioner had companypleted 14 years of actual imprisonment, his release companyld be companysidered in exercise of powers under Articles 72/161 of the Constitution treating the 1958 Rules guidelines, if necessary. The relief claimed in the petition is two-fold, namely, a to grant a mandamus to the appropriate Government for the premature release of the petitioner by exercising companystitutional power with the aid of 1958 Rules and b to declare the petitioners companytinued detention as illegal and void. The petitioner has number companypleted 14 years of actual incarceration and as such he cannot invoke sections 432 and 433 of the Code. His companytinued detention is companysistent with section 433A of the Code and there is numberhing on record to show that it is otherwise illegal and void. The outcome of his clemency application under the companystitution is number put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the companypliance of its order. Under the circumstance numbermandamus can issue. The writ petition must, therefore, fail. It is hereby dismissed.

For the death of Smt. Rano Amarjeet Kaur allegedly under abnormal circumstances, the respondents were tried and companyvicted under Sections 304B and 498A of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for a period of seven years for the companymission of the offence under Section 304-B and 2 years for the offence under Section 498A IPC besides a fine of Rs. 100/-, each The appeal preferred by the accused respondents was allowed by the High Court vide the judgment impugned in this appeal by way of special leave. The facts of the case are that deceased Smt. Rano aged 20-21 years was married to Roshan, respondent number 2, about 1-1/2 years before the date of occurrence. After the marriage, respondent Inder Singh, father-in-law of deceased and Roshan, her husband are alleged to have started demanding dowry and upon the failure of the deceased to fulfill their demands, harassing her. On 19.7.1990, Dhanna Singh -PW4, father of the deceased got information that her daughter had companymitted suicide by taking poison allegedly on account of number being in a position to satisfy the demands of her in-laws. Dhanna Singh went to Kaithal, where the deceased was married, and saw her dead body. He reported the matter to the police alleging that his daughter ended her life by taking poison as she was tortured by the respondents accused for bringing inadequate dowry. On the basis of the statement of Dhanna Singh - PW4, formal FIR was recorded and the investigation companymenced. To prove the case, the prosecution examined a number of witnesses, most of whom were declared hostile at the trial. The trial companyrt relying upon the sole testimony of Dhanna Singh - PW4 companyvicted the accused and sentenced them to imprisonment as numbered earlier. In appeal, the High Court depreciated the evidence and for reasons recorded in the impugned judgment thought it number fit to rely upon the testimony of PW4 and thus, acquitted the accused persons. We have heard the learned companynsel appearing for the parties and perused the records. There is numberdenial of the fact that it is number the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused in the criminal cases. However, it is equally true that when a case is based upon the testimony of the only witness, his statement must be companyfident and inspiring, leaving numberdoubt in the mind of the companyrt being above from all suspicions, particularly, when one of the companyrts on facts has held that his testimony is number reliable. We have perused the statement of Dhanna Singh - PW4 and find that High Court was number companypletely wrong in finding that companyviction companyld number be based upon his testimony as he stood companytradicted in material particulars as deposed by him before the investigating officer and thereafter in the companyrt. Had the High Court number taken the view of PW4 being number reliable, the position would have been different. But if two views are possible, one which is favourable to the accused has to be accepted. Dhanna Singh, PVV4 had stated that the demands of dowry made by the respondents were satisfied by making payments through his son Gurmail Singh, PW7. In his statement recorded in the companyrt Gurmail Singh, brother of the deceased has number supported his father, Dhanna Singh, PW4. Similarly, Ram Singh, the brother of Dhanna Singh has categorically stated that the accused-respondents never demanded any item of dowry or amount from the father or relatives of Rano, deceased. No cash or buffalo was given to anyone of the accused persons by Dhanna Singh. Ramesh Singh, PW6 who is the companysin of the deceased also did number support the case of the prosecution. He deposed that he informed his maternal uncle about the death of Rano but did number tell the police regarding any demand of dowry or harassment. He went to the extent of stating that he did number at all make any statement before the investigating agency. In the circumstances of the case, we feel that it would number be safe to rely upon the sole testimony of PW4 for holding the accused guilty of the companymission of the offence with which they were charged by the trial companyrt.

R.SHAH, J. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.07.2014 passed by the High Court of Madhya Pradesh at Jabalpur passed in Criminal Appeal No.198 of 2014 by which the High Court has dismissed the said appeal and companyfirmed the judgment and order dated 23.12.2013 Signature Not Verified SUSHIL KUMAR RAKHEJA passed by the learned Additional Sessions Judge, Rehli, District Digitally signed by Date 2019.02.13 164520 IST Reason Sagar, Madhya Pradesh in Sessions Trial No.49 of 2013 and has Criminal Appeal No. 1112 of 2015 2 companyfirmed the companyviction of the original accused for the offences punishable under Section 376 2 f and Section 201 of the Indian Penal Code IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 POCSO Act and has companyfirmed the death penalty imposed, original accused has preferred the present appeal. That the appellant original accused was tried by the Trial Court for the offences punishable under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act for having companymitted the murder of the minor girl aged 71/2 years after raping her. On companysidering the incriminating material against the accused and on appreciation the evidences and having companysidered that the accused was last seen together with the deceased and that the frock of the victim was found lying on the company along with blood stains on bed mattress and bedsheet in the house of the accused, which was number explained by the accused, and also companysidering the medical evidence, the Trial Court companyvicted the accused for Criminal Appeal No. 1112 of 2015 3 the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act. The Trial Court sentenced the accused to life imprisonment and other terms of the imprisonment with fine. All the sentences were directed to run companycurrently. Learned Additional Sessions Judge also sentenced the accused to death penalty. Having sentenced the accused with death penalty, the learned Additional Sessions Judge made the reference to the High Court. Being aggrieved with the companyviction and the sentence, the accused also preferred Criminal Appeal No.198 of 2014 before the High Court. By the impugned companymon judgment and order, the High Court has decided the reference against the accused and has also dismissed the criminal appeal preferred by the accused, whereby, the High Court has companyfirmed the companyviction and sentence imposed by the Trial Court. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the companyviction and sentence of death penalty, the accused has preferred the present criminal appeal. Criminal Appeal No. 1112 of 2015 4 We have heard learned companynsel appearing on behalf of the accused at length. Learned companynsel appearing on behalf of the accused has vehemently submitted that in the facts and circumstances of the case, both the companyrts below have materially erred in holding the accused guilty for the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act. He has vehemently submitted that in the present case, there is numbereyewitness of the incident and the entire case is based on circumstantial evidence. It is submitted that unless and until the chain of evidence proves the guilt of the accused beyond reasonable doubt in companymitting the crime, both the companyrts have materially erred in companyvicting the accused. Alternatively, the learned companynsel appearing on behalf of the accused has prayed to companymute the death sentence to life imprisonment. Learned companynsel appearing on behalf of the accused has heavily relied upon the decision of this Court in Bachan Singh v. State of Punjab 1980 2 SCC 684 as well as the Criminal Appeal No. 1112 of 2015 5 recent decision of this Court in Shyam Singh alias Bhima v. State of Madhya Pradesh 2017 11 SCC 265. Heard the learned companynsel appearing on behalf of the respective parties at length. Considering the submissions made by the learned companynsel appearing on behalf of the respective parties and the findings recorded by the Trial Court on appreciation of evidence which were companyfirmed by the High companyrt, we are of the firm view that the companyviction of the accused for the offences under Section 376 2 f and Section 201 of the IPC as well as Sections 5 i , 5 m and 5 r read with Section 6 of the POCSO Act does number call for any interference as the findings recorded by the Sessions Court and companyfirmed by the High Court are on appreciation of evidence. 6.1 In the present case, prosecution has been successful in proving that the accused was last seen together with the victim that he gave one rupee companyn to the victim he told one of the witness viz Bharati, who was with the victim to go away thereafter the dead body of the victim was found near the house of the accused and that the frock of the victim was lying on the Criminal Appeal No. 1112 of 2015 6 company and the bed mattress and bedsheet were blood stained and the same was matched with the blood group of the victim and that the accused failed to explain the incriminating material evidence found against him in the statement under Section 313 of Cr.P.C, the Trial Court has rightly companyvicted the accused which has rightly been companyfirmed by the High Court. Learned companynsel appearing on behalf of the accused has failed to satisfy this Court how the findings recorded by the Trial Court, companyfirmed by the High Court, holding the accused guilty for having companymitted the murder after raping a minor girl are perverse and or companytrary to the evidence on record. Under the above circumstances, we companyfirm the judgment and order of the companyviction passed by the Trial Court, companyfirmed by the High Court. Now, so far as the request and the prayer made on behalf of the accused to companymute the death sentence to life imprisonment is companycerned, having heard the learned companynsel appearing on behalf of the accused on the question of death sentence imposed by the learned Sessions Court, companyfirmed by the High Court and Criminal Appeal No. 1112 of 2015 7 companysidering the totality and circumstances of the case and the decisions of this Court in the cases of Bachan Singh supra and Shyam Singh supra , we are of the opinion that the present case does number fall within the category of rarest of rare case warranting death penalty. We have companysidered each of the circumstance and the crime as well as the facts leading to the companymission of the crime by the accused. Though, we acknowledge the gravity of the offence, we are unable to satisfy ourselves that this case would fall in the category of rarest of rare case warranting the death sentence. The offence companymitted, undoubtedly, can be said to be brutal, but does number warrant death sentence. It is required to be numbered that the accused was number a previous companyvict or a professional killer. At the time of companymission of offence, he was 19 years of age. His jail companyduct also reported to be good. Considering the aforesaid mitigating circumstances and companysidering the aforesaid decisions of this Court, we think that it will be in the interest of justice to companymute the death sentence to life imprisonment. Criminal Appeal No. 1112 of 2015 8 In view of the above and for the reasons stated above, present appeal challenging the companyviction is hereby dismissed.

Delay in filing proof of re-export is companydoned. It is number necessary to go into any great detail. In respect of the goods with which we are companycerned, the adjudicating authority said, so far as is relevant, thus I order for companyfiscation of one unit Laser Imager valued Rs. 20 lakhs under Section 111 d of Customs Act, 1962. However, I give the option to M s. Siemens Ltd. Delhi for redeeming the Laser Imager on payment of fine of Rs. 6,00,000/- only and appropriate duty of Customs leviable thereon, if they desire to avail to keep it in India. I also give M s. Siemens the option to re-export the Laser Imager to Germany within 3 months from the date of receipt of this order and in such case numberduty will be chargeable. The Tribunal interpreted the order saying that if the appellant wanted to keep the goods in India then it should pay the redemption fine and duty and if, after payment of that duty, it still wanted to export them, it was entitled to duty drawback in terms of Section 74 of the Customs Act. But the adjudicating authority had also given the appellant the companycession that in case it was re-exporting the goods within three months, it need number pay the duty. The Tribunal did number vary this order. The appellant paid the redemption fine of Rupees Six lakhs. It was unable to re-export the goods within three months because of certain actions on the part of the Customs authorities with which we do number need to companycern ourselves here in any detail. To prevent further time being wasted, the appellant moved this Court by an interim application in this appeal and an order was passed thereon on 22nd February, 1999.

F. NARIMAN, J. Mr. T.N. Singh, learned companynsel appearing on behalf of the appellant-Nagar Nigam has assailed the judgment of the Allahabad High Court in which the respondent-Life Insurance Corporation of India was held number to be companyered by the expression insurance companypany under a numberification dated 30.01.1999 issued by the appellant. The judgment under appeal has held We also numberice that in Item No. 25 of the Schedule annexed with the Nagar Nigam, Allahabad Notification dated 13.01.99/Annexure-2 to the writ petition without an exception various Signature Not Verified establishments, undertakings etc. are all in Digitally signed by NATARAJAN Date 2017.08.05 124645 IST essence pure and simple business or companymercial Reason units. In category Ga, Serial No.1 of the list refers to Finance Company Chit Fund. It is followed by Item No.2 referring to Insurance Company each Branch . It goes to show that respondents provided license fee with respect to business of a Company in the nature of Financial Companies Chit Fund Companies and the like Insurance Companies dealing in general insurance i.e. other than Life Insurance-exclusively carried on by LIC of India . Aforesaid companyclusion is further discernible from the fact that the list does number embarrass in itself any charitable hospital or government hospital or other likewise establishments. In that view of the matter we do find a clear distinction between Insurance Company carrying on business under Insurance Act 1958 vis-a-vis the Life Insurance Corporation carrying business of life insurance under Life Insurance Corporation of India Act, 1956. Otherwise also Principle of Interpretation. It is an accepted principle of Statutory Interpretation that in a case where two interpretations of a provision imposing tax fee is possible, Court should accept the interpretation which leans in favour of the assessee i.e. the person who is sought to be burdened. Mr. B.B. Sawhney, learned Senior Counsel appearing on behalf of the respondents has sought to support the judgment under appeal by advancing slightly different arguments, which we have permitted him to advance. He has referred to the statutory authority to levy licence fee and read to us Section 438 of the Uttar Pradesh Municipal Corporations Act, 1959, which reads as follows- Certain things number to be kept, and certain trades and operations number to be carried on without licence.- 1 Except under and in companyformity with the terms and companyditions of a licence granted by the Municipal Commissioner, numberperson shall- a keep in or upon any premises any article specified in the bye-laws in any quantity or in excess of the quantity specified in the bye-laws as the maximum quantity of such article which may at one time be kept in or upon the same premises without a licence and b keep in or upon any building intended for or used as a dwelling or within fifteen feet of such building companyton, in pressed bales or boras or loose, in quantity exceeding four hundred-weight c keep, or allow to be kept, in or upon any premises horses, cattle or other four-footed animalsfor sale, for letting out on hire, for any purposes for which any charge is made or any remuneration is received, or for sale of any produce thereof d carry on or allow to be carried on, in or upon any premisesany trade or operations companynected with any trade specified in the bye-laws, any trade or operation which is dangerous to life or health or property, or likely to create a nuisance either from its nature or by reason of the manner in which or the companyditions under which, the same, is or is proposed to be carried on e carry on within the City, or use any premises, for the trade or operation of a farrier. He has referred to and relied upon sub-clause d of Section 438 which states that a licence fee can be levied only if any trade or operations companynected with any trade specified in the bye-laws is there. According to him, the expression trade would number, by any stretch of imagination, include the business of insurance since what is referred to in Section 438 is keeping for sale or otherwise goods or animals or the manufacture of goods in premises. To buttress his submission, he has referred to Section 2 sub-sections 78 , 79 and 80 which reads as follows- 78 trade effluent means any liquid either with or without particles of matter in suspension therein, which is so wholly or in part produced in the companyrse of any trade or industry carried on at trade premises and in relation to any trade premises, means any such liquid as aforesaid which is so produced in the companyrse of any trade or industry carried on at those premises, but does number include domestic sewage 79 trade premises means any premises used or intended to be used for carrying on any trade or industry 80 trade refuse means and includes the refuse of any trade, manufacture or business When the Court questioned learned companynsel for the appellant as to this interpretation, the answer it got was that bye-laws can be framed, in any event, under Section 541 and, in particular, sub-clause 41 which reads as follows- 41 fixing of fees for any licence, sanction or permission to be granted by or under this Act We were also referred to Section 452 which reads as follows- Licence fees, etc.- The Municipal Commissioner may charge a fee to be fixed by bye-law for any licence, sanction or permission which he is entitled or required to grant by or under this Act. It will be numbericed that both the aforesaid provisions, namely, Section 541 as well as Section 452 only refer back to a provision in the Act which specifies that a levy may be made for licence fees. We were number referred to any provision other than Section 438 for the purpose of locating such levy.

S. RADHAKRISHNAN, J. Leave granted. The appellants, who have appeared in the Entrance Examination for Post-Graduate Medical Selection 2012, Odisha are challenging the validity of Clause 11.2 of the Prospectus for selection of candidates for Post- Graduate Medical Courses in the Government Medical Colleges of Odisha for the Academic Year, 2012, as violative of Article 14 of the Constitution of India. The appellants appeared in the entrance examination as direct candidates Open Category and have qualified purely on merit for admission to Post Graduate Medical Courses 2012 in the Government Medical Colleges in Odisha. The Prospectus issued for Post-Graduate Medical Selection, 2012, Odisha deals with the availability of the seats both in the category of direct as well as in-service. Clause 4 of the Prospectus gives the category-wise details of the seats for P.G. Medical Courses in three Government Medical Colleges in Odisha for the Academic Year 2012. For the category MD MS Course, in-service category, 87 seats are available and for direct category, 86 seats are available, totaling 173 seats. Appellants, who fall under the category of direct candidates, as already indicated, are aggrieved by Clause 11.2 of the Prospectus which stipulates an additional weightage for candidates who are in employment of Government of Odisha Government of Odisha undertaking Government of India Public Undertaking located in Odisha and had worked in Rural Tribal Backward areas while applying through the category of direct candidates. Additional weightage of 10 of marks secured in the P.G. Entrance Examination per year of companypletion of service in -Rural Tribal Backward areas, subject to the maximum of 30 of marks secured in the entrance examination, in service to be given to those candidates who apply through direct category. Appellants submit that the above clause is wholly arbitrary, discriminatory and goes companytrary to the ratio laid down by this Court in State of M.P. Ors. V. Gopal D. Tirthani Ors. 2003 7 SCC 83 and Dr. Snehelata Patnaik Ors. V. State of Orissa Ors. 1992 2 SCC 26. Appellants have also prayed for quashing the Medical Council of India in short MCI Notification No. 51210 of 17.11.2009 providing weightage marks to in-service candidates applying through the direct category, which according to the appellants, is a clear encroachment and appropriation of seats earmarked for the direct category candidates which has to be filled up purely on merit, subject to rule of reservation. Appellants challenge was repelled by the learned single Judge of the Orissa High Court as well as the Division Bench. Hence, these appeals. Shri Shyam Diwan, learned senior companynsel appearing for the appellants submits that providing additional weightage marks to in-service candidates who had rendered service in - Rural Tribal Backward areas while companysidering their applications for admission through the direct candidate category amounts to making an artificial differentiation between a homogenous class i.e. direct candidates and in-service candidates. Learned senior companynsel pointed out that on account of additional weightage benefit given to the doctors who have rendered less than five years of service in Rural Tribal Backward areas both in Government of Odisha or Public Sector Undertakings owned by the State Government, will be an advantageous position and that would amount to drawing an artificial differentiation between a homogeneous class i.e. direct candidates and in-service candidates and also within the inservice candidates, which action would be hit by Article 14 of the Constitution of India. Learned senior companynsel also pointed out that the same further amounts to providing horizontal reservation within the seats meant for in-service candidates. Learned senior companynsel pointed out that the admission through direct candidates route be made purely on merit on the basis of the companymon entrance examination and number on the basis of the additional weightage granted to a few doctors who -had the advantage of serving in Rural Tribal Backward areas while in employment in Government of Orissa, Public Sector Undertakings owned by the State Government. Mrs. Indu Malhotra, learned senior companynsel, also submitted that such candidates can always companye through the in-service category, a numbermal route for admission to PG Medical Course. Learned senior companynsel pointed out that additional weightage is always available to them when they companye through the in-service category route, however, the same cannot be extended to them while applying for admission as direct category candidates, lest they may make an inroad into the direct category, which is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. Shri Krishnan Venugopal, learned senior companynsel companytesting on behalf of the respondents, on the other hand, submitted that there is numberillegality in Clause 11.2 of the Prospectus which gives additional weightage to in-service candidates who fall under the direct candidates route, as well as third proviso added after clause 9 2 d of the Post Graduate Medical Education Amendment -Regulations 2000 as amended by Post Graduate Medical Education Amendment Regulation 2009 Part II vide Notification dated 17.11.2009. Learned senior companynsel pointed out that classification of candidates as per Clause 6 and sub-clauses providing weightage marks to such in-service candidates as per Clause 11.2 of the Prospectus, cannot be termed as discrimination between direct and inservice candidates and amongst the in-service candidates. Learned senior companynsel also pointed out that the weightage marks given to in-service candidates who have rendered service in Rural Tribal Backward areas and qualified in the entrance examination, cannot be termed as horizontal reservation as it is only the weightage of marks given for rendering service to the people in Rural Tribal Backward areas, in view of the law laid down by this Court in Gopal D. Tirthani supra . Shri Kirti R. Mishra, learned senior companynsel appearing on behalf of the 4th respondent, submitted that the prospectus has been issued strictly in accordance with the Notification No. 51210 dated 17.11.2009 issued by the Medical Council of India, whereby additional weightage marks given as an incentive for determining -the merit in the entrance examination passed for P.G. admission. Learned senior companynsel submitted that the weightage in marks is given as an incentive at the rate of 10 of the marks obtained up to maximum of 30 of the marks obtained for each year of service rendered in remote or difficult areas. It was also pointed out that the additional benefit is an incentive only and by awarding such an incentive, there is numberviolation of Article 14 of the Constitution of India. Learned companynsel appearing for the MCI referred to the companynter affidavit filed on its behalf and submitted that the third proviso to Regulation 9 2 d of the Post Graduation Regulation, 2000 as amended does number provide for or companytemplate any separate channel of entry for in service candidates in admission to P.G. Degree Courses like that provided for P.G. Diploma Courses. The proviso only provides that a weightage may be given at the rate of 10 of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30 of the marks obtained in the entrance examination and has secured minimum required -percentage of marks for government service rendered in remote difficult areas. We heard companynsels on either side at length. Medical Council of India, in exercise of its powers companyferred by Section 33 read with Section 20 of the Indian Medical Council Act, 1956, framed the Postgraduate Medical Education Regulations, 2000. Clause 9 of the Regulations 2000 deals with the selection of the postgraduate students. Clause 9 1 was substituted in terms of Notification published in the Gazette of India on 20.10.2008 and the same number reads as follows 9 1 a Students for Post Graduate medical companyrses shall be selected strictly on the basis of their Inter-se Academic Merit. b 50 of the seats in Post Graduate Diploma Courses shall be reserved for Medical Officers in the Government service, who have served at least three years in remote and difficult areas. After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and or difficult areas. Clauses 9 1 a and 9 1 b when read together would indicate that 50 seats are earmarked for direct category candidates and -50 seats are earmarked for in service category. Clause 9 1 a clearly states that students for post graduate medical companyrses shall be selected strictly on the basis of their inter-se academic merit and Rule 9 1 b states that 50 of the seats stand reserved for in service candidates who have at least three years service in remote and difficult areas. The methodology to be adopted for determining academic merit is provided in Clause 9 2 , which is relevant for our purpose and hence extracted hereunder 9 2 For determining the Academic Merit, the University Institution may adopt the following methodology- On the basis of merit as determined by a companypetitive test companyducted by the state government or by the companypetent authority appointed by the state government or by the university group of universities in the same state or On the basis of merit as determined by a centralized companypetitive test held at the national level or On the basis of the individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise. Or Combination of a and c Provided that wherever Entrance Test for postgraduates admission is held by a state government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical companyrse shall be 50 percent for general category candidates and 40 percent for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Provided further that in Non-Governmental institutions fifty percent of the total seats shall be filled by the companypetent authority numberified by the State Government and the remaining fifty percent by the management s of the institution on the basis of Inter-se Academic Merit. However, the following proviso was added after clause 9 2 d in terms of Gazette Notification published on 17.11.2009 and the same reads as follows Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive at the rate of 10 of the marks obtained for each year in service in remote or difficult areas upto the maximum of 30 of the marks obtained. Above Clause 9, therefore, stipulates the methodology to be adopted for determining the inter-se academic merit of candidates who fall under direct category and of those candidates who ultimately fall under 50 seats reserved for in-service candidates. Clause 9 1 a clearly stipulates that students for postgraduate medical companyrses shall be selected strictly on the basis of inter-se academic merit. The main companytroversy in this case is whether the candidates from direct admission category has to be selected strictly on the basis of their inter-se academic merit or whether it is legal to dilute the merit to the extent as indicated in the third Proviso to Clause 9 2 d . Candidates who fall in the direct candidates category, whether they are fresh from the companylege or serving elsewhere, either on Government service or under public-sector undertakings, working in rural Tribal area or otherwise or doctors who are serving in private hospitals or nursing homes etc. situate in remote or difficult area, all fall in that direct category and all of them have to take a companymon entrance examination and admission criteria is only companyparative merit. When the companyparative merit is the only criteria in the open category, the question is whether a weightage can be given exclusively to those candidates who are in -service of State of Odisha Government of Odisha undertaking, whether companytractual temporary ad-hoc regular on the ground that they had worked in rural tribal backward areas. It may be numbered that 50 seats have already been earmarked for such category of candidates which they can always claim depending upon the inter-se merit after companyplying with other eligibility criteria. Question is whether those in-service candidates can appropriate seats from the open category where seats are only few. Clause 11.2 in the Prospectus issued by the P.G. Medical Selection Committee 2012, giving additional weightage to those in-service candidates, reads as follows 11.2 Those in-service candidates who have qualified in the Entrance Examination and worked in Rural Tribal Backward areas shall be awarded an additional weightage of 10 of the marks secured in the G. Entrance Examination per year of companypletion service in Rural Tribal Backward areas , subject to maximum of 30 of marks secured in entrance examination, vide MCI Notification No.51210/ dt.17.11.2009 In Form No.Appendix-III A . Candidates fall under the Direct Category is provided under Clause 6 of the Prospectus, which reads as follows CATEGORY OF CANDIDATES 6.1. A Direct Candidate is one who at the time of application 6.1.1 Is son daughter spouse of a person who has served in Defence Service for minimum of 5 years by 31st December, 2011. 6.1.2 Is either unemployed or in the employment of Government of Odisha, but number companypleted five years of service which includes all categories of employment like companytractual temporary ad-hoc regular by 31st December, 2011 6.1.3 in the employment of Govt. of Orissa Public Sector Undertaking Govt. of India Public Sector Undertaking located in Odisha. The employer has to sponsor the candidates for entire period must submit the sponsorship certificate as in Appendix III. Clause 6.2 deals with In-service candidate which reads as follows 6.2 An In-service candidate is one who at the time of application 6.2.1 Is in the employment of Government of Odisha and has companypleted a length of 5 years of service which includes all categories of employment like companytractual temporary ad-hoc regular by 31st December, 2011, excluding at-a-stretch leave of any kind, of 30 days or more. However, the maternity leave is exempted from this exclusion and shall be companynted towards the length of five years of service. Note In-service and Direct candidates in employment under Government of Odisha at the time of application - are advised to submit their applications along with the required documents directly to the Convenor, P.G. Medical Selection Committee 2012, under intimation to their Employer. Copy of such intimation is to be attached. Clauses 6.1, 6.2 and 11.2, quoted above, clearly recognize two categories of candidates i.e. direct and in-service. Direct is a very wide category open category where students for P.G. Medical Courses shall be selected strictly on the basis of inter-se academic merit, as determined by a companypetitive test and in-service is a restricted category of candidates who are in service of the State Government State owned undertakings. The details of the availability of seats are provided in Clause 4 of the prospectus which is as follows Category-wise Distribution of Seats Category Unreserved Total MD MS Course ST 12 SC 8 PH 3 Defence 3 Greencard 5 In-servic62 10 7 3 0 5 87 e Direct 59 11 7 2 3 4 86 Total 121 21 14 5 3 9 173 Seats in the direct category are also reserved for members of SC ST companymunities and also to those SC ST candidates migrated from their state of origin subject to certain companyditions. Clause 6.4 reserves seats for children or spouse of service Ex-service personnel Defence . Clause 6.5 states that seats are reserved for physically handicapped candidates also subject to rules governing them. In other words, several reserved candidates have also to be accommodated in the 50 Open Category. 50 seats ear marked for the in-service candidates is kept intact, for which inservice candidates can always aspire and if they satisfy the companydition of rural Tribal service, they will definitely get weightage. Now by virtue of third proviso to Clause 9 2 d and clause 11.2 of the Prospectus candidates who fall under the in-service category are given a weightage through which they can make an in-road into the direct candidates category while retaining their rights to get admission for P.G. Course through in-service category. Appellants lament that already 66 reservation is there in the State for P.G. Admissions, including all reservations and only 34 seats are available for direct unreserved category on merit and if third -proviso to Clause 9 2 d of the M.C.I. Regulation and Clause 11.2 of the Prospectus are given effect to then those seats would be occupied by the in-service candidates large in number and candidates who companyes strictly on the basis of merit through the companypetitive examination will have to stand out. This Court in Gopal D. Tirthani supra upheld the allocation of 20 seats for in-service candidates and held that weightage can be given to inservice candidates for their having rendered specified number of years of service in rural tribal areas which is number hit by Article 14 of the Constitution of India. This Court held that allocation of 20 of seats in Post Graduation in the University of Madhya Pradesh for in-service candidate is number a reservation, it is a separate and exclusive channel of entry or source of admission, validity thereof cannot be determined on the companystitutional principles applicable to companymunal reservations. Having so said, the Court held as follows Firstly, it is a case of post-graduation within the State and number an All-India quota. Secondly, it is number a case of reservation, but one of only assigning weightage for service rendered in rural tribal areas. Thirdly, on the view of the law we have taken hereinabove, the assigning of weightage for service - rendered in rural tribal area does number at all affect in any manner the candidates in open category. Therefore, in Tirthani case, it has been categorically held that it is permissible to assign a reasonable weightage to services rendered in rural tribal areas by the in-service candidates for the purpose of determining inter se merit within the class of in-service candidates who have qualified in the pre-PG test by securing the minimum qualifying marks as prescribed by the Medical Council of India. Regulation 9 framed by the Medical Council of India was also numbericed by this Court so also the existence of two categories 1 direct category open category candidates and 2 in-service category candidates. Weightage given for rendering service in rural tribal areas, so far as in-service candidates, was upheld numbericing that the assigning of weightage for service rendered in rural tribal areas would number affect in any manner the candidates in open category. We may, in this companynection, refer to few earlier judgments in the matter of giving weightage to in-service candidates although those decisions were also companysidered in Tirthani case. In State of -U.P. and Others. v. Pradip Tandon and Others. 1975 1 SCC 267, reservation in favour of people in hill areas and Uttarakhand was held to be companystitutionally valid as they were socially and educationally backward classes of citizens. Reservation in favour of rural areas was found difficult to accept as it was sought to be justified on the test of poverty as the determining factor of social backwardness. This Court held that rural element did number make a class by itself because it companyld number be accepted that the rural people were necessarily poor or socially and educationally backward just as the urban people were number necessarily rich. What was being dealt with in Pradip Tandon case was a reservation and number a weightage. Later in Dinesh Kumar Dr. II v. Motilal Nehru Medical College 1986 3 SCC 727, the two-Judges Bench examined a scheme of examination for admission to postgraduate companyrses suggested by the Government of India stipulating a weightage equivalent to 15 per cent of the total marks obtained by a student at the All-India Entrance Examination, being given if he had put in a minimum of 3 years of rural service. In that case, of companyrse, this Court observed that it was eminently desirable that some incentive should be given to the doctors to go to the rural -areas because there was companycentration of doctors in the urban areas and the rural areas appeared to be neglected. The observation made in Dinesh Kumar case was companysidered by three-Judges Bench of this Court in Dr. Snehelata Patnaik supra and this Court opined that the authorities might well companysider giving weightage upto maximum of 5 per cent of marks in favour of in-service candidates who had done rural service for five years or more, the determination of which have to be made by the authorities. We have referred to the above mentioned judgments only to indicate the fact that this Court in various judgments has acknowledged the fact that weightage companyld be given for doctors who have rendered service in rural tribal areas but that weightage is available only in in-service category, to which 50 seats for PG admission has already been earmarked. The question is whether, on the strength of that weightage, can they encroach upon the open category, i.e direct admission category. We are of the view that such encroachment or inroad or appropriation of seats earmarked for open category candidates direct admission category would -definitely affect the candidates who companypete strictly on the basis of the merit. The purpose and object for giving weightage to in-service candidates who have rendered rural tribal service is laudable and their interest has been taken care of by the Medical Council of India as well as the prospectus issued for admission to the various medical companyleges in State of Odisha but they have to companye through the proper channel i.e. the channel exclusively earmarked for in-service candidates and number through the channel earmarked for candidates in the open category. The in-service candidates are also free to companypete through the open category just like any other who fall under that category. Further, it is also relevant to numbere those who get admission in post graduate companyrses through the open category have to execute a bond stating that they would serve rural tribal areas after companypletion of their post-graduation. In fact, weightage is given to those candidates who have rendered service in rural tribal areas when they companypete for admission to PG Medical Courses in in-service category for whom 50 seats are earmarked. We also find another fallacy in Clause 11.2 read with Clause 6.2.1 of the prospectus. Clause 6.2.1 of the prospectus says in-service candidate is one who at the time of application is in the employment in Government of Odisha and has companypleted a length of 5 years of service which include all categories of employment like companytractual temporary ad-hoc regular by 31st December 2011. Therefore, a doctor who is doing rural service on companytract or on temporary basis or on ad hoc basis by 31st December 2011 will also get the benefit. At the same time, the candidates who pass out MBBS either in regular service or in companytractual temporary ad hoc in a private hospital even though serving in a remote tribal areas would number get that benefit even though those doctors are also rendering the same service. Every doctor who goes out of medical companylege after MBBS would number get an opportunity to serve in a rural tribal area by way of companytractual temporary ad-hoc or regular service offered by the State of Odisha or a public sector. Few may fall in that category for various reasons and they get an advantage and those who get that advantage of companyrse can, claim weightage when they are being companysidered in the inservice category. We numberice that the seats earmarked for the open category by way of merit are few in number and encroachment by the in-service candidates into that open category would violate clause 9 1 a of the MCI regulations, which says students for PG medical companyrses shall be selected strictly on the basis of the inter se academic merit i.e. on the basis of the merit determined by the companypetent test. Direct category or open category is a homogeneous class which companysists of all categories of candidates who are fresh from companylege, who have rendered service after MBBS in Government or private hospitals in remote and difficult areas like hilly areas, tribal and rural areas and so on. All of them have to companyplete on merit being in the direct candidate category, subject to rules of reservation and eligibility. But there can be numberencroachment from one category to another. Candidates of in-service category cannot encroach upon the open category, so also vice-versa. We find, except State of Odisha and, to some extent, State of Tamil Nadu, numbere of the other States in India, has incorporated such a clause in any of their prospectus for admission to the graduate medical companyrses and students who fall under the open -category in those States are, therefore, number affected by such weightage. Medical Council of India in the companynter affidavit raised some objections for giving admissions beyond the sanctioned admission capacity. Reference was made to Section 10A of the MCI Act which provides that admissions can be made by Medical Colleges only within sanctioned capacity for which permission under Section 10A recognition under Section 11 2 has been granted. This Court in State of Punjab and Others v. Renuka Singla and Others 1994 1 SCC 175 held that the High Court or the Supreme Court cannot be generous or liberal in issuing such directions which in substance amount to directing the authorities companycerned to violate their own statutory rules and regulations, in respect of admissions of students. Technical education, including medical education, requires infrastructure to companye with the requirement of giving proper education to the students, who are admitted. Taking into companysideration, the infrastructure, equipment, staff, the limit of the number of admissions is fixed by the Medical companyncil of India. Further, in Medical Council of India v. State of Karnataka 1998 6 SCC 131, this Court held the number of students admitted cannot be over and above that fixed by the Medical Council as per the Regulations and that seats in medical companyleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. In Mriduldhar Minor and another v. Union of Indiaand Others 2005 2 SCC 65, this Court held as follows Having regard to the professional companyrses into companysideration, it deserves to be emphasized that all companycerned including Governments, State and Central both, MCI DCI, companyleges, new or old, students, Boards, universities, examining authorities etc. are required to strictly adhere to time schedule wherever provided for there should number be mid-stream admission admission should number be in excess of sanctioned intake capacity or in excess of quota of any one, whether Stare or Management. The carrying forward of any unfilled seats of one academic year to next academic year is also number permissible. It is unnecessary to multiply the judgment rendered by this Court, on this point, the question is how to mould the reliefs, especially when we cannot, in the facts and circumstance of the -case, direct the State of Odisha and the Medical Council of India to increase the seats so as to accommodate the appellants. Seats which are legitimately due to the appellants are being occupied by the candidates from in-service category. Contention was raised by learned companynsel, appearing for some of the in-service candidates who got admission that they shall number be displaced since they have already left their jobs from the State Government service or the State owned undertakings after having got admission for P.G. Medical Course. But, going by the stand taken by MCI and on the basis of the decided cases of this Court, it would number be possible to increase the seats, however, candidates who are meritorious should get admission. Contention was raised that all the affected candidates were number made parties to the writ petition and, therefore, without hearing them, numberorders shall be passed against them thereby depriving them of their seats. Learned companynsel for the appellants has stated that they had approached the High Court of Orissa on 13.01.2012 i.e soon after the prospectus was issued and the declaration of the provisional merit list took place on 10.04.2012 subsequent to the -filing of the writ petition. Learned Single Judge rendered the judgment before the results were declared on 23.03.2012 and the Division Bench dismissed the appeal on 09.04.2012. The first companynseling was companyducted between 21.04.2012 to 23.04.2012. Since the appellants had approached the companyrt on 13.01.2012 and the matter was sub judice before a companyrt of law and this proceeding is only a companytinuation of the writ petition filed by them on 13.01.2012, we are, of the view, that the admissions given to the in-service candidates necessarily would be subject to the outcome of the petitions pending before the companyrt of law. Therefore, in our view, number-impleadment of few of those candidates in these proceedings would number affect the legitimate claim raised by the appellants. Learned companynsel appearing for the companytesting respondents submitted that they are undergoing studies from May 2012 onwards and, at this distance of time, if they are displaced, that will cause serious injustice to them since they have already left the government service public sector undertakings for joining the post graduate companyrse.

GANGULY, J. Leave granted. Maharashtra University of Health Sciences through its Registrar and its Grievance Committee and Management Council as appellants impugn the judgment dated 8.6.07 rendered by the Nagpur Bench of Bombay High Court on several writ petitions filed by the Management Council and the employees. The basic facts of the case are as under The appellant No.1, the Maharashtra University of Health Sciences has been companystituted under Maharashtra University of Health Sciences Act, 1998 for short the said Act . The 2nd appellant is the Committee companystituted under Section 53 of the said Act and the 3rd appellant is the Management Council of the appellant No.1 and also companystituted under the said Act. The 1st respondent in this appeal is a public trust registered under the Bombay Public Trust Act, 1950 and the said trust runs several companyleges including the 2nd respondent. The 3rd respondent is the Principal of the said companylege and the 4th respondent is a Lecturer therein. Both the 5th and 6th respondents were appointed Lecturers in the said companylege but their appointments were number approved but they companytinued to work as lecturers in the said companylege. On 7.8.05 a representation was made by the 5th respondent to the effect that after she had served the said companylege for the last three and a half year suddenly she was informed on 6.8.05 that the companylege authorities accepted her resignation. That was shocking to her since the 5th respondent companyld never resign as she had several liabilities and had numberother income. The education of her two children had to be looked after while her husband was disabled in view of an accident and her father-in-law was a retired person. In her representation to the Vice Chancellor of the appellant-University she stated that at the time of her appointment, companylege authorities took her signature on a resignation letter without mentioning any date and that might have been used to remove her from the companylege. The University on receipt of the said representation sent a letter to the said companylege on 19th August, 2005 for its explanation and explanation was submitted by the said companylege on 31.08.05. Thereafter, the appellant-University formed a Committee to look into the grievance of the 5th respondent and the said Committee after visiting the companylege and companyducting an enquiry on 29.08.05, 01.09.05 and 02.09.05 submitted its report to the appellant-University. Again on 09.09.05, the 5th respondent submitted another representation to the Grievance Committee of the appellant-University which was also forwarded to the said companylege for its response. That was submitted by the said companylege on 04.10.05 and 08.11.05. Thereafter, the appellant-University gave the 5th respondent a hearing in respect of her companyplaint which she raised in her representation. The said meeting was held before the Grievance Committee and the Grievance Committee gave a detailed report on the basis of its enquiry. Before the report was given, the 5th respondent and the person against whom companyplaint was lodged were examined along with some witnesses. Thereafter, the Grievance Committee took a decision to refer the matter to the State Commission for Women for further investigation and it was decided that the report of the said Commission was to be companysidered in the next meeting of the Committee. Thereafter, on 18th January, 2006 the 6th respondent lodged a further companyplaint with the police station Sadar against the 4th respondent as a result of which offence punishable under Section 509 of I.P.C was registered against the 4th respondent and the Summary Criminal Case No.4332/06 was registered in the Court of M.F.C., Nagpur. On 19.01.06, 5th respondent also lodged report with the police station and on the basis of the said report an offence came to be registered on 04.02.06 vide Crime No.22/06 under Sections 468, 471, 354, 509, 506 read with Section 34 of the Indian Penal Code. In companynection with the aforesaid criminal case, the 3rd and 4th respondents were arrested by the police on 05.02.06 and were remanded to police custody for two days. They were granted bail by the Court of J.M.F.C., Nagpur on 08.02.06. The Principal of the companylege was also granted anticipatory bail on 06.02.06 and which order was subsequently companyfirmed on 23.02.06. Then on 18.02.06, the services of the 6th respondent were terminated by the said companylege. In view of the companyplaint of the 6th respondent, the University called the 1st, 2nd and 4th respondents for hearing on 08.03.06 before the Grievance Committee and on 04.03.06 the 6th respondent sent a companyplaint to the appellant- University seeking action against the respondents. In that companyplaint the 6th respondent gave details of ill-treatment and sexual harassment which she and other lady lecturers and employees of the companylege including the 5th respondent were subjected to by the authorities of the said companylege. In view of such companyplaints, the Grievance Committee of the University met on 8th March, 2006 to companysider the issues in the light of companyplaints received by the 6th respondent against the companylege authorities. Pursuant to the meeting of the Grievance Committee, the University by its companymunication dated 21st March, 2006 directed the 1st and 2nd respondents to take steps against the 3rd and 4th respondents with a direction to suspend them and it was also directed that the 5th respondent may be reinstated. It was also directed that approval granted in respect of the service of 3rd and 4th respondent be frozen. A reply was sent by the 1st respondent to the order of the appellant-University dated 21.03.06. Thereafter, the appellant-University further informed the companylege authorities that the decision to freeze the approval of the 3rd and 4th respondents was taken under the provision of Clause 25.2 of the University Direction No.25/01 and it was done in accordance with Section 16 8 of the said Act. The governing body of the respondent companylege in its meeting held on 27.03.06 refused to companyply with the direction issued by the University by its letter dated 21st March, 2006 and this fact was companymunicated to the appellant by the said companylege. On 1st April 2006, the 1st and 2nd respondents addressed a letter of the same date and companytended therein that the appellant-University does number have the power to freeze the approval of appointment of permanent teachers like the 3rd and 4th respondents and the appellant was asked to withdraw its companymunication dated 29th March, 2006. Assailing those companymunications dated 21st March, 2006 and 29th March, 2006 of the appellants, the respondents namely, the Trust, the College Authorities and those two teachers filed a writ petition being 1976/06 companytending therein that the appellant-University has numberauthority to issue those companymunications. That writ proceeding was heard on companytest by the Honble High Court. By the impugned judgment dated 08.06.07, the Honble High Court partly allowed the writ petition and quashed the orders passed by the University in respect of action taken against those respondents on the basis of the allegations of 5th and 6th respondent of sexual harassment at the work place. Challenging the said judgment, this Court has been moved. The main question on which the matter was argued by the appellants was that the High Court was in error in deciding that the Grievance Committee companystituted under Section 53 of the said Act, has numberjurisdiction to take companynizance of any companyplaint filed by the 5th and 6th respondent, as they are number approved teachers of the respondent companylege. In order to appreciate the legal issues involved in this argument, it is better to set out the definition of teacher under Section 2 35 of the said Act. Section 2 35 of the said Act runs as under- 2 35 teachers means full time approved Demonstrators, Tutors, Assistant Lecturers, Lecturers, Readers, Associate Professors, Professors and other persons teaching or giving instructions on full time basis in affiliated companyleges or approved institutions in the university Section 53 of the said Act provides as follows 53. 1 There shall be a Grievances Committee in the University to deal with the grievances of teachers and other employees of the University, Colleges, institutions and recognised institutions and to hear and settle grievances as far as may be practicable within six months, and the companymittee shall make a report to the Management Council. It shall be lawful for the Grievances Committee to entertain and companysider grievances or companyplaints and report to the Management Council for taking such action as it deems fit and the decisions of the Management Council on such report shall be final. The Grievances Committee shall companysist of the following members, namely The Pro-Vice Chancellor, - Chairperson Four members of the management companyncil numberinated by the Management Council from amongst themselves - Members The Registrar - Member Secretary The Registrar shall number have a right to vote. Construing the aforesaid two Sections, the High Court, following the principle of ejusdem generis held that 5th and 6th respondent, being unapproved teachers, do number companye within the definition of teachers under Section 2 35 quoted above. This Court cannot accept the aforesaid decision of the High Court for various reasons indicated hereinafter. If the definition of teachers, as quoted above, is properly perused it would appear that within the definition of teachers number only full time approved Demonstrators, Tutors, Assistant Lecturers, etc., are included but the definition is wide enough to include and other persons teaching or giving instructions on full time basis in affiliated companyleges or approved institutions in the university. Similarly, the Grievance Committee which is established under Section 53 of the said Act has also been given wide powers to deal with number only the grievances of teachers but also of other employees of the University, companylege, institution and to settle their grievances as far as may be practicable within a certain time-frame. Sub-section 2 of Section 53 of the said Act provides for companysequential steps which the Grievance Committee may take after entertaining the grievances of the category of persons named in Section 53 1 . Section 53 3 provides for the companystitution of the Grievance Committee and Section 53 4 is procedural in nature. On a companybined reading of Section 2 35 with Section 53 of the said Act, this Court is of the opinion that in respect of unapproved teachers also Grievance Committee has the jurisdiction to entertain companyplaint and undertake the statutory exercise companyferred on it under Section 53 of the said Act. The definition of teachers under Section 2 35 is wide enough to include even unapproved teacher. In fact the said definition has two parts, the first part deals with full time approved Demonstrators, Tutors, Assistant Lecturers, Lecturers etc. and the second part deals with other persons teaching or giving instructions on full time basis in affiliated companyleges or approved institutions in the University. Even though the approved teachers and those other persons who are teaching and giving instructions fall in two different classes both are encompassed with the definition of teacher under Section 2 35 of the Act. The word and before other persons is disjunctive and indicate a different class of people. A class is a companyceptual creation taking within its fold numerous categories of persons with similar characteristics. Here in the group of other persons fall those who, on full time basis, are teaching or giving instructions in companyleges affiliated with the University and they are also teachers even if they are unapproved. This seems to be the purport of Section 2 35 of the Act. It cannot be disputed that 5th and 6th respondent were engaged in teaching on full time basis in the respondent companylege, which is an affiliated companylege of the appellant-University. This Court is companystrained to observe that the Honble High Court has number properly appreciated the principle of ejusdem generis in understanding the scope of Section 2 35 read with Section 53 of the Act. The Latin expression ejusdem generis which means of the same kind or nature is a principle of companystruction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This is a principle which arises from the linguistic implication by which words having literally a wide meaning when taken in isolation are treated as reduced in scope by the verbal companytext. It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some companytrary indication See Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule 7 Conv NS 119 . This ejusdem generis principle is a facet of the principle of Noscitur a sociis. The Latin maxim Noscitur a sociis companytemplates that a statutory term is recognised by its associated words. The Latin word sociis means society. Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their companyour and their companytents are to be derived from their companytext See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover, 1957 AC 436 at 461 of the report But like all other linguistic canons of companystruction, the ejusdem generis principle applies only when a companytrary intention does number appear. In instant case, a companytrary intention is clearly indicated inasmuch as the definition of teachers under Section 2 35 of the said Act, as pointed out above, is in two parts. The first part deals with enumerated categories but the second part which begins by the expression and other envisages a different category of persons. Here and is disjunctive. So, while companystruing such a definition the principle of ejusdem generis cannot be applied. In this companytext, we should do well to remember the caution sounded by Lord Scarman in Quazi v. Quazi - 1979 3 All-England Reports 897. At page 916 of the report, the learned Law Lord made this pertinent observation- If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it the rule is helpful. But, if it is number, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule, like many other rules of statutory interpretation, is a useful servant but a bad master. This Court while companystruing the principle of ejusdem generis laid down similar principles in the case of K.K. Kochuni v. State of Madras and Kerala, AIR 1960 SC 1080. A Constitution Bench of this Court in Kochuni supra speaking through Justice Subba Rao as His Lordship then was at paragraph 50 at page 1103 of the report opined- The rule is that when general words follow particular and specific words of the same nature, the general words must be companyfined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is number an inviolable rule of law, but is only permissible inference in the absence of an indication to the companytrary. Emphasis supplied Again this Court in another Constitution Bench decision in the case of Amar Chandra Chakraborty The Collector of Excise, Govt. of Tripura, Agartala and others, AIR 1972 SC 1863, speaking through Justice Dua, reiterated the same principles in paragraph 9, at page 1868 of the report. On the principle of ejusdem generis, the learned Judge observed as follows- The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when i the statute companytains an enumeration of specific words ii the subjects of the enumeration companystitute a class or category iii that class or category is number exhausted by the enumeration iv the general term follows the enumeration and v there is numberindication of a different legislative intent. Emphasis supplied As numbered above, in the instant case, there is a statutory indication to the companytrary. Therefore, where there is statutory indication to the companytrary the definition of teacher under Section 2 35 cannot be read on the basis of ejusdem generis number can the definition be companyfined to only approved teachers. If that is done, then a substantial part of the definition under Section 2 35 would become redundant. That is against the very essence of the doctrine of ejusdem generis. The purpose of this doctrine is to reconcile any incompatibility between specific and general words so that all words in a Statute can be given effect and numberword becomes superfluous See Sutherland Statutory Construction, 5th Edition, page 189, Volume 2A . It is also one of the cardinal canons of companystruction that numberStatute can be interpreted in such a way as to render a part of it otiose. It is, therefore, clear where there is a different legislative intent, as in this case, the principle of ejusdem generis cannot be applied to make a part of the definition companypletely redundant. By giving such a narrow and truncated interpretation of teachers under Section 2 35 , High companyrt has number only ignored a part of Section 2 35 but it has also unfortunately given an interpretation which is incompatible with the avowed purpose of Section 53 of the Act. The purpose of setting up the Grievance Committee under Section 53 of the Act is to provide an effective grievance redressal forum to teachers and other employees. Any interpretation of teachers under Section 2 35 of the Act which denies the persons companyered under Section 2 35 an access to the said forum companypletely nullifies the dominant purpose of creating such a forum. It goes without saying that unapproved teachers need the protection of this forum more than the approved teachers. By creating such a forum the University virtually exercised its authority and jurisdiction as a loco-parentis over teachers-both approved and unapproved and who are working in various companyleges affiliated with it. The idea is to give such teachers and employees a protection against any kind of harassment which they might receive in their work place. The creation of such a forum is in tune with protecting the dignity of the individual which is one of the companye companystitutional companycepts. Therefore, the doctrine of ejusdem generis cannot be pressed into service to defeat this dominant statutory purpose. In this companytext we may usefully recall the observations of the Supreme Court of United States in Guy T. Helvering v. Stockholms Enskilda Bank, 293 US 84, 88-89, 79 L Ed 211, 55 S Ct 50, 52 1934 , as underwhile the rule is a well-established and useful one, it is, like other canons of statutory companystruction, only an aid to the ascertainment of the true meaning of the statute. It is neither final number exclusive. To ascertain the meaning of the words of a statute, they may be submitted to the test of all appropriate canons of statutory companystruction, of which the rule of ejusdem generis is only one. If, upon a companysideration of the companytext and the objects sought to be attained and of the act as a whole, it adequately appears that the general words were number used in the restricted sense suggested by the rule, we must give effect to the companyclusion afforded by the wider view in order that the will of the Legislature shall number fail. Emphasis supplied Therefore, with great respect, this Court is companystrained to hold that the Honble High Court possibly fell into an error by holding that the Grievance Committee has numberjurisdiction to entertain the companyplaints made by 5th and 6th respondent since they are number approved teachers.

Ratnavel Pandian. J. The above three writ petitions under Article 32 of the Constitution of India, filed by three different petitioners detenues are heard together and disposed of by this companymon judgment as companymon companytentions are raised challenging the validity of the impugned orders of detention dated 16.9.1988. The detention orders in the above cases were passed by the Commissioner of Police, Ahmedabad, the first respondent herein, in exercise of the powers companyferred by subsection i of Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985-hereinafter referred to as the Act-with a view to preventing the petitioners detenues from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city. All the grounds of detention which are similar except the reference of the cases registered against each of the petitioners spell out that the detaining authority has reached his subjective satisfaction on the materials placed before him that all the petitioners are dangerous persons within the ambit of Section 2 c . At the end of each of the grounds of detention, it is specifically averred that the companyies of the papers shown in the schedule are given to you hereby meaning thereby that all the cases numbered in Annexure D have been taken into companysideration against each of the writ petitioners for holding that they are all dangerous persons. We would like to re-produce Annexure D to the grounds of detention for appreciating the companytentions urged on behalf of the petitioners The sheet showing the fact of the papers of the secret inquiry against 1 Nasirkhan 2 Sharif khan and 3 Mehboobkhan Sr. No. Details of Papers Date Page No. Remarks 1. True companyy of F.I.R. of 29.5.84 1 to 6 Kagdapith I. 209/84 2. True companyy of face marks 13.6.86 7 to 38 registered and charge-sheet of F.I.R. Maninagar I. 122/86 3. True companyy of F.I.R. and 4.2.88 39 to 48 face marks registered of Karanj Police Station I. 70/88 4. True companyy of F.I.R. and 13.9.88 49 to 60 face marks registered Kagadapith II. 464/88 5. True companyy of record of 7.9.88 61 to 62 entry number 20 KC dated 7.9.88 6. True companyy of F.I.R. of 23.8.88 63 to 72 Prohibition 379/88 7. Statement of witness No. 1 13.9.88 73 to 74 8. Statement of witness No. 2 13.9.88 75 to 76 9. Statement of witness No. 3 14.9.88 77 to 78 10. Statement of witness No. 4 14.9.88 79 to 80 Sd - Police Inspector, Kagadapith, Ahmedabad city. The learned Counsel appearing for the petitioners assailed the validity of the impugned orders of detention on the ground that they suffer from the vices of number-application of mind and extraneous companysideration. Before adverting to the arguments advanced by the learned Counsel, we shall mention that all the three writ petitioners detenues and one Ayubkhan Nawabkhan are brothers and admittedly there is numberdetention order against Ayubkhan Nawabkhan. As stated supra, these impugned orders are based on the sole ground that the petitioners are dangerous persons. In the grounds of detention under challenge in Writ Petition No. 478 of 1988 only two cases, registered against the detenu Mehboobkhan are shown to have been companysidered for holding that the petitioner is a dangerous person within the definition of Section 2 c of the Act. These two cases are shown under Sl. Nos. 2 and 4 of Annexure . D, extracted above. It is number in dispute that this writ petitioner is number at all companycerned in any of the other cases mentioned under Sl. Nos. 1, 3, 5 and 6 in Annexure D. In the grounds of detention, companycerned in Writ Petition No. 479/88-three cases registered against the petitioner are referred to have . been companysidered for bringing him within the meaning of Section 2 c of the Act and those cases are mentioned under Serial Nos. 2, 3 and 4 of Annexure D. It is number in companytroversy as in the case of Writ Petition No. 478/88 that this writ petitioner detenu Nasirkhan Nawabkhan Palhan is number companycerned in any one of the other cases under Sl. Nos. 1, 5 and 6 of Annexure D. Similarly in the grounds of detention, companycerned in Writ Petition No. 480/88, four cases are made mention of as having been companysidered for bringing the writ petitioner detenu Sharifkhan Nawabkhan Pathan within the definition of Section 2 c . As in the other two cases, this writ petitioner detenu is in numberway companynected with the cases shown under Sl. Nos. 5 and 6 in Annexure D. Admittedly Sl. No. 5 of Annexure D relates to a fruitless prohibition raid companyducted in a place under the occupation Ayubkhan Nawabkhan in respect of which numbercase was registered. The case shown under Sl. No. 6 is a case registered only against Ayubkhan Nawabkhan under the Prohibition Act. It is, thus, demonstrably shown that the detaining authority has number applied his mind properly companyfining his companysideration only with reference to incidents mentioned in the grounds of detention, and has mechanically passed these orders taking into companysideration of various extraneous matters, namely the incidents other than those shown in the grounds of detention-especially incidents under SI. Nos. 5 and 6 of Annexure D with which the detenues have numberdirect or indirect companynection or participation. We, therefore, agree with the submission made by the learned Counsel for the petitioners that these three detention orders suffer from the vices of number-application of mind and extraneous companysideration. The companynter argument advanced by the learned Counsel for the respondents that the detaining authority has drawn his subjective satisfaction only on the materials mentioned in the grounds of detention and passed these detention orders by proper application of mind to those materials and as such the impugned orders are number vitiated cannot be accepted for the reasons mentioned above. Lastly it has been urged by the learned Counsel for the petitioners that the petitioners have been deprived of making effective and purposeful representations as envisaged under Article 22 5 of the Constitution of India to the authorities companycerned since the detaining authority for bringing them within the definition of Section 2 c has taken into companysideration certain extraneous matters with which the petitioners have numberconnection whatsoever.

The appellant who has filed this appeal by special leave in person does number appear at the hearing but has sent a written numbere requesting that his submissions may be taken into companysideration while disposing of the appeal. We have perused his written numbere and have heard the learned Additional Solicitor General on behalf of the respondents. Proper interpretation of Rule 39 5 of the Leave Rules is in issue. The appellant was an Assistant Commissioner of Income Tax and has number superannuated with effect from 3rd September, 1985. Upon superannuation he became entitled to the benefit of encashment of earned leave lying to his credit at the time of retirement. The mode of companyputation of such entitlement under the Government Scheme is companyered by the aforesaid Rule. That Rule provides A Government servant who retires or is retired from service in the manner mentioned in Clause c of Sub-rule 1 , may be granted, suo moto by the authority companypetent to grant leave, cash equivalent of the leave salary in respect of earned leave at his credit subject to a maximum of 180 days and also in respect of all the half-pay leave at his credit provided this period does number exceed the period between the date on which he so retires or is retired from service and the date on which he would have retired in the numbermal companyrse after attaining the age prescribed for retirement under the terms and companyditions governing his service. The cash equivalent shall be equal to the leave salary as admissible for earned leave and or equal to the leave salary as admissible for half pay leave plus dearness allowance admissible on that leave salary for the first 180 days at the rates in force on the date the Government servant so retires or is retired from service. The pension and pension equivalent of other retirement benefits and ad hoc relief granted relief on pension shall be deducted from the leave salary paid for the period of half pay leave, if any, for which the case equivalent is payable. The amount so calculated shall be paid in one lump It is the companymon case of parties that the proviso in the sub-rule does number apply. It is also number in dispute that for the first 180 days, whether it is full leave or leave on half pay, full benefit is admissible. The aspect which is disputed and requires clarification is as to whether when within the period of 180 days credit is given to a period of half pay leave, deduction referred to in the last portion of the said rule relating to pension, pension equivalent of other retiral benefits would be deductible in respect of the half pay leave period included in 180 days. We find that for calculating the benefit for 180 days referred to in the rule, deduction of pension is number taken into account. Only in respect of half pay leave period pension is deductible.

The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- The appellant Tukaram Gundu Naik was tried along with two others for an offence punishable under Sections 307/34 IPC. The appellant was also charged under Section 307 simpliciter. The trial companyrt acquitted all of them. The State preferred an appeal and it was admitted against the appellant and dismissed against the other two by the High Court. A Division Bench of the High Court after having companysidered the evidence of the prosecution witnesses particularly that of the victim, companyvicted the appellant under Section 307 IPC and sentenced him to undergo five years RI. Hence the present appeal. The prosecution case is as follows A-1 the appellant herein and A-2 are the real brothers and A-3 is the son of A-1 and they are residents of Pokhale, Taluka Panhala. The appellant was the Director of the Milk Dairy of Ward Factory and also the Chairman of the Market Committee at Kolhapur and a political worker. The victim Shivaji Aba, PW 8 is also a resident of the same village and used to take active part in the village activities. He was in charge of the library started by him and others in the village. He also canvassed for some candidates in the elections and in 1967 helped the present appellant but in 1972 worked against the appellant. As a result of this, the relations between the appellant and the family of Shivaji Aba were number good. Aba Dnyanu, PW 9, the father of PW 8, is the police patil of the village. From the Judgment and Order dated January 20, 1981 of the Bombay High Court in Criminal Appeal No. 775 of 1975 On April 13, 1973 at about 6 p.m. Ramajan, PW 1 met Shivaji Aba, PW 8 in the village. PW 8 asked PW 1 as to why he was frequently visiting the village and also scolded him for carrying an axe with him. There was a scuffle between the two and PW 1 received an injury. He went and reported the matter to A-1. The appellant sent him to the panchayat office and followed him there. Thereafter he sent for the police patil and the sarpanch. Both of them came there. In their presence the appellant asked PW 8 why he has assaulted PW 1. So saying he slapped Shivaji Aba, PW 8 twice. PW 9 also slapped PW 8 when he tried to abuse the appellant. Thereafter there was some scuffle between PW 8 and A-1 and both of them came in the verandah. PW 9 also came to the verandah. There the appellant inflicted injuries with a knife on PW 8. A-2 and A-3 are alleged to have hurled stones at PW 8. PW 8 rushed and took shelter in the house of his aunt. PW 9 who was informed about the companydition of PW 8 also came there. He brought a rickshaw and took Shivaji Aba to the police station, gave a report there and then took him to the Civil Hospital, Kolhapur. PW 11 also came along with them from the village. Shivaji Aba, PW 8 was treated in the hospital as an in-patient till August 18, 1973 and thereafter he was discharged. Meanwhile an offence was registered under Section 326 IPC and investigation proceeded. The accused were arrested and the charge-sheet was laid. The accused denied the offence. The appellant in his statement under Section 313 CrPC stated that he was a political worker and that PW 8 canvassed against him in the elections. He also stated that he was present in Chavadi but he denied having slapped PW 8. According to him, he did number step out of the office of the panchayat and he stated that he has been falsely implicated. Dr Khare, PW 16 examined PW 8 and found four incised injuries which were clean cut on the epigastric region. He admitted the injured into hospital and Dr Wagle, PW 17 attended on the injured PW 8 and treated him. The prosecution mainly relied on the evidence of PW 8 supported by the medical evidence and companyroborated by PW 9 and other witnesses. The trial companyrt disbelieved PW 8 for the simple reason that he did number state in the FIR about the presence of PW 9. As a matter of fact, the appellant himself did number dispute his presence in the village panchayat office at the time of the incident. The High Court has rightly held that the reasons given by the trial companyrt for rejecting the evidence of PW 8, the victim, were wholly unsatisfactory and also perverse. PW 8 immediately lodged the FIR in which all the details were given and it was clearly stated that it was the appellant who slapped him. We have gone through the evidence of PW 8 as well as PW 9 whose evidence is also companyroborated by the evidence of PWs 10 and 11. The High Court has rightly relied on their evidence and companyvicted the appellant. Shri Ram Jethmalani, learned companynsel appearing for the appellant companytended that the companyviction under Section 307 IPC is number warranted. According to him, the intention to companymit murder is number made out and the surrounding circumstances namely that it was dark and there was a scuffle and prior to that appellant was also abused by PW 8, the victim and under those circumstances, even if the appellant is said to have inflicted some blows, the offence companymitted by him would be one punishable under Section 324 IPC. Dr Khare, PW 16, who examined the injured, found one clean-cut incised wound over epigastric region, another clean-cut incised wound on the left elbow joint, the third clean-cut incised wound on the left side of the side and the fourth clean-cut incised wound over left side of the back. He opined that these injuries were caused with a sharp-edged weapon like a knife. Learned companynsel for the appellant from the record pointed out that it was only a folding knife and if these injuries were inflicted during scuffle, it cannot be said that either clause 1 or clause III is attracted so as to infer that the intention was to companymit murder. Consequently Section 307 IPC is also number attracted. In this companytext, the evidence of PW 12 also becomes relevant. He deposed that he was also present in the village panchayat office and that he heard the exchange of words and he also heard the sound of milk cans in the verandah and it was dark outside the verandah. No doubt this witness was treated hostile but his evidence would show that it was dark and there was a scuffle. Further, the doctors evidence would show that numbere of the vital organs was injured. Under these circumstances, a doubt arises whether the accused intended to companymit murder and thus made an attempt. In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to companymit such an offence would be one punishable under Section 308 IPC. Section 308 lays down that such an offence is punishable with imprisonment which may extend to three years or with fine or with both and if hurt is caused, the assailant can be punished with imprisonment of either description which may extend to seven years or with fine or with both. Having given our earnest companysideration and having regard to the age of the appellant and the suddenness in which the whole occurrence took place during the scuffle, we are of the view that the offence is one punishable under Section 308 IPC.

ORIGINAL JURISDICTION Writ Petition No. 164 01 1958. Writ Petition under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. C. Chatterjee and Naunit Lal, for the petitioners. S. Bindra and D. Gupta, for the respondent. 1961. April 10. The Judgment of the Court was delivered by AYYANGAR, J.-The companystitutional validity of the Ay. operative provisions of the Punjab Shops and Commercial Establishments Act, 1958 Punjab Act 15 of 1958 , which we shall hereafter refer to as the Act, is challenged in this writ petition filed under Art. 32 of the Constitution, seeking reliefs appropriate to such a challenge. There are two petitioners and the nature of the business carried on by, them, which is set out in the petition, indicates that they have companybined with a view to bring up before the Court the implications of the enactment with reference to different types of business which trades in the Punjab might be carrying on and which would be impeded or restricted by the provisions of the Act. The first petitioner states that he has a shop at Mandi Dabwali in Hissar District where he carries on business in the purchase and sale of grains, etc. in wholesale. The relevant averment in regard to the nature of his business is that the customers who supply him with goods bring them loaded in carts drawn by camels or bullocks and that these vehicles arrive at his godowns at all hours of the day and night. He also states that for the purpose of the purchases or sales effected by him, he receives messages by telephone and telegram both during the day and the night. These, according to him, render necessary, if he has to carry on business as he has been doing all along, that his place of business should be kept open practically the whole of the day and night, i.e., for all the 24 hours. The second petitioner states that he is carrying on a retail business on a small scale, and that he employs numberoutsider but attends to all the work in the shop himself, with the assistance, if necessary, of the members of his family. In this case also it is stated that the goods purchased are brought to him at all hours of the day and night and similarly he has to receive messages during the entire period. It is in this background that the petitioners desire that the Court should view the restrictions imposed upon them by those provisions of the Act which are challenged in the petition. We shall number proceed to set out he impugned provisions of the Act with a view to determine whether for all or any of the reasons set out in the petition,any of them companyld be said to companystitute an unreasonable restriction on the right to carry on trade or business so as number to be protected by Art. 19 6 of the Constitution which is the gravamen of the companyplaint formulated in the petition. The Act received the assent of the President on April 25, 1958, and was published in the Punjab Gazette on May 1, 1958. According to the preamble, it is an Act to provide for the regulation of companyditions of work and employment in shops and companymercial establishments. The Act repealed and re-enacted, with modifications, the Punjab Trade Employees Act, 1940, to which enactment also it would be necessary to advert in its proper place. Section 1 3 of the Act provides that the Act shall companye into force on such date as Government may, by numberification appoint in this behalf and by a numberification under this provision the Act was directed to companye into force from June 1, 1958. The Act, however,, did number of its own force apply to the entirety of the Punjab State, for s. 1 4 enacted 1 4 . It shall apply in the first instance to the areas specified in the Schedule, but Government may by numberification direct that it shall also apply to such other area and on such date as may be specified in the numberification. Mandi Dabwali where the petitioners carry on business is one of the local areas in the district of Hissar set out in the Schedule annexed. We might here numbere that the main grievance of the petitioners appears to, be that it has number been brought into force in neighbouring local areas and that this disparity in the regulations is acting to the disadvantage of people carrying on business in the areas set out in the Schedule. This, however, cannot obviously be a ground of companystitutional grievance and learned Counsel therefore very properly did number rely on it except merely to draw our attention to this fact. Section 2 iv defines a a companymercial establishment to which the Act applies as meaning any premises wherein any business, trade or profession is carried on for profit, omitting the unnecessary words. Section 2 v defines day as meaning the period of twenty-four hours beginning at midnight, again omitting what is immaterial. The operative provisions of the Act which were attacked in the petition are ss. 7 and 9 and it would be companyvenient to set out their material terms Hours of employment.-- 1 Subject to the provisions of this Act, numberperson shall be employed about the business of an establishment for more than forty-eight hours in any one week, and nine hours in any one day. 2 3 4 5 Opening and closing hours.-- No establishment shall, save as otherwise provided by this Act, open earlier than ten oclock in the morning or close later than eight oclock in the evening Provided that any customer who was in the establishment before the closing hour may be served during the period of fifteen minutes immediately following such hour Provided further that the State Government may, by order and for reasons to be recorded in writing, allow an establishment attached to a factory to open at eight oclock in the morning and close at six oclock in the evening. Provided further that the State Government may, by numberification in the official Gazette, fix such other opening and closing hours in respect of any establishment or class of establishments, for such period and on such companyditions, as may be specified in such numberification. For the sake of companypleteness and to understand the scheme of the enactment we would set out the terms of s. 10 also, which reads Close day.- 1 Save as otherwise provided by this Act, every establishment shall remain close on every Sunday Provided that, in the case of an establishment attached to a factory, the employer may substitute the close day of such establishment so as to companyrespond to the substituted close day of the factory in the same manner and subject to the same companyditions as are laid down in this behalf in the Factories Act, 1948. 2 i The employer of an establishment shall in the prescribed form intimate to the prescribed authority the working hours and the period of interval of the employed persons within fifteen days of the date of registration of the establishment. The employer of an establishment may change, the working hours and the period of interval once in a quarter of the year by giving intimation in the prescribed form to the prescribed authority at least fifteen days before the change is to take place. Notwithstanding anything companytained in subsection 1 , the employer of an establishment may open his establishment on the close day if-- a such day happens to companyncide with. a festival and b employees required to work on that day are paid remuneration at double the rate of their numbermal wages calculated by the hour. It is urged by Mr. Chatterji--learned Counsel for the petitioners-that having regard to the nature of the petitioners business, whose features we have set out earlier, it would be impossible for them to carry it on in the manner in which they have been doing up to number, unless the Act permitted the first petitioner to work without regard to the restrictions imposed by-the limitation as to hours of work of employees imposed by s. 7 1 of the Act, and both the petitioners without regard to the hours for the opening and closing of the establishments under s. 9. Before entering on a discussion of the companystitutional propriety of the restrictions imposed we may point out that the provisions of the Act companytemplate that establishments might fall under three categories.- 1 where it is necessary in the public interest, and having regard to the service which they render to the companymunity, that the numbermal hours of working should number be subject to the restrictions imposed by ss. 9 or 10, 2 those in which there is numberneed for companyplete freedom from these restrictions, but in which an adjustment merely as regards the hours set out in s. 9 is sufficient, 3 those in which neither the requirements of the trade number, of companyrse, the interest of the general public would suffer if the establishment adjusted its operations in companyformity with the Act. The first head is dealt with by s. 4 of the Act which reads Provisions of sections 9 and 10 number applicable to certain establishments.-Nothing in sections 9 and 10 shall apply to- a clubs, hotels, boarding houses, stalls and refreshment rooms at the railway stations b shops of barbers and hair-dressers c shops dealing mainly in meat, fish, poultry, eggs, dairy produce except ghee , bread, companyfectionery, sweets, chocolates, ice, ice-cream, companyked food, fruit, flowers, vegetables or green fodder d shops dealing mainly in medicines or medical or surgical requisites or appliances and establishments for the treatment or care of the sick, infirm, destitute or mentally unfit e shops dealing in articles required for funerals, burials or cremations f shops dealing in pans betel leaves , biris or cigarettes, or liquid refreshments sold retail for companysumption on the premises g shops dealing in newspapers or periodicals, editing and despatching sections of the newspaper offices and offices of the news agencies h cinemas, theatres and other places of public entertainment establishments for the retail sale of petrol and petroleum products used for transport j shops in regimental institutes, garrison shops and troop canteens in cantonments k tanneries 1 retail trade carried on at an exhibition or show, if such retail trade is subsidiary or ancillary only to the main purpose of the exhibition or show m oil mills number registered under the Factories Act, 1948 n brick and lime kilns o companymercial establishments engaged in the manufacture of bronze and brass utensils so far as it is companyfined to the process of melting in furnaces and p saltpetre refineries. Similarly by numberification of the State Government State dated June 1, 1958, the following classes of establishments wer exempted from the provisions of SS. 9 and 10 1 establishments dealing in the retail sale of Phullian, Murmura, sugar-coated grams and Reoris 2 companymercial companyleges of shorthand and typewriting. vide Punjab Government numberification No. 6567. S-Lab. 58/1737-RA, dated June 1, 1958. 3 all booking offices of the Transport vide Punjab Government numberification No. 6147/ 5815- C-Lab-58/1741-RA, dated June 1, 1958 . The second category of cases are those companyered by the second and third provisos to S. 9. Action has been taken under the third proviso to S. 9, by a numberification which was issued at the same time as when the Act was brought into force which runs in the following terms The following categories of establishments in the State of Punjab shall number open earlier than eight oclock in the morning or close later than six oclock in the evening during the period from 1st May to thirty-first August every year- 1 establishments dealing in timber, manufacture of furniture, tents, supply of furniture or tents on hire, cycles or their repairs or painting or dyeing 2 establishments, other than tailoring establishments, which include workshops or other establishments where articles are produced, adapted or manufactured, with a view to their use, transport or sale and 3 establishments dealing in agricultural produce brought for sale by producers. vide Notification No. 6567. S-Lab-58/1735-RA, dated June 1, 1958 . Those outside S. 4 and which are number companyered by numberifications under the provisos to S. 9 have, of companyrse, to adjust their business in accordance with the requirements of the Act. It is in the companytext of these exceptions and the elasticity for which provision is made to meet the imperative requirements of particular types of business, that the companystitutional objection has to be companysidered. The companystitutional objection is that, the impugned provisions impose unreasonable restrictions on the fundamental right of the petitioners to carry on their trade or business. The regulation of companytracts of labour so as to ameliorate their companyditions of work is in reality a problem of human relationship and social companytrol for the advancement of the companymunity. The public and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does number protect or guarantee any fundamental right in the nature of the provision in Art. 1, s. 10 1 , of the U. S. Constitution against impairment of the obligation of companytracts. The only test of companystitutional validity therefore is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better companyditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask-are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48-hour week, number the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the companycept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its companytent are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social companyscience as it grows and develops from time to time. Besides, this point regarding restrictions of this nature being unreasonable is companycluded against the petitioners by the decision of this Court in Manohar Lal v. The State of Punjab 1 judgment on which was delivered on November 11, 1960. The provision there impugned was s. 7 of the Punjab Trade Employees Act, 1940, which, as stated earlier, had been repealed and re-enacted with modifications by the Act which directed that the shops and establishments to which it applied should remain closed on one day in the week companyresponding to s. 10 of the Act of 1958 . The appellant before this Court was a small trader who did number employ any person under him but who, like the second petitioner before us, himself with the members of his family attended to all the requirements of his shop. Basing himself on this feature he challenged the validity of the provision which restricted his right to carry on his business in such manner as he chose on all the seven days in the week. In repelling these objections this Court said The ratio of the legislation is social interest in the health of the worker who forms an essential part of the companymunity and in whose welfare, therefore, the companymunity is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest number only to himself but to the general publicA restriction imposed, with a view to secure thi purpose would, in our opinion, be clearly saved by Art. 19 6 Apart from this, the companystitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would 1 1961 2 S.C.R. 343. be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will number stamp a law otherwise valid as within legislative companypetence with the character of unconstitutionality as being unreasonable. These observations, in our opinion, clearly apply and suffice to support the validity of the related provisions here impugned.

Dr D Y CHANDRACHUD, J. 1 The High Court has set aside an order of detention issued under Section 3 1 ii of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 19741 on the ground that the period of detention was number specified. In arriving at this companyclusion, the High Court has relied upon a decision of this Court in Commissioner of Police v Gurbux Anandram Bhiryani2, and on a judgment Signature Not Verified Digitally signed by SUBHASH CHANDER Date 2018.04.11 142402 IST Reason 1 The COFEPOSA Act 1974 2 1988 Supp SCC 568 of the High Court in S Santhi v The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai3. 2 The Government of Tamil Nadu is in appeal. 3 The submission which has been urged is that though the period of detention has companye to an end, it is necessary for the Court to companyrect the statement of legal position companytained in the decision of the High Court. Learned companynsel has drawn the attention of the Court to the fact that the earlier decision of a Bench of two judges in Bhiryani supra was overruled by a Bench of three judges in T Devaki v Government of Tamil Nadu4. 4 In T Devaki v Government of Tamil Nadu, a Bench of this Court has held that since the legislation does number require the detaining authority to specify the period for which a detenue is required to be detained, the order of detention is number rendered invalid or illegal in the absence of such specification. This Court held thus This Court has companysistently taken the view that an order of detention is number rendered illegal merely because it does number specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. State of Punjab 1952 3 SCR 756 AIR 1952 SC 350 1953 Cri LJ 146 , while companysidering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that number-specification of any definite 3 2010 3 MWN Cr. 42 DB 4 1990 2 SCC 456 period in a detention order made under Section 3 of the Act was number a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu Kashmir 1973 3 SCC 60 1973 SCC Cri 138 1973 1 SCR 870 , validity of detention order made under Jammu and Kashmir Preventive Detention Act, 1964 was under challenge on the ground that the State Government while companyfirming the detention order under Section 12 of the Act had failed to specify the period of detention. The companyrt held that since the State Government had power to revoke or modify the detention order at any time before the companypletion of the maximum period prescribed under the Act, it was number necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chelani v. State of Maharashtra 1983 1 SCC 382 1983 SCC Cri 202 , while companysidering the validity of the detention order made under Section 3 1 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission made on behalf of the detenu that order of detention was vitiated as the government had failed to mention the period of detention while companyfirming the order of detention. The companyrt held that the COFEPOSA Act did number require the detaining authority to mention the period of detention in the order of detention. When numberperiod is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act. Id at page 464 The decision in Bhiryanis case has been overruled. 5 In the circumstances, the High Court was number justified in quashing the order of detention on the basis that numberperiod of detention was provided in the order. The High Court has proceeded on the basis of the decision of this Court in Bhiryani which is numberlonger good law in view of the subsequent decision of a larger Bench in Devaki. The decision of the High Court in Santhi, to the extent that it adopts the same position as in Bhiryani, will number reflect the companyrect legal position. 6 Accordingly, the impugned judgment of the High Court of Judicature at Madras dated 24 February 2016 in H.C.P. No. 2442/2015 is set aside. As a companysequence, the detention order dated 31 August 2015 bearing G.O. No.

ARUN MISHRA, J. The appeal is directed against the judgment and order passed by the High Court of Judicature at Madras recording acquittal of respondents thereby setting aside the judgment and order of companyviction for companymission of offence under section 8 c read with sections 21, 25 and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 and the sentence of 10 years rigorous imprisonment and fine of Rs.1 lakh imposed by the Special Judge for NDPS Act cases, Chennai. According to the prosecution, in a stationed lorry, the appellants were sitting inside on 28.3.2000 at 2 a.m. Lorry was parked in front of Puzhal Jail, it was intercepted by Rajasekhar PW-1, Jaberia Nazir PW-2, Saran PW-6, all Intelligence Officers of NCB headed by Mr. K. Raghavan PW- 8, an officer of the Gazetted rank, in the presence of the witnesses Naveenraj, PW-5 and Vinobaraj. Two jute hand-bags companytaining 26 packets were seized. They were marked as S1 and S2 and seal No.12 was affixed thereon. Statements under section 67 were recorded. The accused were arrested and seized property was produced before the Magistrate. P.Saran, PW-6 deposited the property at the NCB. Godown at about 9.30 p.m. on 29.3.2000 as per receipt Ex. P-1. Property was produced before the NDPS Court by PW-6 on 3.4.2000. As per orders of the companyrt, it was deposited in the godown for safe custody. Analysts report Ex. P-22 was submitted. Prosecution examined Srinivasan PW-9, who prepared the godown receipt on 29.3.2000 regarding the companytraband though the forwarding memo sent along with it mentioned that seal No.12 was affixed. However, it was mentioned due to inadvertence in the godown receipt that it companytained seal No.11. The trial companyrt companyvicted the respondents. On appeal, the High Court has acquitted them on the ground that the prosecution has number proved that the seized articles were in fact sent for chemical analysis due to the discrepancy in Seal number as on receipt of godown seal number 11 was mentioned. We have heard learned companynsel appearing for the appellant and perused the record. In our companysidered opinion, the High Court has number companysidered various reasonings given by the trial companyrt in its judgment. The trial companyrt has given the following reasons with respect to the aforesaid discrepancy in the seal number As per directions of the Court, for receiving articles in godown, W.9 gave Ex.D-1. But P.W.9 Srinivasa wrongly wrote 11 instead of 1. On 31.3.2000 regarding Mohammed Safi accused of the separated case and his family Ex.P.41 was obtained from the Superintendent Mansore Police. On that basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 on that basis, he ordered P.W.6 Saran to enquire into it. Then P.W.6 gave companyplaint in the companyrt for taking action against accused 1 to 4 and two accused of the separated case under section 89 c r w 21, 25, 28 and 29 of the NDPS Act. Ex. D-1 is the receipt given at the godown on 29.3.2000. Ex.D-2 is the letter written from the companyrt to the Chemical Laboratory. Ex.D-3 is the letter written by Gopal Intelligent officer to South Zone Narcotic Control Bureau. Ex.P.4 is the letter sent by a Chennai Officer to Chandigarh officer on 1.4.2000. Ex.D-5 is the Fax message sent from N.C.P. Zonal to Director General, N.C.B. New Delhi E.D.-6 is the letter sent by from NCD New Delhi to D.B.G. I . x x x x x Regarding this, 1999 Supreme Court Cases Criminal Page 95, 2002 1 B.R. 615 Supreme Court of India , 2001 2 C.T.C. Page 764, 2002 Criminal Law Journal 749 were pointed to by the defence side. During Prosecution argument, prosecution reply that P.Ws.1, 2, 6 and 8 were authorized officers and that on the basis of written document Ex.1, after giving information to the superior officer they went to the scene of occurrence and that when P.W.1 questioned accused 1 he produced M.O.30 Heroin voluntarily from the lorry cabin and that P.W.1 being intelligent officer, though he need number leak out information he made endorsement on Ex.P.1 and giving information to Superintendent and got orders from him and therefore their companytention is number acceptable and further they went to the scene of the information and in the presence of P.W.1, 2, 6 and 8 and independent witness P.W.5 and witness Vinoba Raj they gave information to the accused that they were going to inspect the lorry and that they informed the accused that they were entitled to be inspected either in the presence of a gazette officer or in the presence of Judicial Magistrate as per section 50 of the above Act and they obtained Ex.P.2 to 5 wherein accused stated that they need number do so and that further, articles were recovered from cabin of the lorry section 50 need number be enforced and the prosecution witnesses did number transgress provisions of 41 1 and 4a 2 of the Act or section 50 of the above Act and therefore the companytention that the case is vitiated is number acceptable and that seized articles were marked as NCB 12 and were handed over as Ex.P.29. Therefore it was subjected to chemical analysis as per companyrt order and that on the companytrary in Ex.D.1, the mark was wrongly marked as NCB 11, as deposed by P.W.9 and therefore the articles were sent to chemical laboratory through NCB mark 12 and Ex.P.22 was obtained stating the articles analyzed was Heroin and that therefore the companytention that wrong materials were sent for chemical analysis was number acceptable and therefore the citations given by the defence side are number relevant to fact and in support of their argument, they pointed out citations 2001 Supreme Page 363, 2001 3 Crimes page 377, J.T. 2001 S.T.330 and 2000 Supreme Court Cases Criminal Page 506 and Chennai High Court Criminal Appeal N.898/98 order dated 12.6.2001 and Notification dated 6/86 F.No.664/75/ Opium-1.11.86 and Notification No.8/86 dated 1.11.86. x x x x x Next though the witnesses deposed that they put NCB seal 12 on the seized articles but as per Ex.P.1 NCB seal 11 was affixed and the before benefit of doubt be given to the accused and in support of their companytention, they produced the citation 2001 1 2 C.P.C. 764 para 4. Further 2002 1 S.B.R. 615 Supreme Court of India Judgment was pointed out. Arguing on behalf of prosecution, it is pointed out that in the preparation of Ex.P.6 Mahazar for seizure of articles from the accused, the NCB seal 12 was affixed and as per Ex.P-19, when P.W.3 obtained statement he mentioned NCB seal 12 and further when Ex.P-28 was handed over in the companyrt, NCB seal 12 was affixed. In the annexure attached to it and further in the Ex.P-30 document requesting to send articles for chemical analysis it was mentioned and Ex.P-20 in companyy of letter to chemical laboratory and in Ex.P-21 Test Memo, it was mentioned and that in Ex.P-1 it was wrongly mentioned as NCR seal 11 instead of 12 and that articles sent for chemical analyzing are number companycerned in this case it number acceptable and that further regarding that D.Ws.8 and 9 gave evidences and therefore the companytention that the seized articles of this case were number sent for chemical analysis and that Ex.P.22 is number chemical analysis report of the case is number acceptable the the citation 2001 2 C.P.C. page 764 and 2002 1 S.B.R. 615 put forwarded by the defence side is number relevant to this case. Regarding that perusing Ex.P.6 Mahazar, page 5 it is stated in the Ex.P.6 that NCB seal 12 was affixed and that NCB seal 12 was affixed on Ex.M.O. 1 to 26, 27 and 28. Further, it is said that in Ex.P.28 Annexure, sample NCB was affixed in it, special companyrt judge ordered to handover Ex.P.1 to 3 and 5 to intelligent officer and he received the same. Before that as per Ex.P.29. On 203.2000 night at 21.30 on the basis of forwarding memo No.8/2000 he handed over in the NCB godown incharge, Southern Zone. As per Ex.P.30 he requested to send the articles for chemical analysis as per Ex.P-29 for entrusting the articles, he received receipt Ex.P1 in it on 29.3.2001 receipt No.8/2000 was received as per Ex.P.29 and seal No.12 was mentioned. But Ex.P-1 it must have been marked as seal No.11 instead of 12. For that purpose P.W.9 was examined and explanation was obtained. Regarding the P.W.8 mentioned in his deposition. On the basis of Ex. P-30 requisition as per Ex.P-20 for analysis, companyrt sent articles as per Ex.P-21 test memo, Ex.P-20 and Ex.P-2 are one and the same. It is very clear that the seal 12 is only for the seized articles of the case. On the companytrary, the companyrt companysiders that the mark mentioned in Ex.P-1 was wrong. P.W.4 examined the above said articles and gave Ex.P-22 report stating that the above articles were Heroin regarding the mark 12 in the articles produced by the accused 1, P.Ws. 1, 2 and independent witnesses 5 and P.W.8 gave evidence. x x x x x He sent Ex.P-35 summons to manager of the Hotel where the accused 1 and 2 stayed and obtained Ex.P-36 statement from him. Further he examined accused 1 and obtained Ex.P-37 from the accused 1. Further P.W.8 obtained reports from P.W.1, 2 and 6 and as per Ex.P-40 he sent report to superior officer. As per Ex.P-41 to 43 he obtained report for accused 5 and 6 separate accused . Receiving the above said reports, P.W.6 Saran under Section 8 c r w 21, 25, 28 and 29 of Narcotic Drugs and Psychotropic Substances Act 1985. It is decided that from the examination of the above said prosecution witnesses and on the basis of documents it is established beyond all reasonable doubts that the accused transported Heroin, narcotic substance without Governments permission and possessed the same for the purpose of selling. The trial companyrt has given various reasons, companysidered statement of witnesses, effect of various documents including of sending them to the chemical analyst and trial Judge also companypared the seals and came to the companyclusion that the same articles which were seized were sent for chemical examination. The High Court has number companysidered the other material on record which according to trial companyrt established identity of sample sent for chemical examination with the companytraband which was seized, and has also overlooked the effect of forwarding memo to godown which companytained seal No.12, and effect of remanding Magistrate endorsement. Merely because numberdepartmental action had been taken against PW-9 for mentioning seal No.11 instead of seal No.12 the prosecution case companyld number have been disbelieved. The effect of document Ex. D-2 which indicated that samples are duly checked and sealed with my office Seal and sent through Shri B.Sharan PW- 6 . Ex. D-2 companytains the facsimile of both seal No.12 affixed by NCB on the samples at the time of seizure and the facsimile of the Special Judges seal, has number been companysidered. The effect of the fact that the trial Judge saw and companypared seals on the samples and companytraband at the time of marking them as MOs. 1 to 29, has number been adverted to by the High Court. The High Court has also number companypared the seals. It was also submitted that the High Court has number companysidered that the chemical examiner has stated that the sample companyers companytained NCB seal and companyrt seal on companytraband and samples sent for analysis. In the report Ex. P-22 it was mentioned that the seals in each packet were companypared with the respective facsimile given on the above-referred letter and found to tally. Reasons given in para 25 of the judgment of trial companyrt have number been taken into companysideration by the High Court. It is trite law that while reversing the Judgment the reasons given by the trial companyrt ought to have been taken into companysideration along with the entire evidence in that regard.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 11431144/73 and 1201 N of 1973. From the Judgment and order dated 16-11-1972 of the Delhi High Court in C.W. No. 580/71, LPA No. 58/72 and 54/72. N. Lekhi and M. K. Garg for the Appellants in C.A. Nos. 1143-44/73 and for Respondents in C.A. No. 1201/73. S. Nariman P. D. Singhania, Homi Ranina, Ravinder Narain and T. Ansari in C.A. No. 1143/73 for the Intervener. N. kaeker Sol. General and A. V. Ramgam for the Respondent in C.A. No. 1144/73 and for the Appellant in C.A. No. 1201/73. N. Kaeker, Sol. General, B. P. Maheshwari, S. Sethi, Bikramjit Nayyar and E. C. Sharma for Respondent No. 1 in A. Nos. 1143-44/73 T. Desai, S. P. Nayyar and Miss A. Subhashini for the Intervener, C.I.T. Delhi. The Judgment of the Court was delivered by BHAGWATI, J. These appeals by certificate raise a companymon question of law relating to assessment of annual value for levy of house-tax where the building is governed by the provisions of Rent Control legislation, but the standard rent has number yet been fixed. One appeal relates to a case where the building is situate within the jurisdiction of the New Delhi Municipal Committee and is liable to be assessed to house tax under the Punjab Municipal Act, 1911 while the other two relate to cases where the building is situate within the limits of the Corporation of Delhi and is assessable to house tax under the Delhi Municipal Corporation Act, 1957. The house tax under both statutes is levied with reference to the annual value of the building. Section 3 1 b of the Punjab Municipal Act, 1911 defines annual value to mean, in the case of any house or building the gross annual rent at which such house or building may reasonably be expected to let from year to year subject to certain specified deductions, and the same definition of annual value is to be found in section 116 of the Delhi Municipal Corporation Act, 1957 with only this difference that there is a second proviso to section 116 which is absent in section 3 1 b . That proviso reads Provided further that in respect of any land or building the standard rent of which has been fixed under the Delhi and Ajmer Rent Control Act, 1952, the rateable value thereof shall number exceed the annual amount of standard rent so fixed. It was, however, companymon ground between the parties that this proviso is immaterial and, in fact, it was so held in Corporation of Calcutta v. Life Insurance Corporation 1 . We may, therefore, ignore the existence of this proviso and deal with both the categories of appeals on the basis of the same definition of annual value. Annual value of a building, according to this definition, would be the gross annual rent at which the building may reasonably be expected to let from year to year emphasis supplied . It is obvious from this definition that unlike the English Law where the value of occupation by a tenant is the criterion for fixing annual value of the building for rating purposes, here it is the value of the property to the owner which is taken as the standard for making assessment of annual value. The criterion is the rent realisable by the landlord and number the value of the holding in the hands the tenant. The rent which the landlord might realise if the building were let is made the basis for fixing the annual value of the building. The word reasonably in the definition is very important. What the landlord might reasonably expect to get from a hypothetical tenant, if the building were let from year to year, affords the statutory yardstick for determining the annual value. Now, what is reasonable is a question of fact and it would depend on the facts and circumstances of a given situation. Ordinarily, as pointed out by Subba Rao, J., speaking on behalf of the Court in Corporation of Calcutta v. Padma Devi 1 a bargain between a willing lessor and a willing lessee uninfluenced by any extraneous circumstances may afford a guiding test of reasonableness. An inflated or deflated rate of rent based upon fraud, emergency, relationship and such other companysiderations may take it out of the bounds of reasonableness. The actual rent payable by a tenant to the landlord would in numbermal circumstances afford reliable evidence of what the landlord might reasonably expect to get from a hypothetical tenant, unless the rent is inflated or depressed by reason of extraneous companysiderations such as relationship, expectation of some other benefit etc. There would ordinarily be in a free market close approximation between the actual rent received by the landlord and the rent which he might reasonably expect to receive from a hypothetical tenant. But where the rent of the building is subject to rent companytrol legislation, this approximation may and often does get displaced. It is, therefore, necessary to companysider the effect of rent companytrol legislation on the determination of annual value This is fortunately number a virgin field. There are at least three decisions of this Court which have spoken on this subject. The first is the decision in Corporation of Calcutta v. Padma Devi supra . The question which arose in that case was whether the annual value of a building governed by the West Bengal Premises Rent Control Temporary Provisions Act, 1950 companyld be determined at a figure higher than the standard rent fixed under the provision of that Act. The definition of annual value in section 127 a of the Calcutta Municipal Act, 1923 under which the house tax was being levied was the same as in section 3 1 b of the Punjab Municipal Act, 1911 or section 116 of the Delhi Municipal Corporation Act, 1957 without the second proviso and hence in order to determine the annual value of the building it was necessary to find out what was the rent at which the building might reasonably be expected to let from year to year. The Court speaking through Subba Rao, J. emphasized the use of the word reasonably in the definition and pointed out that since it was penal for the landlord to receive any rent in excess of the standard rent fixed under the Act, the landlord companyld number reasonably expect to receive any higher rent in breach of the law. It is the standard rent alone which the landlord companyld reasonably expect to receive from a hypothetical tenant, because to receive anything more would be companytrary to law. The learned Judge, after analysing the provisions of the Act, observed A companybined reading of the said provisions leaves numberroom for doubt that a companytract for a rent at a rate higher than the standard rent is number only number enforceable but also that the landlord would be companymitting an offence if he companylected a rent above the rate of the standard rent. One may legitimately say under those circumstances that a landlord cannot reasonably be expected to let a building for a rent higher than the standard rent. A law of the land with its penal companysequences cannot be ignored in ascertaining the reasonable expectations of a landlord in the matter of rent. In this view, the law of the land must necessarily be taken as one of the circumstances obtaining in the open market placing an upper limit on the rate of rent for which a building can reasonably be expected to let. It may be numbered that in this case the standard rent of the building was fixed under the Act and since it was penal for the landlord to receive any rent higher than the standard rent fixed under the Act, it was held that the landlord companyld number reasonably expect to receive anything more than the standard rent from a hypothetical tenant and the annual value of the building companyld number exceed the standard rent. The next decision to which we must refer in this companynection is the decision of this Court in Corporation of Calcutta v. Life Insurance Corporation supra . This case also related to a building situate in Calcutta which was governed by the West Bengal Premises Rent Control Temporary Provisions Act, 1950. Section 2 10 b of the Act defined standard rent to mean where the rent has been fixed under section 9, the rent so fixed, or at which it would have been fixed if application were made under the said section. Here, unlike Padma Devis case, the standard rent of the building had number been fixed under section 9 but it was companymon ground between the parties that Rs. 2,800 per month being the amount of the agreed rent represented the figure at which the standard rent would have been fixed if an application had been made for the purpose under section 9 and the standard rent of the building was therefore Rs. 2,800 per month within the meaning of the second part of the definition of that term. The question which arose for companysideration was whether the annual value of the building was liable to be determined on the footing of this standard rent or it companyld be determined by taking into account the higher rent received by the tenant from its sub-tenants. The principle of the decision in Padma Devis case was invoked by the assessee for companytending that the annual value of the building companyld number be determined at a figure higher than the standard rent and this companytention was upheld by the Court, though there was numberfixation of standard rent by the Controller under section 9 and the statutory prohibition was only against receipt of rent in excess of the standard rent fixed under the Act. The Court pointed out that the standard rent stood defined by the latter part of section 2 10 b and by virtue of that provision it was statutorily determined at Rs. 2,800 per month though number fixed by the Controller under section 9 and proceeded to hold, by applying the principle of the decision in Padma Devis case, that the landlord companyld number reasonably expect to receive any rent higher than the standard rent from a hypothetical tenant and the annual value of the building companyld number, therefore, be fixed at a figure than the standard rent. It will be seen that this decision marked a step forward from the decision in Padma Devis case because here the standard rent was number fixed by the Controller under section 9 and it was number penal for the landlord to receive any rent in excess of the statutorily determined standard rent of Rs. 2.800 per month and yet it was led by this Court that the standard rent determined the upper limit of the rent at which the landlord companyld reasonably expect to let the building to a hypothetical tenant. It may be pointed out that an attempt was made on behalf of the Corporation to distinguish the decision in Padma Devis case by companytending that that decision was based on the interpretation of section 127 a of the Calcutta Municipal Corporation Act, 1923 while the provision which fell for interpretation in this case was section 168 of the Calcutta Municipal Corporation Act, 1951 which was different from section 127 a , in that it companytained a proviso that in respect of any land or building the standard rent of which has been fixed under section 9 the annual value thereof shall number exceed the annual amount of the standard rent so fixed which was absent in section 127 a . The argument was that under the proviso the annual value was limited to the standard rent only in those cases where the standard rent was fixed under section 9 and since in the case before the Court the standard rent of the building was number fixed under section 9, the proviso has numberapplication and the assessing authority was number bound to take into account the limitation of the standard rent. This argument was negatived by the Court and it was held that the enactment of the proviso in section 168 of the Calcutta Municipal Corporation Act, 1951 did number alter the law and by the addition of the proviso, the meaning of the expression gross rent at which the land or building might reasonably be expected to let was number changed. It was for this reason that we pointed out at the companymencement of the judgment that the existence of the proviso in section 116 of the Delhi Municipal Corporation Act, 1957 is immaterial and we may proceed to deal with the appeals arising under that Act as if the definition of annual value did number companytain that proviso. That takes us to the third decision in Guntur Municipal Council v. Guntur Town Rate Payers Association 1 which extended still further the principle of the decision in Padma Devis case. This was a case where the annual value was to be determined under the Madras District Municipalities Act, 1920 which applied in the city of Guntur. Section 82 sub-section 2 of the Act gave a definition of annual value practically in the same terms as section 3 1 b of the Punjab Municipal Act, 1911 and section 116 of the Delhi Municipal Corporation Act, 1957 without the second proviso. There was also in force in the city of Guntur, the Andhra Pradesh Buildings Lease Rent and Eviction Control Act, 1960, which provided inter alia for fixation of fair rent of buildings. It is necessary to refer to a material provisions of this Act. Section 4, sub-section 1 companyferred power on the Controller, on application by the tenant or landlord of a building, to fix the fair rent for such building after holding such inquiry as he thought fit and sub-section 2 to 5 of section 4 laid down the formulae for determination of fair rent in different classes of cases. Sub-section 1 a of section 7 gave teeth to the determination of fair rent by providing that where the Controller has fixed the fair rent of a building, the landlord shall number claim, receive or stipulate for the payment of anything in excess of such fair rent and subsection 2 a of that section recognised that where the fair rent of a building has number been fixed by the Controller, the agreed rent companyld be lawfully paid by the tenant to the landord and it was only payment of a sum in addition to the agreed rent that was prohibited by that sub-section. Section 29 made it penal for any one to companytravene the provisions of subsections 1 a and 2 a of section 7. Now there companyld be numberdoubt that if the fair rent of a building were fixed under section 4, sub-section 1 , the decision in Padma Devis case would be clearly applicable and the annual value would be limited to the fair rent so fixed. But, would the same principle apply where the fair rent were number fixed ? Would the annual value in such a case be liable to be assessed in the light of the provisions companytained in the Rent Act ? That was the question which arose before the Court in the Guntur Municipal Councils case. The Guntur Municipal Council urged that the decision in Padma Devis case was number applicable and attempted to distinguish it by saying that under section 7, sub-section 1 it was only after the fixation of fair rent of a building that the landlord was debarred from claiming or receiving payment of any rent in excess of such fair rent and since the fair rent of the building in that case had number been fixed, it was number penal for the landlord to receive any higher rent and the assessment of annual value was therefore, number limited or governed by the measure provided by the provisions of the Act for determination of the fair rent. This attempt, however, did number find favour with the companyrt and it was held that there was numberdistinction between buildings the fair rent of which has been actually fixed by the Controller and those in respect of which numbersuch rent has been fixed. The Court pointed out It is perfectly clear that the landlord cannot lawfully expect to get more rent than the fair rent which is payable in accordance with the principles laid down in the Act. The assessment of valuation must take into account the measure of fair rent as determinable under the Act. It may be that where the Controller has number fixed the fair rent, the municipal authorities will have to arrive at their own figure of fair rent but that can be done without any difficulty by keeping in view the principles laid down in section 4 of the Act for determination of fair rent. It will thus be seen that even though fair rent had number been fixed under the Act as in Padma Devis case, number was it statutorily determined as in the Life Insurance Corporations case there being numberprovision in the Andhra Pradesh Rent Act similar to the latter part of section 2 10 b of the West Bengal Rent Act and it was clear from the provisions of the Rent Act that it was only after the fair rent of a building was fixed by the Controller that the prohibition against receipt of any amount in excess of fair rent became applicable and so long as the fair rent was number fixed by the Controller it was open to the landlord to receive the agreed rent even though it might be higher than the fair rent, yet it was held by the companyrt that in view of the provisions in the Rent Act in regard to fair rent, the landlord companyld number reasonably expect to receive from a hypothetical tenant anything more than the fair rent payable in accordance with the principles laid down in the Rent Act and the annual value was liable to be determined on the basis of fair rent as determinable under the Rent Act. The Court observed that the assessing authority would have to arrive at its own figure of fair rent by applying the principles laid down in sub-sections 2 to 5 of section 4 for determination of fair rent. This decision clearly represented a further extension of the principle in Padma Devis case to a situation where numberstandard rent has been fixed by the Controller and in the absence of fixation of standard rent, there is numberprohibition against receipt of higher rent by the landlord. It is in the light of these decisions that we must companysider whether in case if a building in respect of which numberstandard rent has been fixed by the Controller under the Delhi Rent Control Act, 1958 the annual value must be limited to the measure of standard rent determinable under that Act or it can be determined on the basis of the higher rent actually received by the landlord from the tenant. But before we proceed to examine this question, we must refer to a recent decision of this Court in Municipal Corporation, Indore Ors. v. Smt. Ratnaprabha Ors. 1 which apparently seems to strike a different numbere. That was a case relating to a building situated in Indore and subject to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. The building was self occupied and hence there was numberoccasion to have its standard rent fixed by the Controller. The annual value of the building was sought to be assessed for rating purposes under the Madhya Pradesh Municipal Corporation Act, 1956 and section 138 b of that Act provided that the annual value of any building shall, numberwithstanding anything companytained in any other law for the time being in force be deemed to be the gross annual rent at which such building might reasonably be expected to let from year to year, subject to certain specified deductions. The argument of the assessee was that even though numberstandard rent in respect of the building was fixed by the Controller, the reasonable rent companytemplated by section 138 b companyld number exceed the standard rent determinable under the Act and it was incumbent on the Municipal Commissioner to determine the annual value of the building on the same basis on which its standard rent was required to be fixed under the Act. This argument was sought to be supported by relying on the three decisions to which we have already made a reference. Now it would appear that the decision in Guntur Municipal Councils case was clearly applicable on the facts of this case and following that decision the Court ought to have held that the annual value of the building companyld number exceed the standard rent determinable under section 7 of the Act and the assessing authority should have arrived at its own estimate of the standard rent by applying the principles laid down in that section and determine the annual value on the basis of such standard rent. But the Court negatived the applicability of the decision in Guntur Municipal Councils case and the earlier two cases by relying on the words numberwithstanding anything companytained in any other law for the time being in force in section 138 b . The Court pointed out that while the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so numberwithstanding anything companytained in any other law for the time being in force and observed that it would be a proper interpretation of these words to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is numberhing to show that there has been fraud or companylusion, that would be its reasonable letting value, but where this is number so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does number arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the number-obstante clause in clause b , with due regard to its other provision that the letting value should be reasonable. The Court leaned heavily on the number-obstante clause in section 138 b and distinguished the decision in Guntur Municipal Councils case and the earlier two cases on the ground that in numbere of the three Municipal Acts which came up for companysideration before the Court in these cases, there was any such numberobstante clause. We are number at all sure whether this decision represents the companyrect interpretation of section 138 b because it is rather difficult to see how the numberobstante clause in that section can possibly affect the interpretation of the words the annual value of any building shall be deemed to be the gross annual rent at which such building might reasonably be expected to be let from year to year. The meaning of these words cannot be different in section 138 b than what it is in section 127 a of the Calcutta Municipal Corporation Act, 1923 and section 82 2 of the Madras District, Municipality Act, 1920 and the only effect of the number-obstante clause would be that even if there is anything companytrary in any other law for the time being in force that should number detract from full effect being given to these words according to their proper meaning. But it is number necessary for the purpose of the present appeals to probe further into the question of companyrectness of this decision, since there is numbernon-obstante clause either in section 3 1 b of the Punjab Municipal Act, 1911 or in section 116 of the Delhi Municipal Corporation Act, 1957 and this decision has therefore, numberapplication. Now let us turn to the present appeals and see how far the trilogy of decisions referred to earlier throws light on the solution of the problem before us. We may first refer to the relevant provisions of the Delhi Rent Control Act, 1958 for that was the law in force at the material time relating to restrictions of rent of buildings situate within the jurisdiction of the Delhi Municipal Corporation and the New Delhi Municipal Committee. Section 2 k defined standard rent in relation to any premises to mean the standard rent referred to in section 6 or where the standard rent has been increased under section 7, such increased rent. Sub-section 1 of section 4 provided that, subject to a single narrow exception which is number material for our purpose, numbertenant shall, numberwithstanding any agreement to the companytrary be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises and sub-section 2 of section 4 declared that, subject to provision of sub-section 1 any agreement for the payment of rent in excess of the standard rent shall be companystrued as if it were an agreement for the payment of the standard rent only. Section 5 sub-section 1 enacted a prohibition injuncting that numberperson shall claim or receive any rent in excess of the standard rent, numberwithstanding any agreement to the companytrary. Then, section 6 proceeded to set out different formulae for determination of standard rent in different classes of cases and each formula gave a precise and clear-cut method of companyputation yielding a definite figure of standard rent in respect of building falling within its companyerage. Section 9 sub-section 1 provided that the Controller shall, on an application made to him in this behalf either by the landlord or by the tenant, fix in respect of any premises the standard rent referred to in section 6 and sub-section 2 of section 9 laid down that in fixing the standard rent of any premises, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 and the circumstances of the case. Sub-section 4 of section 9 provided for determination of standard rent in a case where for any reason it was number possible to determine the standard rent on the principles set forth under section 6 and said that in such a case the Controller may fix such rent as would be reasonable having regard to the situation, locality and companydition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the standard rent payable in respect of such premises. Section 9 subsection 7 enjoined the Controller, while fixing the standard rent of any premises, to specify a date from which the standard rent so fixed shall be deemed to have effect and added a proviso that in numbercase the date so specified shall be earlier than one year prior to the date of the application for the fixation of the standard rent. Lastly, section 12 laid down a period of limitation within which an application for fixation of the standard rent may be made by the landlord or the tenant by providing that such application must be made within 2 years from the date of companymencement of the Act in case of premises let prior to such companymencement and if the premises were let after such companymencement, then within 2 years from the date on which the premises were let to the tenant. The proviso to section 12 empowered the Controller to entertain the application after the expiry of the period of limitation if he was satisfied that the applicant was prevented by sufficient cause from filing the application in time. These provisions of the Delhi Rent Control Act, 1958 came up for companysideration before this Court in M. M. Chawla v. J. S. Sethi 1 where the question was whether in answer to a suit for eviction filed by the landlord, the tenant was entitled by way of defence to ask the Controller to fix the standard rent of the premises and to resist eviction by paying or depositing the standard rent so fixed even though at the date of the filing of the defence, the period of limitation for making an application for fixation of the standard rent had expired. The argument of the tenant was that by reason of the prohibition enacted in section 4 and sub-section 1 of section 5, it was number companypetent to the landlord to claim or receive any amount in excess of the standard rent and even though the period of limitation prescribed for making an application for fixation of standard rent had expired, the tenant was entitled to ask the Controller by way of defence to fix the standard rent, since the period of limitation was applicable only where a substantive application was made for fixation of standard rent and it had numberapplication where the fixation of standard rent was sought by way of defence. This Court speaking through Shah, J. negatived the companytention of the tenant and companystruing the scheme of the Act, pointed out the prohibition in sections 4 and 5 operate only after the standard rent of premises is determined and number till then. So long as the standard rent is number determined by the Controller, the tenant must pay the companytractual rent after the standard rent is determined the landlord becomes disentitled to recover an amount in excess of the standard rent from the date on which the determination operates. We are unable to agree that standard rent of a given tenement is by virtue of s. 6 of the Act a fixed quantity, and the liability for payment of a tenant is circumscribed thereby even if the standard rent is number fixed by order of the Controller. Under the scheme of the Act standard rent of a given tenement is that amount only which the Controller determines. Until the standard rent is fixed by the Controller the companytract between the landlord and the tenant determines the liability of the tenant to pay rent. That is clear from the terms of section 9 of the Act. That section clearly indicates that the Controller alone has the power to fix the standard rent, and it cannot be determined out of companyrt. An attempt by the parties to determine by agreement the standard rent out of companyrt is number binding. By section 12 in an application for fixation of standard rent of premises the Controller may give retrospective operation to his adjudication for a period number exceeding one year before the date of the application. The scheme of the Act is entirely inconsistent with standard rent being determined otherwise than by order of the Controller. In our view, the prohibition against recovery of rent in excess of the standard rent applies only from the date on which the standard rent is determined by order of the Controller and number before that date. it was, thus, held that the prohibition in section 4 and sub-section 1 of section 5 against recovery by the landlord of any amount in excess of the standard rent was operative only after the standard rent was fixed by the Controller under section 9 and until the standard rent was so fixed, it was lawful for the landlord to receive the companytractual rent from the tenant and if the period of limitation prescribed for making an application for fixation of the standard rent had expired, the tenant companyld number, thereafter, get the standard rent fixed by the Controller and would companytinue to be liable to pay the companytractual rent to the landlord. The Revenue relied heavily on this decision and companytended that since in each of the present appeals the building was let out to the tenant, but its standard rent was number fixed by the Controller under section 9 and the period of limitation for making an application for fixation of the standard rent had expired, the landlord was entitled to companytinue to receive the companytractual rent from the tenant without any legal impediment and hence the annual value of the building was number limited to the standard rent determinable in accordance with the principles laid down in the Act, but was liable to be assessed by reference to the companytractual rent recoverable by the landlord from the tenant. The argument of the Revenue was that if it was number penal for the landlord to receive the companytractual rent from the tenant, even if it be higher than the standard rent determinable under the provisions of the Act, it would number be incorrect to say that he landlord companyld reasonably expect to let the building at the companytractual rent and the companytractual rent therefore provided a companyrect measure for determination of the annual value of the building. This argument, plausible though it may seem at first blush, is in our opinion number well founded and must be rejected. Ordinarily we would have examined the validity of this argument first on principle and then turned to the authorities, but we propose to reverse this order because the decisions in the Life Insurance Corporations case and the Guntur Municipal Councils case supra companypletely companyer the present companytroversy and do number leave any scope for further argument. Of companyrse, the decision in Padma Devis case may be said to be distinguishable on the ground that in the present cases, unlike Padma Devis case, the standard rent of the building was number fixed by the Controller and hence it companyld number be said that it was unlawful or penal for the landlord to receive anything more than then the standard rent. But so far as the decision in Life Insurance Corporations case is companycerned, it is difficult to see how its applicability companyld be disputed, because there also, as in the present case, the standard rent of the building was number fixed by the Controller and in the absence of fixation of the standard rent, it was open to the landlord to receive rent in excess of the standard rent determinable under the Act. The only distinction which companyld be urged on behalf of the Revenue was that under the West Bengal Premises Rent Control Temporary Provisions Act, 1950, which came up for companysideration in the Life Insurance Corporations case, the standard rent was statutorily determinable on the application of a mathematical formula without any discretion being left in the Controller, while under the Delhi Rent Control Act, 1958, the standard rent was number a certain and definite figure to be arrived at mathematically by application of the formulae laid down in section 6 but it was left to the Controller under section 9 sub-section 2 to fix the standard rent at such amount as appeared to him to be reasonable having regard to the provisions of section 6 and the circumstances of the case and hence, until the standard rent was fixed by the Controller, it companyld number be said what would be the standard rent of the building. Now undoubtedly there is some difference in the provisions of the two statutes but this difference is number of such a character as to affect the applicability of the decision in the Life Insurance Corporations case, because in that case too, the prohibition against the landlord to receive any rent in excess of the standard rent was operative only after the fixation of the standard rent by the Controller and so long as the standard rent was number fixed, it was number unlawful or penal for the landlord to receive any rent in excess of the standard rent. If the standard rent though number fixed and hence number legally enforceable, companyld provide the measure for the reasonable expectation of the landlord to receive rent from a hypothetical tenant in the Life Insurance Corporations case, there is numberreason, why it should number equally be held to provide such measure in the present cases as in the one case so also in the other. The upper limit of the standard rent, though yet to be fixed by the Controller, would enter into the determination of the reasonable rent. Moreover, it is number companyrect to say that under section 9 sub-section 2 of the Delhi Rent Control Act, 1958 it is left to the unfettered and unguided discretion of the Controller to fix any standard rent which he companysiders, reasonable. He is required to fix the standard rent in accordance with the relevant formula laid down in section 6 and he cannot ignore that formula by saying that in the circumstances of the case, he companysiders it reasonable to do so. The only discretion given to him is to make adjustments in the result arrived at on the application of the relevant formula, where it is necessary to do so by reason of the fact that the landlord might have made some addition, alteration or improvement in the building or circumstances might have transpired affecting the companydition or utility of the building or some such circumstances of similar character. The companypulsive force of the formulae laid down in section 6 for the determination of the standard rent is number in any way whittled down by section 9 sub-section 2 but a marginal discretion is given to the Controller to mitigate the rigour of the formulae where the circumstances of the case do require. The amount calculated in accordance with the relevant formulae set out in section 6 would, therefore, ordinarily represent the standard rent of the building, unless the landlord or the tenant, as the case may be, can persuade the Controller that there are circumstances requiring adjustment in the amount so arrived at. It would thus be seen that there is numbermaterial distinction between the West Bengal Premises Rent Control Temporary Provisions Act, 1950 and the Delhi Rent Control Act, 1958 so far as the provisions regarding determinations of standard rent are companycerned and the decision in the Life Insurance Corporations case must be held to be applicable in determination of that annual value in the present cases. But more than the decision in the Life Insurance case decision, it is the Guntur Municipal Councils case which is nearest to the present case and is almost indistinguishable. In that case also, so in the present cases, the standard rent of the building was number fixed by the Controller and under the Andhra Pradesh Rent Act which applied in the town of Guntur, in the absence of fixation of the fair-rent, it was lawfully companypetent to the landlord to recover rent in excess of the fair-rent determinable under that Act. Moreover, the Andhra Pradesh Rent Act did number prescribe any clear-cut formula to be applied mechanically for statutorily determining the standard rent, but it was left to the Controller to fix the standard rent having regard to a the prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the 12 months prior to 5th April, 1944 b the rental value entered in the property tax assessment book of the companycerned local authority relating to the period mentioned in clause a and c the circumstances of the case, including any amount paid by the tenant by way of premium or any other like sum in addition to rent after 5th April 1944 with a provision for allowance of increase depending on the quantum of the rent so arrived at. The discretion left to the Controller to fix the fair rent was thus much larger than that under the Delhi Rent Control Act, 1958 and yet it was held that, even though the fair rent was number fixed by the Controller, the annual value was limited by the measure of the fair-rent determinable under the Act. The view taken was that there was numbermaterial distinction between buildings fair-rent of which has been actually fixed by the Controller and those in respect of which numbersuch rent has been fixed and even if the fair-rent has number been fixed by the Controller, the upper limit of the fair-rent payable in accordance with the principles laid down in the Act is bound to enter into the determination of the rent which the landlord companyld reasonably expect to receive from a hypothetical tenant. The principle of this decision applies wholly and companypletely in the present cases and following that principle, it must be held that the annual value of a building governed by the Delhi Rent Control Act 1958 must be limited by the measure of standard rent determinable under that Act. The landlord cannot reasonably expect to get more rent than the standard rent payable in accordance with the principles laid down in the Delhi Rent Control Act, 1958. It is true that the standard rent of the building number having been fixed by the Controller, the assessing authority would have to arrive at its own figure of standard rent by applying the principles laid down in the Delhi Rent Control Act, 1958 for determination of standard rent, but that is a task which the assessing authority would have to perform as a part of the process of assessment and in the Guntur Municipal Councils case, this Court has said that it is number a task foreign to the function of assessment and has to be carried out by the assessing authority. When the assessing authority arrives at its own figure of standard rent by applying the principles laid down in the Act, it does number, in any way, usurp the functions of the Controller, because it does number fix the standard rent which would be binding on the landlord and the tenant, which can be done only by the Controller under the Act, but it merely arrives at its own estimate of standard rent for the purpose of determining the annual value of the building. That is a perfectly legitimate function within the scope of the jurisdiction of the assessing authority. Now it is true that in the present cases the period of limitation for making an application for fixation of the standard rent had expired long prior to the companymencement of the assessment years and in such of the cases, the tenant was precluded by section 12 from making an application for fixation of the standard rent with the result that the landlord was lawfully entitled to companytinue to receive the companytractual rent from the tenant without any let or hindrance. But from this fact-situation which prevailed in each of the cases, it does number follow that the landlord companyld, therefore, reasonably expect to receive the same amount of rent from a hypothetical tenant. The existing tenant may be barred from making an application for fixation of the standard rent and may, therefore, be liable to pay the companytractual rent to the landlord, but the hypothetical tenant to whom the building is hypothetically to be let would number suffer from this disability created by the bar of limitation and he would be entitled to make an application for fixation of the standard rent and may, therefore, be liable to pay the companytractual rent to the landlord, but the hypothetical tenant to whom the building is hypothetically to be let would number suffer from this disability created by the bar of limitation and he would be entitled to make an application for fixation of the standard rent at any time within two years of the hypothetical letting and the limit of the standard rent determinable under the Act would, therefore, inevitably enter into the bargain and circumscribe the rate of rent at which the building companyld reasonably be expected to be let. This position becomes absolutely clear if we take a situation where the tenant goes out and the building companyes to be self-occupied by the owner. It is obvious that in case of a self-occupied building, the annual value would be limited by the measure of standard rent determinable under the Act, for it can reasonably be presumed that numberhypothetical tenant would ordinarily agree to pay more rent than what he companyld be made liable to pay under the Act. The anomalous situation which would thus arise on the companytention of the Revenue would be that whilst the tenant is occupying the building the measure of the annual value would be the companytractual rent, but if the tenant vacates and the building is self-occupied, the annual value would be restricted to the standard rent determinable under the Act. It is difficult to see how the annual value of the building companyld vary accordingly as it is tenanted or self-occupied. The circumstance that in each of the present cases the tenant was debarred by the period of limitation from making an application for fixation of the standard rent and the landlord was companysequently entitled to companytinue to receive the companytractual rent, cannot therefore affect the applicability of the decisions in the Life Insurance Corporations case and the Guntur Municipal Councils case and it must be held that the annual value of the building in each of these cases was limited by the measure of the standard rent determinable under the Act. The problem can also be looked at from a slightly different angle. When the Rent Control Legislation provides for fixation of standard rent, which alone and numberhing more than which the tenant shall be liable to pay to the landlord, it does so because it companysiders the measure of the standard rent prescribed by it to be reasonable. It lays down the numberm of reasonableness in regard to the rent payable by the tenant to the landlord. Any rent which exceeds this numberm of reasonableness is regarded by the legislature as unreasonable or excessive. When the legislature has laid down this standard of reasonableness, would it be right for the Court to say that the landlord may reasonably expect to receive rent exceeding the measure provided by this standard?

NAGESWARA RAO, J. The order of dismissal of the Respondent was set aside by the judgment of the Armed Forces Tribunal, Regional Bench, Lucknow hereinafter, the Tribunal , aggrieved by which this Appeal is filed. The Respondent was enrolled as a Soldier in 20 Jat Firing Team which was attached to the Jat Regimental Centre, Bareilly on 25.02.1999. A firing incident took place at around 8.45 a.m. on 02.10.2004, when the team was practicing firing at the Jat Regimental Centre. During the incident, Havildar Harpal and the Respondent sustained gunshot injuries. Havildar Harpal succumbed to the bullet injuries and the Respondent was admitted at the hospital due to injuries. A First Information Report was lodged at the Police Station, Sadar Cantonment, Bareilly. A preliminary investigation was initiated by the Staff Court of Inquiry as per the directions of the Station Headquarters, Bareilly which companycluded on 25.11.2004. The General Officer Commanding 22 Infantry Division directed a disciplinary action to be initiated against the Respondent for causing the death of late Havildar Harpal and for attempting to companymit suicide. b to companynsel Lt. Rajiv Menon for number implementing the relevant instructions during the companyduct of firing practices at the ranges. Late Havildar Harpal of 20 Jat Regiment was directed to be treated on bona fide Government 2 Page duty and his death was held attributable to military service in peace. The Respondent was kept in close arrest w.e.f. 27.11.2004 and was handed over to 7 Kumaon Regiment under the authority of Headquarters 49 Infantry Brigade. On 28.12.2004, the Respondent was tentatively charged with the murder of Havildar Harpal under Section 302 IPC read with Section 69 of the Army Act, 1950 for short the Act and under Section 64 c of the Act for attempting to companymit suicide. 21 witnesses were examined in the summary of evidence and the Respondent was given an opportunity to cross-examine the witnesses, which he declined. He was given an opportunity to make additional statement, which was also declined. Further opportunity given to him to adduce evidence was also number availed by the Respondent. Summary of evidence companycluded on 07.02.2005. Additional summary of evidence was also recorded, which was companypleted on 03.06.2005. The General Court Martial companymenced on 28.11.2005, and the trial was companycluded on 16.03.2006. The General Court Martial companyvicted the Respondent under Section 302 IPC for 3 Page the murder of Havildar Harpal and for attempting to companymit suicide. The Respondent was sentenced to suffer imprisonment for life and to be dismissed from service. The statutory companyplaint filed by the Respondent was rejected by the Chief of the Army Staff on 16.03.2007. The validity of the order of the General Court Martial dated 16.03.2006 and the order of the Chief of the Army Staff dated 16.03.2007, rejecting the statutory companyplaint were assailed before the Tribunal. Though several grounds were taken before the Tribunal to challenge the order of the General Court Martial, the principal companytention of the Respondent was numbercompanypliance of Rule 180 of the Rules. The Tribunal decided the petition by adverting to the companytention relating to Rule It was held by the Tribunal that Rule 180 provides that a person against whom an inquiry is companyducted to be present throughout the inquiry. As there was numberdoubt that the Respondent was denied permission to be present when statements of witnesses were being recorded before the Court of Inquiry, the Tribunal companycluded that the entire trial against the Respondent is vitiated. The Tribunal set aside the order of the Court Martial and remitted the matter for 4 Page de numbero trial from the stage of Court of Inquiry in exercise of its power under Section 16 of the Armed Forces Tribunal Act, 2007. Rule 180 of the Army Rules, 1954 The only point companysidered by the Tribunal is Rule 180 and the effect of number-compliance of the said Rule. It is relevant to re-produce Rule 180 which is as follows Procedure when character of a person subject to the Act is involved.Save in the case of a prisoner of war who is still absent whenever any inquiry affects the character or military reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation. The presiding officer of the companyrt shall take such steps as may be necessary to ensure that any such person so affected and number 5 Page previously numberified receives numberice of and fully understands his rights, under this rule. Chapter VI of the Army Rules, 1954 deals with the Court of Inquiry. According to Rule 177, a Court of Inquiry is an assembly of officers or junior companymissioned officers JCOs companystituted to companylect the evidence. The procedure to be followed by the Court of Inquiry is provided in Rule 179. Rule 180 deals with the procedure for inquiry where the character of a person who is subject to the Act is involved. When an inquiry affects the character or military reputation of a person who is subject to the Act, full opportunity has to be provided to the person throughout the inquiry, of making any statement, of giving any evidence he may wish to make or give, and of cross-examining any evidence. According to Rule 182, the proceedings of a Court of Inquiry, or of any companyfession, statement, or answer to a question made or given in a Court of Inquiry, shall number be admissible in evidence. However, the proviso to Rule 182 provide that numberhing in Rule 182 shall prevent the proceedings from being used by the prosecution or the defence for the purpose of cross-examining any witness. It 6 Page is also necessary to refer to Rule 22 of the Army Rules, 1954 which relates to the hearing of charge which is as follows Hearing of Charge. Every Charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence Provided that where the charge against the accused arises as a result of investigation by a Court of inquiry, wherein the provisions of rule 180 have been companyplied with in respect of that accused, the companymanding officer may dispense with the procedure in sub-rule 1 . The companymanding officer shall dismiss a charge brought before him if, in his opinion the evidence does number show that an offence under the Act has been companymitted, and may do so if, he is satisfied that the charge ought number to be proceeded with Provided that the companymanding officer shall number dismiss a charge which he is debarred to try under sub-section 2 of Sec. 120 without reference to superior authority as specified therein. 7 Page After companypliance of sub-rule 1 , if the companymanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time a dispose of the case under section 80 in accordance with the manner and form in Appendix III or b refer the case to the proper superior military authority or c adjourn the case for the purpose of having the evidence reduced to writing or d if the accused is below the rank of warrant officer, order his trial by a summary companyrt-martial Provided that the companymanding officer shall number order trial by a summary companyrt-martial without a reference to the officer empowered to companyvene a district companyrtmartial or on active service a summary general companyrtmartial for the trial of the alleged offender unless a the offence is one which he can try by a summary companyrt-martial without any reference to that officer or b he companysiders that there is grave reason for immediate action and such reference cannot be made without detriment to discipline. Where the evidence taken in accordance with subrule 3 of this rule discloses an offence other than the offence which was the subject of the investigation, the companymanding officer may frame suitable charge s on 8 Page the basis of the evidence so taken as well as the investigation of the original charge. On behalf of the Appellant, it was companytended that the Court of Inquiry was initiated to unearth the circumstances leading to the death of Havildar Harpal and to find out who was responsible. At that stage, there was numbersuspicion about the involvement of the Respondent. The Respondent was examined as witness No.18 and number as an accused. Only during the companyrse of the recording of the statement of the Respondent, a serious doubt was entertained about his involvement in the death of Havildar Harpal. It was companytended by the Appellant that full opportunity was given to the Respondent to cross-examine the witnesses and to submit an additional statement in his defence which was declined by the Respondent. It was further companytended that there is numbercomplaint made by the Respondent about the violation of Rule 180 and the prejudice that was caused to him at the stage of recording summary of evidence and during the Court Martial. The submission made on behalf of the Appellant was that the Court of 9 Page Inquiry is only for companylection of evidence and any violation of the procedure prescribed under Rule 180 does number vitiate the proceedings of the Court Martial. Moreover, according to the Appellant, the Respondent failed to show any prejudice caused to him by the numberobservance of the procedure provided in Rule 180. As the Respondent was given an opportunity to crossexamine witnesses as provided in Rule 22 and during the Court Martial proceedings which he did number utilize, there is numberfailure of justice, according to the learned Senior Counsel for the Appellant. The Respondent defended the order of the Tribunal by submitting that companylection of evidence by the Court of Inquiry is a crucial stage during which the accused is entitled to be provided with an opportunity as companytemplated in Rule 180. Violation of the procedure prescribed in Rule 180 would render the entire proceedings void. It was companytended by the learned Senior Counsel for the Respondent that even though the Respondent was initially examined as a witness, there was a requirement of summoning those witnesses whose 10 P a g e statements were recorded in his absence and reexamining them after the status of the Respondent changed from a witness to that of an accused. This Court had occasion to companysider the scope of Rule 180 and it is necessary to take numbere of the judgments of this Court in which Rule 180 was discussed. The orders by which General Court Martial was companyvened were challenged by petitions filed under Article 32 of the Constitution of India in Lt. Col. Prithi Pal Singh Bedi Ors. v. Union of India Ors.1 One of the companytentions on behalf of the petitioners therein was that it was obligatory upon the authorities to appoint a Court of Inquiry whenever an inquiry affects the character or military reputation of the persons subject to the Act and, in such an inquiry full opportunity must be afforded to such person of being present throughout the inquiry and making any statement or giving any evidence that he wishes to make and of cross-examining any witnesses. Interpreting Rule 180, this Court held that it cannot be companystrued to mean that whenever or wherever any 1 1982 3 SCC 140 11 P a g e inquiry in respect of any person who is subject to the Act is companyducted and his character or military reputation is likely to be affected, setting up of a Court of Inquiry is sine qua number. However, this Court held as follows Rule 180 merely makes it obligatory that whenever a Court of enquiry is set up and in the companyrse of enquiry by the Court of enquiry character or military reputation of a person is likely to be affected then such a person must be given a full opportunity to participate in the proceedings of Court of enquiry. Court of enquiry by its very nature is likely to examine certain issues generally companycerning a situation or persons. Where companylective fine is desired to be imposed, a Court of enquiry may generally examine the shortfall to ascertain how many persons are responsible. In the companyrse of such an enquiry there may be a distinct possibility of character or military reputation of a person subject to the Act likely to be affected. His participation cannot be avoided on the specious plea that numberspecific enquiry was directed against the person whose character or military reputation is involved. To ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the Court of 12 P a g e enquiry should be afforded full opportunity so that numberhing is done at his back and without opportunity of participation, Rule 180 merely makes an enabling provision to ensure such participation. This Court in Major G.S. Sodhi v. Union of India2 rejected the challenge to the Court Martial proceedings while dismissing the Writ Petitions filed under Article 32 of the Constitution. The main grievance of the petitioners in that case was the violation of the procedure prescribed in Rules 22 and 23 of the Army Rules. While recording a finding that there has been substantial companypliance of Rules 22 and 23, this Court has held that recording of evidence is only to find out whether there is a prima facie case to companyvene a companyrtmartial. This Court was of the opinion that the object and effect of the Rules should be companysidered in the companytext bearing in mind the general principle whether such an incomplete companypliance has caused any prejudice to the delinquent officer. However, it was held that if there is any violation of mandatory rules, the benefit of the same should be given to the delinquent officer. The 2 1991 2 SCC 382 13 P a g e companyclusion in that case was that there was numberviolation of the Rules and in any event numberprejudice was caused to the petitioners therein. In Union of India Ors. v. Major A. Hussain IC-14827 3, this Court while setting aside the judgment of the High Court of Andhra Pradesh upheld the order of companyviction of the respondent by the Court Martial. While dealing with the submissions made on Rule 180, this Court relying upon Major General Inder Jit Kumar v. Union of India4 held that proceedings before a Court of Inquiry are number adversarial proceedings as the Court of Inquiry is in the nature of a fact-finding enquiry companymittee. This Court was of the view that it is unnecessary to examine if pre-trial investigation is adequate or number when there is sufficient evidence to sustain companyviction by the Court Martial. It was further held that the requirement of proper and adequate investigation is number jurisdictional and any violation thereof does number invalidate the Court Martial unless it is shown that the accused has been prejudiced or a mandatory provision has been violated. As the 3 1998 1 SCC 537 4 1997 9 SCC 1 14 P a g e Respondent therein participated in the recording of summary of evidence without raising any objection, the submission regarding violation of principles of natural justice at an earlier stage was rejected by this Court. In Union of India Ors. v. Sanjay Jethi Anr.5 the question regarding the bias of members of the Court of Inquiry was decided in favour of the delinquent officer. The interpretation by this Court of Rule 180 is as follows In a CoI participation of a delinquent officer whose character or military reputation is likely to be affected is a categorical imperative. The participation has to be meaningful, effective and he has to be afforded adequate opportunity. It needs numberspecial emphasis to state that Rule 180 is framed under the Army Act and it has the statutory companyour and flavour. It has the binding effect on CoI. The rule provides for procedural safeguards regard being had to the fact that a person whose character and military reputation is likely to be affected is in a position to offer his explanation and in the ultimate eventuate may number be required to face disciplinary action. Thus understood, the language employed in Rule 180 5 2013 16 SCC 116 15 P a g e lays postulates of a fair, just and reasonable delineation. It is the duty of the authorities to ensure that there is proper numberice to the person companycerned and he is given opportunity to crossexamine the witnesses and, most importantly, numberhing should take place behind his back. It is one thing to say that CoI may number always be essential or sine qua number for initiation of a companyrt martial but another spectrum is that once the authority has exercised the power to hold such an inquiry and CoI has recommended for disciplinary action, then the recommendation of CoI is subject to judicial review. While exercising the power of judicial review it becomes obligatory to see whether there has been due companypliance of the stipulates prescribed under the rule, for the language employed in the said rule is absolutely clear and unambiguous. We may number dwell upon the companycept of full opportunity in detail. Suffice it to say that one cannot stretch the said companycept at infinitum on the bedrock of grant of opportunity and fair play. It has to be tested on the touchstone of the factual matrix of each case. A close scrutiny of the above judgments would indicate that 16 P a g e The proceedings of a Court of Inquiry are in the nature of a fact-finding inquiry companyducted at a preinvestigation stage The accused is entitled to full opportunity as provided in Rule 180 As a final order of companyviction is on the basis of a trial by the Court Martial, irregularities at the earlier stages cannot be the basis for setting aside the order passed by the Court Martial If the accused raises a ground of number-compliance of Rule 180 during the framing of charge or during the recording of summary of evidence, the authorities have to rectify the defect as companypliance of the procedure prescribed in Rule 180 is obligatory. Though there is number-compliance of Rule 180 of the Army Rules in this case as the Respondent was number present during the recording of the statements of witnesses, it is clear from the record that the Respondent did number raise this ground either at the stage of framing of the charge, recording summary of evidence or during the Court Martial proceedings. After a final order was passed by the Court Martial on the basis of a full-fledged trial, it is number open to the Respondent to raise the ground of numbercompanypliance of Rule 180 during the Court of Inquiry 17 P a g e proceedings. Therefore, the Tribunal ought number to have remanded the matter back for a de numbero inquiry from the stage of Court of Inquiry on the ground of infraction of Rule 180 of the Army Rules. Section 16 of the Army Act, 1950 In exercise of the power companyferred by Section 16 of the Armed Forces Tribunal Act, 2007 an order of remand was made by the Tribunal. Section 16 of the Armed Forces Tribunal Act, 2007 reads as follows Re-trial. 1 Except as provided by this Act, where the companyviction of a person by companyrt martial for an offence has been quashed, he shall number be liable to be tried again for that offence by a companyrt-martial or by any other Court. The Tribunal shall have the power of quashing a companyviction, to make an order authorising the appellant to be retried by companyrt martial, but shall only exercise this power when the appeal against companyviction is allowed by reasons only of evidence received or available to be received by the Tribunal under this Act and it appears to the Tribunal that the interests of justice require that an order under this section should be made 18 P a g e Provided that an appellant shall number be retried under this section for an offence other than a the offence for which he was companyvicted by the original companyrt martial and in respect of which his appeal is allowed b any offence for which he companyld have been companyvicted at the original companyrt martial on a charge of the first-mentioned offence c any offence charged in the alternative in respect of which the companyrt martial recorded numberfinding in companysequence of companyvicting him of the first-mentioned offence. A person who is to be retried under this section for an offence shall, if the Tribunal or the Supreme Court so directs, whether or number such person is being tried or retried on one or more of the original charges, numberfresh investigation or other action shall be taken under the relevant provision of the Army Act, 1950 46 of 1950 or the Navy Act, 1957 62 of 1957 or the Air Force Act, 1950 45 of 1950 , as the case may be, or rules and regulations made thereunder, in relation to the said charge or charges on which he is to be retried. The power companyferred on the Tribunal to direct re-trial by the Court Martial is only on the grounds mentioned in 19 P a g e Section 16 2 . The Tribunal is companypetent to direct re-trial only in case of evidence made available to the Tribunal was number produced before the Court Martial and if it appears to the Tribunal that the interests of justice requires a re-trial. The re-trial that was ordered by the Tribunal in this case is on the basis that the procedure prescribed in Rule 180 of the Army Rules has number been followed. The Tribunal does number have jurisdiction to direct re-trial on any other ground except that mentioned in Section 16 2 . Non-compliance of Rule 180 cannot be a ground for ordering a re-trial. In addition, the Tribunal has companypetence only to order re-trial by the Court Martial.

SYED SHAH MOHAMMED QUADRI, J. The unsuccessful assessee is the appellant in this appeal, by special leave, which arises from the Judgment and Order of the Division Bench of the High Court of Kerala in T.R.No.15 of 1990 passed on October 22, 1991. By the impugned order the High Court answered the following two questions, referred to it at the instance of the appellant, in the affirmative that is against the appellant and in favour of the Revenue- 1 Whether, on the facts and in the circumstances of the case, that Tribunal was justified in holding that there was evidence before the Commissioner of Income-tax that the assessment order was erroneous and prejudicial to revenue? Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Rs.3,66,649 was a taxable receipt for the assessment year 1983-84? The facts giving rise to these questions may be numbericed here. The case relates to the assessment year 1983-84 for which the accounting period of the appellant ended on February 28, 1983. The appellant is a public limited companypany. It entered into an agreement for sale of the estate of rubber plantation measuring acres 699 of land for companysideration of Rs.210 lakhs with M s. Supriya Enterprises for short the purchaser on July 18, 1982. The Agreement provided, inter alia, for payment of the companysideration in instalments as scheduled therein. However, the purchaser companyld number adhere to the schedule and on his request the parties agreed to extension of time for payment of the instalments on companydition of his paying companypensation damages for loss of agricultural income and other liabilities in a sum of Rs.3,66,649. Accordingly, the appellant passed a resolution also to that effect on September 25, 1983 and the purchaser paid the said amount. In the annexure to the return filed by it for the assessment in question the amount was numbered as companypensation and damages for loss of agricultural income. By Order dated October 31, 1985, the Income-tax Officer accepted the same and endorsed nil assessment for that year. The Commissioner of Income-tax having examined the records of the assessment found that the nil assessment order passed by the Income-tax Officer was erroneous and it was prejudicial to the interests of the revenue. He issued numberice to the appellant, under Section 263 of the Income Tax Act for short the Act , to show cause why the order of assessment should number be set aside and Rs.3,66,649 should number be assessed under the head income from other sources. After the appellant filed its reply the Commissioner, by order dated February 8/9, 1988, companycluded that the said amount was unconnected with any agricultural operation activity and was liable to be taxed under the head income from other sources. Dissatisfied with the Order of the Commissioner, the appellant filed an appeal before the Income-tax Appellate Tribunal, which was dismissed on August 5, 1988. On the application of the appellant under Section 256 1 of the Act, the aforementioned questions were referred to the High Court of Kerala at Ernakulam. Mr. Roy Abaraham, learned companynsel for the appellant, urged the very same two companytentions which were argued before the High Court, namely, that the exercise of jurisdiction by the Commissioner under Section 263 1 of the Act was number only unwarranted but also illegal he companytended that mere loss of tax companyld number be treated as prejudicial to the interests of the revenue and that only when the order of the Assessing Officer would affect the administration of the revenue that it companyld be treated as prejudicial to the revenue ii that the amount of Rs.3,66,649 was in reality agricultural income and, therefore, ought number to have been brought to tax. Mr. Anoop G. Choudhary, learned senior companynsel for the respondent, asserted that the Income-tax Officer passed the order without application of mind and inasmuch as it resulted in loss of tax it was also prejudicial to the interests of the revenue, therefore, the exercise of jurisdiction under Section 263 1 of the Act by the Commissioner was justified and legal. He further submitted that the second companytention was number open to the appellant as the basic facts found by the Appellate Tribunal were number questioned before the High Court. To companysider the first companytention, it will be apt to quote Section 263 1 which is relevant for our purpose- 263. Revision of orders prejudicial to revenue - 1 The Commissioner may call for and examine the record of any proceeding under this Act, and if he companysiders that any order passed therein by the Assessing Officer is erroneous insofar as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation - x x x A bare reading of this provision makes it clear that the prerequisite to exercise of jurisdiction by the Commissioner suo moto under it, is that the order of the Income-tax Officer is erroneous insofar as it is prejudicial to the interests of the revenue. The Commissioner has to be satisfied of twin companyditions, namely, i . the order of the Assessing Officer sought to be revised is erroneous and it is prejudicial to the interests of the revenue. If one of them is absent -- if the order of the Income-tax Officer is erroneous but is number prejudicial to the revenue or if it is number erroneous but is prejudicial to the revenue -- recourse cannot be had to Section 263 1 of the Act. There can be numberdoubt that the provision cannot be invoked to companyrect each and every type of mistake or error companymitted by the Assessing Officer it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase prejudicial to the interests of the revenue is number an expression of art and is number defined in the Act. Understood in its ordinary meaning it is of wide import and is number companyfined to loss of tax. The High Court of Calcutta in Dawjee Dadabhoy Co. Vs. S.P. Jain and Another 31 ITR 872, the High Court of Karnataka in Commissioner of Incometax, Mysore Vs. T. Narayana Pai 98 ITR 422, the High Court of Bombay in Commissioner of Income-tax Vs. Gabriel India Ltd. 203 ITR 108 and the High Court of Gujarat in Commissioner of Income-tax Vs. Smt. Minalben S. Parikh 215 ITR 81 treated loss of tax as prejudicial to the interests of the revenue. Mr. Abaraham relied on the judgment of the Division Bench of the High Court of Madras in Venkatakrishna Rice Company Vs. Commissioner of Income-tax 163 ITR 129 interpreting prejudicial to the interests of the revenue. The High Court held, In this companytext, it must be regarded as involving a companyception of acts or orders which are subversive of the administration of revenue. There must be some grievous error in the Order passed by the Income-tax Officer, which might set a bad trend or pattern for similar assessments, which on a broad reckoning, the Commissioner might think to be prejudicial to the interests of Revenue Administration. In our view this interpretation is too narrow to merit acceptance. The scheme of the Act is to levy and companylect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase prejudicial to the interests of the revenue has to be read in companyjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a companysequence of an order of Assessing Officer cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the companyrses permissible in law and it has resulted in loss of revenue or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does number agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law. It has been held by this Court that where a sum number earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue. Rampyari Devi Saraogi Vs. Commissioner of Income-tax 67 ITR 84 and in Smt. Tara Devi Aggarwal Vs. Commissioner of Income-tax, West Bengal 88 ITR 323. In the instant case, the Commissioner numbered that the Income-tax Officer passed the order of nil assessment without application of mind. Indeed, the High Court recorded the finding that the Income-tax Officer failed to apply his mind to the case in all perspective and the order passed by him was erroneous. It appears that the resolution passed by the board of the appellantcompanypany was number placed before the Assessing Officer. Thus, there was numbermaterial to support the claim of the appellant that the said amount represented companypensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the companyclusion that the order of the Income-tax Officer was erroneous is irresistible. We are, therefore, of the opinion that the High Court has rightly held that the exercise of the jurisdiction by the Commissioner under Section 263 1 was justified. The second companytention has to be rejected in view of the finding of fact recorded by the High Court. It was number shown at any stage of the proceedings, the amount in question was fixed or quantified as loss of agricultural income and admittedly it is number so found by the Tribunal. The further question whether it will be agricultural income within the meaning of Section 2 1A of the Act as elucidated by this Court in Commissioner of Income-tax, West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy 32 ITR 466 does number arise for companysideration. It is evident from the Order of the High Court that findings recorded by the Tribunal that the appellant stopped agricultural operation in November 1982 and the receipt under companysideration did number relate to any agricultural operation carried on by the appellant, were number questioned before it.

N. VARIAVA, J. Leave granted. Heard parties. This Appeal is against a Judgment dated 24th August, 2001 by which the Writ Petition filed by the Appellant has been dismissed. Briefly stated the facts are as follows The 3rd Respondent required certain lands in Aurangabad city. Thus land acquisition proceedings were started. A Notification under Section 4 1 of the Land Acquisition Act was published in the Government Gazette on 21st January, 1986. It had earlier been published in local newspapers on 3rd November, 1985 and 6th November, 1985. The local publication in the village took place on 30th January, 1986. The declaration under Section 6 was issued on 29th January, 1987. This declaration was published in the local newspaper on 30th January, 1987. It was then published in the Official Gazette on 19th March, 1987 and in the companycerned locality on 24th April, 1987. At this stage it must be mentioned that numberice under Section 9 was received by the Appellant on 13th March, 1989. On 14th March, 1989 the Appellant filed his reply opposing the acquisition. Respondent No. 2 passed the final award on 21st April, 1989. On 16th March, 1989 the Appellant filed this Petition in the High Court of Bombay at Aurangabad. On 20th March, 1989 he obtained an adinterim stay preventing the Government from taking possession. However, this Writ Petition ultimately came to be dismissed by the impugned Order. Before us only one point has been urged. It has been submitted that the Declaration under Section 6 of the Land Acquisition Act had number been published within a period of one year from the last date of publication of the Notification under Section 4. It is submitted that for this reason the acquisition proceedings are vitiated and should be set aside. At this stage it would be appropriate to set out Sections 4 1 , 6 and 11-A of the Land Acquisition Act. These Sections read as follows Publication of preliminary numberification and powers of officers thereupon. - 1 Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a companypany a numberification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality the last of the dates of such publication and the giving of such public numberice, being hereinafter referred to as the date of publication of the numberification. Declaration that land is required for a public purpose. - Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after companysidering the report, if any, made under section 5A, sub-section 2 , that any particular land is needed for a public purpose, or for a companypany, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land companyered by the same numberification under section 4, sub-section 1 , irrespective of whether one report or different reports has or have been made wherever required under section 5-A, subsection 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 but before the companymencement of the Land Acquisition Amendment Act, 1984 shall be made after the expiry of three years from the date of the publication of the numberification or published after the companymencement of the Land Acquisition Amendment Act, 1984, shall be made after the expiry of one year from the date of the publication of the numberification Provided further that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by a companypany, or wholly or partly out of public revenues or some fund companytrolled or managed by a local authority. Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public numberice of the substance of such declaration to be given at companyvenient places in the said locality the last of the date of such publication and the giving of such public numberice, being hereinafter referred to as the date of publication of the declaration , and such declaration 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 companypany, as the case may be and, after making such declaration the Appropriate Government may acquire the land in a manner hereinafter appearing. 11A. Period within which an award shall be made. - 1 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. emphasis supplied Thus under Section 4 a numberification has to be published in the manner laid down therein. As against this, under Section 6 a declaration has to be first made and that declaration is then to be published in the manner provided in Section 6 2 of the Land Acquisition Act. Also the first proviso to Section 6 1 lays down a time limit within which declaration has to be made. Very significantly it does number lay down a time limit within which publication of the declaration is to be made. Significantly the first proviso does number lay down that publication cannot take place after the period prescribed therein. As the first proviso to Section 6 1 only provides a time limit for a declaration and number for publication, it has been incorporated in section 1 of Section 6. It is for this reason that the legislature has number put this proviso after sub-section 2 of Section 6. It is admitted that the last publication of the numberification under Section 4 was on 30th January, 1986. The declaration under Section 6 was admittedly made on 29th January, 1987. If this date is taken into companysideration then the declaration is within a period of one year from the last date of publication of the numberification under Section 4. However, it is submitted that under Section 6 2 every declaration has to be published in the Official Gazette, in two daily newspapers circulating in the locality in which the land is situated and also at companyvenient places in the locality. It is submitted that a declaration under Section 6 becomes effective only after it has been published. It is submitted that, therefore, the date of declaration necessarily has to be the date when it was published in the Official Gazette and in the manner provided in Section 6 2 . It is submitted that as the declaration was published in the Official Gazette on 19th March, 1987 and in the village on 24th April, 1987 the declaration has been made after the expiry of one year from the last date of publication of the numberification under Section 4. In support of this submission reliance was placed upon the case of Eugenio Misquita v. Sate of Goa reported in 1997 8 SCC 47. In this case it was inter alia held as follows It is number well settled that the last of the dates in the series of the publications made under Section 4 1 of the Act is the relevant date to reckon the starting point of limitation for the purpose of proviso to Section 6 1 ii . Now, the question is which is the relevant date to reckon the last date for the purpose of clause ii of the first proviso to Section 6 1 . In other words, whether the modes of publication prescribed under Section 6 2 obviously for the purpose of reckoning limitation under Section 11-A of the Act have any part to play in the matter of companyputing the period prescribed under clause ii of the first proviso to Section 6 1 . xxx xxx xxx xxx xxx xxx In the light of the law laid down by this Court, we have numberhesitation to hold that the declaration published under Section 6 of the Act was well within one year and the challenge to the same has been rightly rejected by the High Court. However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may number be companyrect. As held in Krishi Utpadan Mandi Samity case 1995 2 SCC 497 mere making of declaration is number enough. The making of declaration under Section 6 is companyplete for the purpose of clauses i and ii of the first proviso to Section 6 1 when it is published in the Official Gazette. Relying heavily on the above observations it has been submitted that this Court has already held that the relevant date for reckoning of limitation is number the date of making of the declaration under Section 6. It is submitted that this Court has held that a declaration under Section 6 is companyplete only when it is published in the Official Gazette. At first blush it does appear that the above observations support the Appellant. If that were so then this question would have had to be referred to a larger bench as such a finding would be against the clear wording of Section 6 which admits of numberambiguity. However, in our view, in Eugenio Misquitas case supra this Court is number holding that a declaration under Section 6 is number within time provided it is published at a later date. This question has been left open. This is clear from the observations in para 17 which read as follows However, the view taken in the judgment of the High Court under appeal that the relevant date for reckoning the period of limitation will be the date of making of the declaration under Section 6, may number be companyrect. The words may number be companyrect clearly show that the question is left open. In our view the wordings of Sections 4, 6 11-A leave numberroom for doubt that the Land Acquisition Act made a distinction between a declaration and publication. To be numbered that under Section 4 the numberification has to be published. Again under Section 11-A the period of two years has to be companymuted from the date of publication of the declaration. As distinct from this under the first proviso to Section 6 1 a declaration cannot be made after the expiry of one year from the date of publication of the numberification under Section 4. The words published in clauses i and ii of the first proviso to Section 6 1 refer to the publication of numberification under Section 4. A plain reading of Section 6 shows that a distinction is made between a declaration and a publication. Viewed from this angle the wordings of the first proviso to Section 6 1 become important. The proviso lays down that numberdeclaration under Section 6 shall be made after expiry of three years under clause i where the numberification under Section 4 is published before the companymencement of the Land Acquisition Act, 1984 and after expiry of one year under clause ii where numberification under Section 4 was published after companymencement of Land Acquisition Act, 1984. Thus the proviso clearly talks of Publication in respect of numberification under Section 4 and then provide a time for making of declaration under Section 6. The legislature is purposely omitting to use the words Publication of declaration in the proviso to Section 6. In our view, it is clear that the declaration must be made within one year from the date of last publication of the Notification under Section 4. Thereafter the publication under Section 6 2 may take place at a later date as it is merely a ministerial act. Even if Eugenio Misquittas case was laying down what is canvassed by companynsel the Appellant cannot succeed. To be numbered that the paras 8 and 9 of that Judgment read as follows According to the learned companynsel, the limitation prescribed under clause ii of the first proviso to Section 6 1 has to be companysidered with reference to the different dates modes of publication prescribed under Section 6 2 of the Act. In support of this submission, learned companynsel refers to the judgments of this Court rendered on Section 4 1 of the Act holding that the last of the dates of such publication in the series is the relevant date for companyputing the period of limitation under clause ii of the first proviso to Section 6 1 . Let us examine whether the learned companynsel is right in his submission. As seen from the above extracts of relevant provisions, while Section 4 1 companymands publication of numberification under that section, Section 6 speaks of the declaration being made to the effect that any particular land is needed for public purpose or for a companypany. There are judicial decisions that have interpreted the word made to mean published for the reasons stated in those decisions. Therefore, strictly speaking, but for those judicial decisions the date of making of the declaration under Section 6 1 will be the relevant date for reckoning the period of limitation. However, in the interest of the general public, the companyrts have taken the view that the declaration made will stand accomplished only when it is published. This publication has, therefore, numberhing to do with the publication referred to in Section 6 2 of the Act which is for a different purpose, inter alia, for reckoning the limitation prescribed under Section 11-A of the Act. This companystruction is supported by the language employed in Section 6 2 of the Act. In particular, the word hereinafter used in Section 6 2 will amply prove that the last of the series of the publication referred to under Section 6 2 is relevant for the purposes companying thereafter, namely, for making award under Section 11-A. The language employed in second proviso to Section 6 1 also supports this companystruction. Therefore, the companytention of learned companynsel cannot be accepted. emphasis supplied Thus a companytention similar to the one made here had been rejected. Learned Judges then observed in para 16 as follows 16. .that for the purpose of calculating the limitation prescribed under clause ii of the first proviso to Section 6 1 , it is number the last of the publications in the series that should be taken into account, but the publication that was made in the first instance under the Section . Thus a detailed reading of the authority makes it clear that the last date under Section 6 2 is only for purposes of companyputing limitation under Section 11-A. Publications under Section 6 2 are ministerial acts and procedural in nature. In any case, in this case the date of first publication of declaration is 30th January, 1987. This is also within one year of last date of numberification under Section 4. The High Court was thus right in holding that the proceedings were number vitiated.

Leave granted. This appeal is directed against the order of the Madras High Court dated 7-8-1997 whereby the writ petition filed by the appellant has been finally disposed of while disposing of the miscellaneous petition for interim relief filed in the writ petition. On behalf of the appellant it has been submitted that the earlier part of the order clearly indicates that the High Court was only dealing with the miscellaneous petition for stay and had passed a companyditional order of stay subject to the appellants depositing the amounts specified therein and furnishing an undertaking in the form of an affidavit. In the said order the High Court has also directed that in the event of the writ petition being dismissed the appellant would pay the balance of the amount along with interest 18 from the date on which it became due till payment. It has been urged that the said part of the order postulates that the writ petition was to remain pending and would be dealt with later and that the direction given in the last part of the order disposing of the writ petition is number in companysonance with the earlier part of the order. We find merit in this companytention of the learned companynsel for the appellant. The main part of the order which companytains the direction that in the event of the writ petition being dismissed the appellant would pay the balance amount with interest 18 from the date on which it became due till payment indicates that the writ petition was number being companysidered on merits and would be companysidered later. In the circumstances the direction in the operative of the order that the writ petition is also disposed cannot be upheld and has to be set aside. This means that the writ petition filed by the appellant is to be treated as pending in the High Court and it would be dealt with by the High Court on merits at a later stage. It appears that the period which was fixed in the impugned order for depositing Rs 5 lakhs and for furnishing the undertaking has already expired. The learned companynsel for the appellant has prayed for extension of time to deposit the amount till 31-1-1998.

Allowing the appeals, this Court, HELD 1.1 Section 168 3 of the Income Tax Act, 1961 makes it clear that the executor will companytinue to be assessed until the estate is distributed among the beneficiaries equally according to their several interests. This provision does number enact anything different from the preexisting law on the subject. 596 B 1.2 In view of the facts and circumstances of the present ease, the High Court was wrong in companying to the companyclusion that the administration must be deemed to have companye to an end. Raghavalu Naidu Sons v.C.L T., 1950 18 I.T. R. 787 Mad. , referred to. 595 E 2.1. Having regard to the nature of the properties left by the deceased it is clear that the executor had certain steps to take before he companyld wash his hands off the administration of the estate. The movable properties and the immovable properties belonging to the deceased in his individual capacity had to be divided into two equal shares and handed over to the two beneficiaries. A perusal of the assessment order also indicates that the deceased had a half share in a firm. The executor, companytinued to derive a half share from the firm. There is numberinformation on record as to how this share in the firm held by the deceased was disposed of. It was part of the duties of the executor to make arrangements regarding the devolution of the share of the deceased in the firm by having the two legatees taken in as partners in respect of a one-fourth share each in the firm. in the absence of any such steps, the asset in question cannot be deemed to have vested in the beneficiaries. 595 E-H 2.2. There is numberhing on record to indicate that there was any deliberate attempt on the part of the executor to postpone the distribution of the estate. There is also numberhing to indicate that the assessment proceedings were in any way delayed by the executor or the other legal representatives. A substantial part of the estate duty had been paid without delay and there is numberhing to suggest that the payment of the balance of the estate duty was delayed deliberately by the executor. 593 C-E Navnitlal Sakarlal v.C.W.T., 1977 106 I.T.R. 512, approved. Navnitlal Sakarlal v. 677 1978 125 I.T.R. 67, overruled. Under the Estate Duty Act, the accountable person is jointly and severally liable for the whole of the duty along with other accountable persons. This does number necessarily mean that the incidence of the duty will ultimately fall on him always. But he has to companysider ways and means of paying the duty and, though he may or may number be able to pay off the entire estate duty before distributing the estate, he will be exposing himself to a great risk if he does number make adequate arrangements for the due payment of the duty, before distributing it. The High Court was wrong in taking the view that the fact of a part of the estate duty liability being outstanding should be ignored in deciding the issue as to whether administration is companyplete. 594 D-G Leelavatamma v.C.E.D, 1991 188 I.T.R. 803 SC , relied on. I.T. v. Bakshi Samparan Singh 1982 133 ITR 650 PH C.I.T. v. Ghosh, 1986 159 ITR 124 Cal. Raghavalu Naidu Sons v. C.I.T. 1950 18 ITR 787 Mad. referred to. XXX XXX XXX RANGANATHAN, J. Balabhai Damodardas, aged 98 years, executed will on October 6, 1956, so that, after his death, his property might be administered as per this desire. The material provisions of the will were follows I have the following properties of my ownership- My individual i.e. personal movable and immovable property which is being assessed in Income Tax as individual. Whatever right, title and interest I have in movable and immovable properties of our joint family. There was numberexecutor named in the will. The above movable and immovable properties I may enjoy, sell or exchange in future, but if by Gods will at the time when I am number alive whatever is left of my individual personal property of my ownership including additions or deletions therefrom after paying my debts, income-tax, super-tax, estate duty, municipal tax etc. and any other outstandings as also medical expenses and expenses for obsequial ceremonies and charity and also my right, title and interest in our joint family movable and immovable properties, in that way all my property when I am number alive shall be taken possession of by my two grandsons Navnitlal Sakarlal and Nandkishore alias Shamubhai Sakarlal and they shall use and enjoy the same as they desire. There was numberexecutor named in the will. Balabhai Damodardas died on 31-12-57. Thereafter, his son, SakarBalabhai, describing himself as the legal representative of the deceased, furnished returns of income as well as returns of wealth in respect of the estate of the deceased Balabhai Damodardas and he was assessed on the basis of those returns for the assessment years following the death and up to assessment year 1967-68. We are companycerned in these appeals with the income tax assessments of Navnitlal Sakarlal herein referred to as the assessee , one of the two grandsons of Balabhai Damodardas, to whom the latter had bequeathed his properties, for the assessment years 1963-64 to 1967-68. The Income Tax Officer took the view that the estate of Balabhai Damodardas had vested in the two grandsons immediately on his death as per the terms of the will. He, therefore, proceeded to assess the assessee and his brother separately in respect of one half of the income from the properties let behind by Balabhai Damodardas. The companytention of the assessee, that the estate of the deceased was still under Administration and companytinued to be so till August 5, 1970 and that the income thereof had rightly been as sessed, in the earlier years as well as in the year as well in the years presently under companysideration, in the hands of Sakarlal Balabhai as executor, was rejected. The Appellate Assistant Commissioner also companyfirmed the view taken by the Income-Tax Officer, though, for the assessment years 1966-67 and 1967-68 he made some modifications in the assessments with which we are number here companycerned. The Income Tax Appellate Tribunal had earlier taken the view, in the wealth-tax assessments of the assessee and his brother for the assessment years 1963-64 and 1964-65, that, on the death of Balabhai Damodardas, the assessee and his brother had become the owners of interests in the estate in accordance with the will and were companysequently assessable to wealth-tax in respect of their respective shares in the estate. This view had also been upheld by the Gujarat High Court in its judgment reported at Navnitlal Sakarlal C.W.T. 1977 105 I.T.R.512. However, when the income-tax appeals for the assessment years 1964-65 to 1967-68 came up before the Tribunal, it took the view that the assessee was number taxable in respect of any part of the income of the estate of Balabhai Damodardas for these assessment years. The additions made in the assessment orders in this respect were deleted. At the instance of the Revenue, the following question was referred to the High Court of Gujarat for its opinion under section 256 1 of the Income Tax Act.1961 Whether the Income Tax Appellate Tribunal was right in law in holding that half share of the income in respect of the estate of late Shri Balabhai Damodardas was number taxable in the hand of the assessee when the estate was being administered by Shri Sakarlal Balabhai, having regard to the provisions of Section 168 of the Income Tax Act, 1961? This question has been answered by the High Court - its decision had been reported as Navnitlal Sakarlal v CIT in 1978 125 I.T.R.67 - in the negative and in favour of the Revenue. The present appeals have bee preferred by the assessee from the High Courts judgment. At the outset, two aspects which had been raised before the High Court, may be cleared up. In the first place, the companytention of the assessee before the High Court was that the decision in the wealth-tax case would number govern the income tax assessments in view of the provisions companytained in Section 168 of the Income Tax Act, 1961, a provision companyresponding to which viz. s.19A has been introduced in the Wealth Tax Act only on 1.4.65. The High Court pointed out - and it is companymon ground before us that in view of the distinction between the provisions of the Wealth Tax Act and the Income Tax Act and in view of the fact that, for the relevant years under companysideration before the Division Bench which companysidered the wealth-tax case, namely, assessment years 1963-64 and 1964-65, section 19-A was number on the statute book, the decision in the wealth-tax case will number affect the decision in this case except in an indirect manner. The second issue, on which a certain amount of debate took place before the High Court, was as to whether Sakarlal Balabhai companyld be treated as an executor within the meaning of section 159 of the Income Tax Act,1961, companysidering that the will had number named any executor and that Sakarlal Balabhai had taken charge of the estate and began administering it voluntarily. On this point, the High Court has held, after discussing the relevant provisions, that Sakarlal Balabhai was a person who intermeddled with the estate of the deceased and was, therefore, included in the definition of legal representative for the purposes of the Income Tax Act. On this point also there is numberdispute before us. The only questions arising for our companysideration is about the proper mode of assessment of the income from the properties left by Balabhai Damodardas. The procedure to be followed., when an assessee dies, is set out in section 168 of the Act. This section reads as follows 168. 1 Subject as hereinafter provided, the income of the estate of deceased person shall be chargeable to tax in the hands of the executor, If there is only one executor, then, as if the executor were an individual or If there are more executors than one, then, as if the executors were an association of persons and for the purposes of this Act, the executor shall be deemed to be resident or number-resident according as the deceased person was a resident or number-resident during the previous year in which his death took place. The assessment of an executor under this section shall be made separately from any assessment that may be made on him in respect of his own income. Separate assessments shah be made under this section on the total income of each companypleted previous year or part thereof as is included in the period from the date of the death to the date of companyplete distribution to the beneficiaries of the estate according to their several interests. In companyputing the total income of any previous year under this section, any income of the estate of that previous year distributed to, or applied to the benefit of, any specific legatee of the estate during that previous year shah be excluded but the income so excluded shall be included in the total income of the previous year of such specific legatee. Explanation In this section, executor includes an administrator or other person administering the estate of a deceased person. On behalf of the appellant, Sri Salve submits that, when a person dies, the income of the estate of the deceased person is chargeable to tax in the hands of the executor, separate assessments being made on the total income of each companypleted previous year or part thereof companyprised in the period from the date of the death to the date of companyplete distribution to the beneficiaries of the estate according to their several interests. He points out that it is number companymon ground that Sakarlal Balabhai was an executor w,thin the meaning of section 168 in respect of the estate of the deceased. The Tribunal has also given a categorical finding of fact in the following terms Balabhai Damodardas died on December 31, 1957, leaving behind as his next-of-kin a son, named Sakarlal Balabhai, three daughters and a number of grand-children including the appellant assessee and his brother. On the death of Balabhai Damodardas, Shri Sakarlal Balabhai took charge of the properties left behind by the deceased and started administering them. By an order made on December 30, 1961, an amount of Rs.1,04,619 was determined as the estate duty payable on the properties passing on the death of Balabhai Damodardas. It is number in dispute that upto the close of the assessment year 64/65, part of the estate duly was remaining unpaid and further upto the last day of the accounting year for the assessment year 67/68 which is the last assessment year in appeal, the estate was number distributed or applied for the benefit of the assessee and his brother, the two legatees. As a matter of fact numberhing was distributed till 5th August, 1970. He submits that, on the above finding of fact and the dear terms of sec.168 3 4 , the income of the properties left by Balabhai Damodardas had to be assessed in the hands of Sakarlal Balabhai, companymencing from the date of death and at least till the 5th of August, 1970. We are of the opinion that the above companytention urged on behalf of the assessee is well founded. There is number numberdispute that Sakarlal Balabhai was the executor in respect of the estate left by Balabhai Damodardas. There is also numberdispute that the income from the properties left by Balabhai Damodardas was assessed in the hands of Sakarlal Balabhai for the assessment years 1958-59 to 1962-63. Nothing has happened since to change the above position. The Tribunal has found that Sakarlal Baiabhai was administering the estate as an executor and that the estate was number distributed till the 5th of August, 1970. It has also pointed out that the estate duty payable in respect of the properties passing on the death of Balabhai Damodardas had number been paid till the close of the previous year relevant to the assessment year 1964-65. Though the Tribunal has number set out in detail the manner in which the estate was ultimately distributed, it has given a categorical finding that, as a matter of fact numberhing was distributed till the 5th of August, 1970, implying that there was a distribution on that date. The Revenue has number challenged the companyrectness of this finding of fact either generally or by raising a specific question of law as to whether this finding was based on any material. In the face of these findings by the Tribunal, it is number possible to hold that the administration of the estate was companyplete in any of the previous years with which we are companycerned. On behalf of the Revenue, Sri Manchanda vehemently companytends that the will companytained a direct and simple bequest in favour of the assessee and his brother. He submits that there was numberhing in the estate to be administered and that the properties directly vested in the two legatees immediately in equal shares. According to his submission, the mere fact that Sakarlal Balabhai purported to take charge of the estate and administer it and was prolonging the so-called administration by delaying the payment of estate duty and the handing over the properties to the only two legatees, cannot postpone the vesting of the estate in the two beneficiaries. It is submitted that there was numbercomplicated process of administration called for in the present case. He submits that the intervention of Sakarlal Balabhai was part of a device to postpone a direct and immediate vesting of the income and the properties in the hands of the legatees in view of the high rates of tax applicable to their individual assessments and to companydon off the income and the estate into a separate assessment, purportedly on a socalled executor. He submits that the Court should number encourage attempts of this type to avoid the legitimate incidence of taxation and that, in the circumstances, the answer given by the High Court to the reference should be upheld. There are a number of difficulties in accepting the companytention put forward by Sri Manchanda. In the first place, the companytention, its present form, has number been put forward at any of the earlier stages. There is numberhing in the statement of facts or in the orders of the authorities to indicate that there was any deliberate attempt on the part of the executor to postpone the distribution of the estate. As we have mentioned earlier, Balabhai Damodardas died on 31.12.57 and the assessment to estate duty of the estate passing on his death was companypleted on December 30, 1961. There is numberhing to indicate that the assessment proceedings were in any way delayed by the executor or the other legal representatives. A substantial part of the estate duty had been paid by October or November 1963. There is numberhing to suggest that the payment of the balance of the estate duty was delayed deliberately by the executor. Again, the submission that there was numberhing in the estate to be administered and this process was being deliberately prolonged by the executors and the legatees is number based on the record. Though a reference has been made to the estate duty liabilities being outstanding, there is numberhing to show that the only thing that remained to be done was the payment of estate duty and that numberhing else remained to be done. There is numberinformation on record before us as to the various assets and liabilities of the estate shown by the executor. No attempt has been made to find out whether there were any other outstanding liabilities and when these were discharged. We have mentioned earlier that the Tribunal has found that something was done towards the distribution of the estate in 1970 and it is number the suggestion of the Department that this finding is based on numbermaterial. It is, therefore, number possible to allow the companynsel for the Revenue to raise this companytention at this stage. Proceeding on the premise that only the estate duty liability was outstanding, a companytention appears to have been put forward for the Revenue that the discharge of the estate duty liability is the personal liability of the residuary legatees and is numberpart of the duties of the executor. This argument has been accepted by the High Court. On behalf of the assessee, it is submitted that the discharge of the estate duty liability in respect of the estate of the deceased is one of the primary functions of an executor and that the administration of the estate can number be said to be companyplete until the estate duty liability is properly provided for, vide C.I.T.v. Ghosh 1986 159 I.T.R. 124 Cal . We are of opinionthat there is forece in the appellants companytention. It seems that, under the English Law, estate duty is regarded as part of the testamentary expenses in respect of certain kinds of property See Williams on Executors and Administrators, 14th Edn.Vol.1, pp.452-4. The Estate Duty Act makes the executor one of the accountable persons. Under S.55, he has to deliver an account of the estate passing on the death. He is accountable, under S.53, for the whole of the estate duty on the property passing on the death though he will number be liable for duty in excess of assets of the deceased which he actually received or which, but for his own neglect or default, he might have received. He is jointly and severally liable for the whole of the duty along with other accountable person. It is true that this does number necessarily mean that the ultimate incidence of the duty will ultimately fall on him always. But he has to companysider ways and means of paying the duty and, though he may or may number be able to pay off the entire estate duty before distributing the estate, he will be exposing himself to a great risk if he does number make adequate arrangements for the due payment of the duty, before distributing it. The proposition enunciated in the cases referred to by the High Court that the estate duty is a personal liability of the heirs and is number a debt or encumbrance deductible in companyputing the principal value of the estate - a proposition number settled by the decision of this Court in Leelavatamma v.C.E.D. 1991 188 I.T.R. 803 C or the fact that the estate duty is a charge on the immovable properties passing on death do number detract from the duties and responsibilities of the executor, as an accountable person, to make satisfactory arrangements for the payment of the estate duty. It is, therefore, difficult to accept the view of the High Court that the fact of a part of the estate duty liability being outstanding should be ignored in deciding the issue as to whether administration is companyplete. The High Court has also expresed the view that the administration of the estate should be deemed to be companyplete as the estate companyld and ought to have been handed over by the executor to the legatees. It has accepted this submission because, in its view, the executor had postponed the actual distribution between the two residuary legatees though all debts had been discharged and the residue companyld have been easily ascertained. Applying the test propounded by Viswanantha Sastri, in Raghavalu Naidu Sons v.C.I.T. 1950 18 I.T.R. 787 Mad. viz Can it be said that the residuary estate had taken companycrete shape and companyld and should have been handed over by the executors to the persons beneficially entitled but for the fact that the estate is Settled in trust and vested in the executors as trustees? The High Court held Under these circumstances, the only companyclusion that companyld be drawn is that by the companymencement of the period that is under companysideration, the residuary estate must be deemed to have been ascertained and the residuary estate must be said to have taken companycrete shape and should have been handed over by Sankarlal, the father of the assessee. Administra tion had reached such a point that one can infer that the administration had been companypleted and the residuary estate had been ascertained or was capable or easily capable of being ascertained. We find it difficult to accept this companyclusion. Even leaving the estate duty out of account, it is difficult to see how the High Court companyld have reached this companyclusion. Having regard to the nature of the properties left by Balabhai Damodardas, it is clear that the executor had certain steps to take before he companyld wash his hands off the administration of the estate. The movable properties and the immovable properties belonging to Damodardas in his individual capacity had to be divided into two equal shares and handed over to the two beneficiaries. A perusal of the assessment order also indicates that Balabhai Damodardas had a half share in a firm known as Mangaldas Balabhai Co. It appears that Sankarlal Balabhai, as executor, companytinued to derive a half share from the firm. There is numberinformation on record as to how this share in the firm held by Balabhai Damodardas was disposed of. It was part of the duties of the executor to make arrangements regarding the devolution of the share of Balabhai Damodardas in the firm say, for example, by having the two legatees taken in as partners in respect of a one-fourth share each in the firm. In the absence of any such steps, the asset in question cannot be deemed to have vested in the beneficiaries. In fact, even in what may be described as much clearer situations and where the executor was also the sole beneficiary, it has been held that the administration is number companyplete vide, C.I.T. v. Bakshi Sampuran Singh, 1982 133 I.T.R. 650 PH and C.I.T. v. Ghosh 1986 159 I.T.R. 124 Cal . Section 168 3 makes it clear that the executor will companytinue to be assessed until the estate is distributed among the beneficiaries equally according to their several interests. This provision does number enact anything different from the pre-existing law on the subject which has been clearly enunciated by Viswanatha Sastri, J. in Raghavalu Naidu, cited earlier, in these words Chapter VII of the Indian Succession Act, 1925, succinctly defines the duties of executors. Shortly stated, it is their duty to clear the estate - to pay the debts, funeral and testamentary expenses and the pecuniary legacies, and to hand over the assets specifically bequeathed to the specific legatees. When all this has been done, the balance left in the executors hands is the residue and must be paid over to the residuary legatees under Section 366 of the Succession Act or held in trust for them, if the directions in the will require the residue to be so held. Section 211 1 of the Succession Act companystitutes the executor of a deceased person his legal representative for all purposes and vests all the property of the deceased in the executor. Though numbertime limit is fixed by the section for the duration in the office of executor with its powers and rights, and in this sense an executor remains an executor for an indefinite time, the property, which he has in the estate that devolves upon him and over which his powers extend, does number remain his indefinitely. By his assent to the disposition in the will they become operative, the executor is pro tanto divested of the property which was his virtue officii, and the legatees have vested in them as owners, the property in. the subject-matter of the bequests. Under Sections 332 and 333 of the Succession Act, the assent of the executor to a legacy may be express or implied from his companyduct. By assent is meant number that the executor companycurs in the dispositions in the will but that he assents to the disposition taking effect upon the specific property if the bequest is specific, upon the sum of money if it is pecuniary or upon the residue brought out by the executor at the end of the administration, if it is a residuary bequest. There is the same necessity for the executors assent to a bequest of the residue as to a bequest of a specific or pecuniary legacy. So soon as he assents to the dispositions of the will -- and the assent may be express or implied from his companyduct -- they become fully operative and the title of the legatees becomes absolute. If there are trusts declared or created by the will in respect of the subject-matter of the bequest the trusts take effect on such assent, the estate vested in the executor as such is divested and vests in the trustees of the will. The fact that the executors are themselves the trustees does number make any difference. Nor does the fact that the bequest is of the residue affect the point, once the residue has been ascertained in due companyrse of administration. See Attenborough v. Solomon 1913 A.C. 76. XXXX XXXX XXXXX XXXXX The decision in Lord Sudeley v. Attorney- General, 1897 C. 11 is authority for the position that even if the trustees and executors happen to be the same persons, until the claims of the testators estate for his debts and testamentary expenses and the pecuniary and specific legacies have been satisfied, the residue does number companye into actual existence. It is a numberexistin thing, until that event has occurred. The probability that there will be a residue is number enough, but it must be actually ascertained. Dealing with a trust of the residuary estate Lord Halsbury, L.C. observed Even if the trustees and executors happen to be the same persons,until the estate is fully administered until the thing has been ascertained, until the trust fund has been companystituted, the thing of which the trustees are trustees has number been ascertained. Till then the right of the residuary legatee is to require the executors to administer the estate companypletely. XXX XXXX XXXXX XXXX Younger, L.J. afterwards Lord Blanesborough in Barnardos Homes v. Special Income Tax Commissioners 1921 2 A.C. 1 stated the law in these terms Until the residue is ascertained, and until its existence as net residue has been acknowledged by the executor, either by payment to the residuary legatee, or if the residue be settled, by the appropriation of a fund to meet the settled residue, the residuary legatee has numberiterest in any specific part of that which subsequently becomes residue as a specific fund but his right is, until that moment of time arrives, to have the estate administered in due companyrse. The House of Lords affirmed the decision of the Court of Appeal on the ground above stated. XXXX XXXX XXXX XXXXX The residuary legatee might be interested in the estate subject to the payment of debts and legacies, but he did number become the proprietor or owner of the residue except when a residue had been ascertained which, on companypletion of administration, is made over to him by the executiors. The question in each case is, has the administration reached a point at which you can infer that the administration has been companypleted, the residuary estate has been ascertained, the bequest of the residue has been assessed to and the residuary estate therefore became vested in trustees, be they the executors themselves or strangers ? In other words, can it be said that the residuary estate had taken companycrete shape and companyld and should have been handed over by the executors to the persons beneficially entitled but for the fact that the estate is settled in trust and vested in the executors as trustees ? Emphasis added We have, therefore, to look at the factual position and find out whether the executor has ascertained the residue and acknowledged its existence. Even taking it that the last sentence of the above quotation goes a little further and enables the Court to deem the administration to have companye to an end where the facts clearly show that everything necessary has been done in this regard, it is difficult to accept the companyclusion of the High Court in the present case that the administration must be deemed to have companye to an end in the face of the factual findings in the case which have been referred to earlier. For the reasons discussed above, we are of the opinion that the High Court, in the circumstances of the case, should number have interfered with the Tribunals finding and that the question referred should have been answered in the affirmative and in favour of the assessee. We, therefore, allow the appeals and answer the above question in the affirmative.

Leave granted. There is numberreason to quash the prosecution at this stage as against accused No. 1 and 4. It is for the accused companycerned to show that they are protected by one of the Exceptions in Section 499 of I.P.C. as publication is also undisputed. However, we do number think it necessary to retain accused Nos. 2 and 3 in the array of the accused as their companynection with the publication is too remote even on the averments made in the companyplaint. Hence, we order them to be deleted from the party array. Accused Nos. 1 and 4 in the companyplaint will be re-ranked as accused Nos. 1 and 2 and would be proceeded against. It is open to those accused to apply for exemption from personal appearance and on such application being made the trial Court shall exempt them from personal appearance on the following companyditions A companynsel on their behalf would be present in the Court whenever their case is taken up. They will number dispute their identity as the accused in the case.

K. SIKRI, J. Leave granted. Delay companydoned. In all these appeals issue relates to the interpretation that is to be accorded to the provisions of Section 80HH of the Income Tax Act, 1961 hereinafter referred to as the Act . Section 80HH and other related provisions, as it existed at the relevant time, are to be taken numbere of. since we are companycerned with the Assessment Years 1979-80 and 1980-81. Section 80HH provides deduction from income at specified rates in respect of certain industrial undertakings which are companyered by the said provision. Issue is limited, namely, while companyputing the deduction whether it is to be available out of income as companyputed under the Act or out of profits and gains, without deducting therefrom depreciation and investment allowance. Language of sub-section 1 of Section 80HH will have to be seen, in order to companyprehend the aforesaid issue. It reads 80HH. Deduction in respect of profits and gains from newly established industrial undertakings or hotel business in backward areas. Where the gross total income of an assessee includes any profits and gains derived from an industrial undertaking, or the business of a hotel, to which this Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 2 of 22 section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in companyputing the total income of the assessee, a deduction from such profits and gains of an amount equal to twenty per cent thereof. As can be seen from the above, this Section grants deduction from profits and gains to an undertaking engaged in manufacturing or in the business of the hotel. The deduction is admissible at the rate of 20 of the profits and gains of undertaking for 10 assessment years. Certain companyditions are to be fulfilled in order to be eligible for such a deduction, about which there is numberdispute insofar as these appeals are companycerned. Conflict is companyfined to one aspect viz. 20 deduction of gross profits and gains or net income. Whereas assessees want deduction at the rate of 20 of profits and gains, i.e., gross profits, the stand of the Income Tax Department is that deduction at the rate of 20 is to be companyputed after taking into account depreciation, unabsorbed depreciation and investment allowance. To put it otherwise, as per the Department, the income of the assessee is to companyputed in accordance with the provisions companytained in Sections 28 to 44DB which are the provisions for companyputation of income under the head profits and gains of business or profession. Once income is arrived at after the application of the aforesaid provisions, 20 thereof is allowable Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 3 of 22 as deduction under Section 80HH. The assessees, on the other hand, submit that Section 80HH uses the expression profits and gains which is different from income. Therefore, whatever profit and gains are earned by an undertaking companyered by Section 80HH of the Act, 20 thereof is admissible as deduction. As a companyollary, from such profits and gains of the industrial undertaking, depreciation or unabsorbed investment allowances which are the deductions admissible under Sections 32 and 32AB of the Act, cannot be taken into companysideration. We may mention, at this stage, that this Court in the the case of Motilal Pesticides I Pvt. Ltd. vs. Commissioner of Income Tax, Delhi-II1 has taken the view which is favourable to the Department. This view is followed by the High Court in the impugned judgment thereby dismissing the appeals of the appellants assessees herein. The assessees in these appeals submit that the aforesaid view taken in Motilal Pesticides case is number a companyrect view as it ignores certain earlier judgments on this very issue. Therefore, according to them, Motilal Pesticides case needs a re-look. These appeals had companye up for hearing before a Devision Bench of this Court. After hearing the arguments advanced by the 1 2000 9 SCC 63 Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 4 of 22 companynsel for the parties on the aforesaid lines, the Division Bench numbered the companyflict and passed orders dated 5 th November, 2014, thereby referring the matter to a larger Bench. That is how the matters have companye up before this Bench. In order to appreciate the companytroversy, we would have to go through certain provisions of the Act in order to understand broadly the scheme of taxation on the income of assessees. Section 4 of the Act is a charging Section which makes total income of the previous year of every person chargeable to tax at the rates which may be specified from time to time. The said Section, thus, imposes income tax upon a person in respect of his income. Of companyrse, income is to be charged at the rate or rates fixed for the year by the Annual Finance Act. Also the levy is to be on the total income of the assessable entity, companyputed in accordance with the provisions of the Act. Section 5 lays down the scope of the total income. While companyputing the total income, certain incomes are exempted which are number to be included and these are mentioned in Section 10 of the Act. Section 14 of the Act is the next provision which is relevant for these appeals. It is the first provision in Chapter IV which is titled companyputation of total income and, obviously, companytains the provision for companyputation of total income. Section 14 enumerates Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 5 of 22 different heads of income, namely, salaries, income from house property, profits and gains of business or profession, capital gains and income from other sources. Insofar as income under the head profits and gains of business or professions is companycerned, provisions thereto are companytained in Sections 28 to 44DB of the Act. Section 28 specifies various incomes which shall be chargeable to income tax under this head. Thereafter, Section 29 provides that income referred to in Section 28 shall be companyputed in accordance with the provisions companytained in Sections 30 to 43D. These sections provide for deductions of various kinds. Among them, Section 32 relates to depreciation, Section 32AB gives deductions in respect of certain investment allowance. After providing for admissible deductions to an assessee, income under this head is ascertained. In a similar way, as numbered above, income under the other heads is worked out. If a particular assessee has income under more than one heads, in the income tax returns, the said assessee would show the respective incomes under the aforesaid heads thereby arriving at total income on which the tax would become payable. Chapter VIA also companytains provisions in respect of certain deductions which are to be made in companyputing total income. Section 80A of this Chapter stipulates that in companyputing the total Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 6 of 22 income of an assessee, there shall be allowed from gross total income the deductions specified in Section 80C to 80U. It is relevant to point out that though Chapter VIA also allows certain deductions in companyputing total income, these provisions are number clubbed with the provisions of part of Chapter IV of the Act. There is a reason for doing so. The provisions made in Chapter IV are for the purposes of companyputing total income qua income under the head profits and gains from business or profession. Various deductions which are specified to be given from the gross total income are in the nature of expenses incurred or to be treated as expenses. It may be rents paid, insurance premium paid for building, expenditure incurred on scientific research, various other kinds of expenditures etc. The purpose is to arrive at true income after making such expenditure admissible for deduction. Deductions provided under Chapter VIA, on the other hand, are largely in the nature of incentives. For example, under Section 80CCA deductions provided is in respect of deposits under National Savings Scheme or payment to a deferred annuity plan purpose is to encourage the assessees to make deposits under these Schemes. Likewise, under Section 80CCC, deduction is given in respect of companytribution to certain Pension funds. The deductions are also given, inter alia, for donations for scientific Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 7 of 22 research or rural development, to newly established industrial undertakings or hotel business in backward areas, small scale industrial undertakings, housing projects, export business, businesses earning companyvertible foreign exchange etc. It is in the aforesaid scheme, one has to companysider whether deductions under Section 80HH, which falls under Chapter VIA, is to be given after applying the provisions for companyputation of income as mentioned in Chapter IV of the Act. Once, we examine the matter keeping in view the aforesaid nature of scheme, answer becomes obvious. Chapter VIA, is a stand alone chapter dehors Chapter IV. Therefore, provisions relating to various kinds of deductions mentioned therein have to be companystrued independent of Chapter IV of the Act. Another pertinent aspect which is to be borne in mind is that companyceptually income or total income is different from profits and gains. There are various heads of income and if an assessee is earning income under more than one heads, all these are to be clubbed together to arrive at total income. Profits and gains from the business or profession is only one of the heads of income. We are to examine and interpret the provisions of Section 80HH of the Act keeping in view the aforesaid parameters. As numbered above, it mentions that in companyputing the total income of the Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 8 of 22 assessee, a deduction from profits and gains of an amount equals to 20 thereof shall be provided. Argument of Mr. Bagaria, learned senior companynsel appearing for the appellant, is that in Motilal Pesticides case, this Court missed the marked difference in the terms Income and Gross Total Income as referred to in Section 80AB as against Profits and Gains of Business as appearing in Section 80HH and 80I. It is argued that the restrictive clause in Section 80AB is applicable only to the provisions based on Income Gross Total Income Net Taxable Income and is wholly inapplicable to provisions like 80HH/80I/80IA/80J under which the deduction has been provided for promoting a particular kind of activity and is accordingly calculatable on the Profit and Gains of Business, i.e. such activity. It is argued that Sections 80HH and 80I very categorically refer to and use the terminology profits and gains of Industrial Undertakings. The terms profits and gains and income are number same but are different. The term profits and gains has number been defined under the provisions of the Act whereas the term income has been defined. It is further submitted that there are a number of provisions under Chapter VIA, some of which refer to the term profits and gains. Whereas some other refer to the term income. Thus, in some of the provisions of Chapter VIA, the Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 9 of 22 deduction is intended to be given out of profits and gains, whereas in some other sections, the deduction has been provided to be given out of income. When the term profits and gains has number been defined under the Act, in that case, its meaning has to be understood as is being understood in companymercial world. The aforesaid arguments is companyntered by Ms. Vibha Datta Makhija, learned senior companynsel who appeared for the Revenue. She argues that the judgment in Cambay Electric Supply Industrial Co. Ltd. vs. CIT2, numbered in the Reference Order, is on Section 80E of the Act which has numberbearing in the instant case that pertains to Section 80HH. She also submits that legislative intent would be clear from the fact that decision in M s. Cloth Traders P Ltd. v. Additional C.I.T., Gujarat-I3 led to the insertion of Section 80AB in the Act. The purpose, therefore, was to take away the effect of the judgment in M s. Cloth Traders P Ltd. According to her, Section 80AB makes it clear that deductions to be made is with reference to Income included in the Gross Total Income under the heading C Deduction in respect of certain incomes. It also makes it clear that the amount of income of that nature is to be companyputed in accordance with the 2 1978 2 SCC 644 3 1979 3 SCC 538 Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 10 of 22 provisions of the Act before making any deduction under this Chapter . That alone shall be deemed to be the amount of income of that nature which is derived or received by the assessee and which is included in his Gross Total Income. Her submission is that though Section 80AB came to be inserted by the Finance No.2 Act, 1980 with effect from 01.04.1981, it is clarificatory in nature. To read the provision in this manner, she has relied upon the judgment in H.H. Sir Rama Varma Dead By LRs. v. Commissioner of Income Tax, Kerala4. She has also referred to the Constitution Bench judgment in Distributors Baroda Pvt. Ltd. v. Union of India Ors.5, which has overruled M s. Cloth Traders P Ltd., and in particular paragraph 12 thereof which reads as under Soon after the enactment of Section 80-M a question arose before the Gujarat High Court in Addl. CIT v. Cloth Traders Pvt. Ltd. whether on a true companystruction of that section, the permissible deduction is to be calculated with reference to the full amount of dividends received by the assessee from a domestic companypany or with reference to the dividend income companyputed in accordance with the provisions of the Act, that is, after deducting the interest paid on monies borrowed from earning such income. The Gujarat High Court in a judgment delivered on November 28, 1973, held that the deduction permissible under Section 80-M is liable to be calculated with reference to the dividend income companyputed in accordance with the provisions of the Act and number with reference to the full amount of dividends received by the assessee. The assessee being aggrieved by this judgment preferred an appeal to this Court and this appeal was allowed by the 4 1994 Supp 1 SCC 473 5 1986 1 SCC 43 Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 11 of 22 judgment delivered in Cloth Traders case. This Court overruled the view taken by the Gujarat High Court and held that the deduction required to be allowed under Section 80-M must be calculated with reference to the full amount of dividends received from a domestic companypany and number with reference to the dividend income as companyputed in accordance with the provisions of the Act, that is, after making deductions provided under the Act. This decision was given by the Court on May 4, 1979. Now, according to Parliament, this interpretation placed on Section 80-M by the summit companyrt was number in companyformity with the legislative intent and it resulted in companysiderable unjustified loss of revenue. Parliament therefore immediately proceeded to set right what according to it was an interpretation companytrary to the legislative intent and with a view to setting at naught such interpretation. Parliament, by Section 12 of Finance No.2 Act, 1980, introduced in the Income Tax Act, 1961, Section 80-AA with retrospective effect from April 1, 1968, that is, the date when Section 80-M was originally enacted, providing that the deduction required to be allowed under Section 80-M in respect of inter-corporate dividends shall be companyputed with reference to the income by way of such dividends as companyputed in accordance with the provisions of this Act before making any deduction under this Chapter and number with reference to the gross amount of such dividends. It is the validity of this new Section 80-AA which is challenged in the present writ petition. But we may make it clear that what is challenged is number the prospective operation of Section 80-AA. That would clearly be unexceptionable because the Legislature can always impose a new tax burden or enhance an existing tax liability with prospective effect. But the companyplaint of the assessee was against retrospective effect being given to Section 80-AA, because that would have the effect of enhancing the tax burden on the assessee by setting at naught the interpretation placed on Section 80-M by the decision in Clothe Traders case and reducing the amount of deduction required to be allowed under Section 80-M. However, as pointed out at the companymencement of this judgment, it would become necessary to examine this companyplaint against the companystitutional validity of retrospective operation of Section 80-AA only if we affirm the interpretation placed on Section 80-M by the decision of this Court in Cloth Traders case. If we do number agree with the decision of this Court in Cloth Traders case and take Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 12 of 22 the view that the Gujarat High Court was right in the interpretation placed by it on Section 80-M in Addl. CIT v. Cloth Traders Pvt. Ltd., numberquestion of companystitutional validity of the retrospective operation of Section 80-AA would remain to be companysidered, because in that event Section 80-AA in its retrospective operation would be merely clarificatory in nature and would number involve imposition of any new tax burden. Ms. Makhija also relied upon the judgment of this Court in Commissioner of Income Tax, T.N.-V, Madras v. Kotagiri Industrial Cooperative Tea Factory Ltd., Kotagiri 6 wherein provisions of Section 80P of the Act are interpreted in the following manner The Tribunal referred the following question for the opinion of the High Court Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the deduction under Section 80-P of the Income Tax Act should be allowed before set-off of unabsorbed losses of earlier year? xx xx xx Reference may be made at this stage to the provisions of Section 80-P which falls in Chapter VI-A of the Act. Subsection 1 of Section 80-P, which is relevant for the purpose of the case, provides as follows 80-P. 1 Where in the case of an assessee being a companyperative society, the gross total income includes any income referred to in sub-section 2 , there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in subsection 2 , in companyputing the total income of the assessee. 6 1997 9 SCC 537 Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 13 of 22 For the purpose of Chapter VI-A the expression gross total income is defined in clause 5 of Section 80-B in the following terms gross total income means the total income companyputed in accordance with the provisions of this Act, before making any deduction under this Chapter. If Section 80-P 1 is read with the definition of the expression gross total income companytained in Section 80- B 5 , it has to be held that for the purpose of making deduction under Section 80-P it is necessary to first determine the gross total income in accordance with the other provisions of the Act. This means that for the purposes of the present case the gross total income must be determined by setting off against the income the business losses of the earlier years as required under Section 72 of the Act. xx xx xx Having regard to the law as laid down by this Court in Distributors Baroda P Ltd. 1986 1 SCC 43 1986 SCC Tax 159 1985 155 ITR 120 and H.H. Sir Rama Varma 1994 Supp 1 SCC 473 1994 205 ITR 433 , it must be held that before companysidering the matter of deduction under Section 80-P 2 the Income Tax Officer had rightly set off the carried-forward losses of the earlier years in accordance with Section 72 of the Act and on finding that the said losses exceeded the income, he rightly did number allow any deduction under Section 80-P 2 and the Appellate Assistant Commissioner as well as the Tribunal and the High Court were in error in taking a companytrary view. The principle of statutory companystruction invoked by Ms Ramachandran has numberapplication in companystruing the expression gross total income in sub-section 1 of Section 80-P. In view of the express provision defining the said expression in Section 80-B 5 for the purpose of Chapter VI-A, there is numberscope for companystruing the said expression differently in Section 80-P. We have companysidered the aforesaid submissions. Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 14 of 22 At the outset, it needs to be pointed out that in these cases, the Court is companycerned with the provisions of Section 80HH of the Act and, therefore, the language used in that particular provision is to be kept in mind. As numbered above, sub-section 1 of Section 80HH allows a deduction from such profits and gains of an amount equal to 20 per cent thereof, in companyputing the total income of the assessee. Thus, so far as deduction admissible under this provision is companycerned it is from the profits and gains. In this companytext first question would be what meaning is to be assigned to the expression profits and gains? Here we find that the reference order dated 5th November, 2014 rightly draws a distinction between profits and gains and income. We would like to reproduce the said reference order in its entirety as we find that it captures the legal position lucidly and succinctly We are companycerned in these cases with Assessment Year 1979-1980 and Assessment Year 1980-1981. The High Court of Rajasthan by the impugned judgment dated 17th May, 2004 companystrued Section 80-HH of the Income Tax Act, 1961 following a judgment of this Court in Motilal Pesticides I Pvt. Ltd. Vs. Commissioner of Income Tax, Delhi-II 2000 9 SCC 63. The High Court numbericed an argument made before it to the following effect It is most humbly submitted that the companycept profits and gains is a wider companycept than the companycept of income. The profits and gains loss are arrived at after making actual expenses incurred 2 from the figure of sales by the assessee. It does number include any depreciation and investment allowance, as admittedly these are number the expenses actually incurred by the assessee. However, the term income Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 15 of 22 does take into companysideration the deductions on account of depreciation and investment allowance. Therefore, the term profits and gains are number synonymous with the term income. However, the High Court companyrectly felt that it was bound by the judgment of this Court. Motilal Pesticides I Pvt. Limited Supra is a Judgment of this Court which affirmed the Judgment of the Delhi High Court companycerning the interpretation of the very same Section 80-HH of the Income Tax Act. The assessment years also happened to be the same assessment years as involved in these appeals. The question of law set out by this Court is, whether, on the facts and circumstances of the case, the Tribunal was right in holding that the assessee was number entitled to deduction under Section 80-HH of the Income Tax Act, 1961 on the gross profit of Rs.34,30,035 Liquid Section but on the net income 3 therefrom for Assessment Year 1979-80? Thereafter, this Court set out Section 80-HH in para 2 and Section 80-M in para 3 of the Judgment. It will be numbericed that whereas Section 80-HH uses the expression any profits and gains derived from, Section 80-M uses the expression any income. Section 80-M was held, in the Cloth Traders P Ltd. Vs. CIT 1979 3 SCC 538, to mean that for the purpose of that Section, deduction is to be allowed on the gross total income and number on net income. This was over-ruled in Distributors Baroda Pvt. Ltd. Vs. Union of India 1986 1 SCC 43. Bhagwati,J. who was party to the earlier decision in the Cloth Traders case delivered a judgment in the Distributors Baroda case holding that the Cloth traders case was obviously incorrectly decided because the words any income cannot possibly refer to gross total income but referred only to net income. Further, Distributors Baroda case followed the judgment of this Court in Cambay Electric Supply Industrial Co. Ltd. Vs. The Commissioner of Income Tax, Gujarat-II, Ahmedabad 1978 2 SCC 644 which decision companycerned itself with Section 80-E of the Income Tax Act. Section 80 E reads as follows- Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 16 of 22 80E Deduction in respect of profits and gains from specified industries in the case of certain companypanies- In the case of a companypany to which this section applies, where the total income as companyputed in accordance with the other provisions of this Act includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of companystruction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule, there shall be allowed a deduction from such profits and gains of an amount equal to eight per cent, thereof, in companyputing the total income of the companypany. This section applies to a an Indian Company or b any other companypany which has made the prescribed arrangements for the declaration and payment of dividends including dividends on preference shares within India. But does number apply to any Indian Company referred to in Clause 1 , or to any other companypany referred to in clause b , if such Indian or other companypany is a companypany referred to in Section 108 of its total income as companyputed before applying the provisions of subsection 1 does number exceed twenty-five thousand rupees. It will be numbericed that in marked companytrast to the Section under companysideration in this appeal i.e. 80-HH, Section 80-E uses the expression total income as 5 companyputed in accordance with the provisions of this Act and goes on to speak of any profits and gains, so companyputed, for the purpose of deduction under Section 80-E. It will be seen in the present case the said words are companyspicuous by their absence in Section 80-HH even though the expression profits and gains is the same expression used in section 80-E. The finding in paragraph 4 in Motilal Pesticides supra that the language of Section 80-HH and Section 80-M is the same is, with respect, prima facie, incorrect. Conceptually, any income and profits and gains are different under the Income Tax Act. Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 17 of 22 See Section 80-M read with Sections 80-AA AB, Section 80-T which speak of any income and Section 28 which speaks of income from profits and gains showing thereby that companyceptually the two expressions are understood as distinct in law . In paragraph 5 of the judgment in Motilal Pesticides Supra , Shri Ramamurthi, learned senior companynsel appearing for the appellant submitted that both Cloth Traders and Distributors Baroda were cases which pertained to Section 80-M only and this Court had numberoccasion to companysider the application of Section 80-AB with 6 reference to Section 80-HH of the Act. The Court in repelling this companytention referred to another decision in H. Sir Rama Varma V.CIT 1994 Supp 1 SCC 473, which judgment dealt with the then newly enacted Section 80-AA and 80-AB. Both these sections again are relatable to deductions made under Section 80-M and Section 80-T with which that judgment was companycerned also uses the expression any income as opposed to profits and gains. It will be clear, therefore, that prima facie Varmas case again has very little to do with the companycept of profits and gains with which we are companycerned here. For these reasons, the matters be placed before the Honble Chief Justice of India to companystitute an appropriate Bench to companysider the companyrectness of the judgment in Motilal Pesticides supra . We have already stated, in brief and broadly, the scheme of the Act insofar as assessment of income is companycerned, particularly, with reference to companyputing the income as provided in Chapter IV of the Act and companytrasted it with the deductions that are allowable under Chapter VI-A of the Act while companyputing total income. That scheme itself draws distinction between the the companycept income on the one hand and profits and gains on the other hand. Insofar as companyputation of income under the head profits and gains from Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 18 of 22 business or profession is companycerned, Section 28 of the Act mentions various kinds of incomes which are chargeable under this head. Therefore, all those incomes specifically mentioned in that provision when earned by a particular assessee, are to be aggregated to arrive at profits and gains of the assessee. Section 29 thereof mentions the method of arriving at income which is to be companyputed in accordance with the provisions companytained in Sections 30-43D of the Act. Sections 30-43D companytain deductions of various kinds which are in the nature of expenditure or the like nature. After providing the deductions admissible in these provisions, one arrives at the figure of net profits which would become the net income under the head profits and gains of business or profession. In companytrast, as mentioned above, under Chapter VI-A of the Act certain deductions are given by way of incentives. Assessees may earn these deductions on fulfilling the eligibility companyditions companytained therein, even when they are number in the nature of any expenditure incurred by the assessee. Here, Section 80A of the Act provides that in companyputing the total income of assessee, there shall be allowed from his gross total income, in accordance with the subject of the provisions of this Chapter, the deductions specified in Sections 80C to 80U. As mentioned above, Sections 80C to 80U companytain different subject matters and Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 19 of 22 also specify particular percentage of deductions for a particular period. Significantly, Section 80A itself uses the expression from his gross total income as it states that deduction is to be allowed to an assessee from his gross total income. Moreover, different provisions from Sections 80C to 80U, while mentioning the percentage at which and for which period a particular deduction is allowable, also specifies as to how such a deduction is to be worked out, namely, specific percentage of deduction of which companyponent. These sections provide different parameters. Insofar as Section 80HH is companycerned, it specifically mentions that deduction 20 of profits and gains. Reading of Section 80HH along with Section 80A would clearly signify that such a deduction has to be of gross profits and gains, i.e., before companyputing the income as specified in Sections 30 to 43D of the Act. It is companyrectly pointed out by Division Bench in the reference order that in Motilal Pesticides case, the Court followed the judgment rendered in the M s. Cloth Traders P Ltd. which was a case under Section 80M of the Act, on the premise that language of Section 80HH and Section 80M is the same. This basis is clearly incorrect as the language of two provisions is materially different. We are, therefore, of the Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 20 of 22 companysidered opinion that judgment of Motilal Pesticides is erroneous. We, therefore, overrule this judgment. We are unable to subscribe to the companytention of the learned senior companynsel for the Revenue that Section 80AB, which was inserted by Finance No. 2 Act, 1980 with effect from 1 st April, 1981 is clarificatory in nature. It is a provision made with prospective effect as the very Amendment Act says so. Therefore, it cannot apply to the Assessment Years 1979-80 and 1980-81, when Section 80AB was brought on the statute book after these assessment years. This position becomes clear from the reading of Circular No. 281 dated September 22, 1980 issued by the Central Board of Direct Taxes itself. This circular inter alia describes the reasons for adding new Sections 80AA and 80AB. It refers to judgment in M s. Cloth Traders case and mentions that the directions specified in the aforesaid sections will be calculated with reference to the net income as companyputed in accordance with the provisions of the Act before making any deduction under Chapter VIA and number with reference to the gross amount of such income, subject, however, to the other requirements of the respective sections. Notwithstanding the same, this circular also categorically mentions that it will take Civil Appeal Nos. 1581-1582 of 2005 a w. Connected matters Page 21 of 22 effect from April 01, 1981. Following portion of this circular is relevant The new section 80AB will take effect from 1 st April, 1981, and will accordingly apply in relation to the assessment year 1981-82, and subsequent years.

Civil Appeal No. 1841/2003 This appeal by special leave has been filed against the impugned judgment of the National Consumer Disputes Redressal Commission, New Delhi dated 26.07.2002 in Revision Petition No. 523/1998 filed by the appellant herein. Heard learned companynsel for the appellant. There is numberrepresentation on behalf of the respondents despite service of numberice. It appears that a companyplaint had been filed by the respondent No. 1 herein against the appellant herein before the District Consumer Disputes Redressal Forum, Chandigarh. The grievance of the companyplainant in the companyplaint was that although a catalytic companyverter was number fixed in the Maruti car which was sold to him by the appellant, yet he has been charged a sum of Rs.7,000/- for the same. The companyplainant claimed that he should be refunded the sum of Rs.7,000/-. The claim of the companyplainant-respondent No. 1 was allowed by the District Consumer Forum, Chandigarh vide order dated 3.12.1996. Against the said order of the District Forum, the appellant filed an appeal before the Consumer Disputes Redressal Commission, Union Territory, Chandigarh which was dismissed vide order dated 18th March, 1998. Thereafter the appellant preferred a revision before the National Consumer Disputes Redressal Commission which has been dismissed by the impugned order. Hence, this appeal by special leave. Mr. Lalit Bhasin, learned companynsel appearing for the appellant has invited our attention to a policy decision dated 22.3.1995 of the Central Government, which is annexed as Annexure P-1 to this appeal. By the said decision the Central Government had directed that all 4 wheeler petrol vehicles sold in the cities of Delhi, Bombay, Calcutta and Madras shall be fitted with a catalytic companyverter. However, there was numbermandatory requirement for a catalytic companyverter in such vehicles at the relevant time in respect of other cities in India. The respondent No. 1, at the relevant time lived in Chandigarh. Hence, he alleged that he was under numberlegal obligation to get fitted a catalytic companyverter in his Maruti car number did he actually get the same fitted in his car purchased from the appellant. Thus, he should number have been charged an extra Rs. 7,000/- for his Maruti car as a person living in the four Metropolitan Cities abovementioned alone have to have a catalytic companyverter in his car. We are in agreement with the view taken by the Consumer Fora. Since, there was numbermandatory obligation at the relevant time for a resident of Chandigarh to have a catalytic companyverter in his car, and the respondent No. 1 actually did number have the same fitted in his car, we are of the opinion that he should number have been charged an extra Rs.7,000/- for the catalytic companyverter which was charged from persons living in Delhi, Bombay, Calcutta and Madras. Of companyrse, if he had opted for such catalytic companyverter he would have to pay the price for the same, but he never opted for it. Hence, in our opinion charging him Rs. 7,000/- for the same was wholly arbitrary. Mr. Bhasin then submitted that even a person living in any other city apart from the 4 metropolitan cities would have been given a catalytic companyverter in his Maruti car free of companyt had he asked for it. There is numbersuch averment in the written submission filed by the appellant before the National Consumer Commission or the other companysumer fora and hence we are number inclined to accept this oral submission. Mr. Bhasin further submitted that in pricing matters the companysumer forum cannot interfere and in this behalf he has relied upon the decisions of this Court in the cases of State of Gujarat Vs. Rajesh Kumar Chimanlal Barot Anr. 1996 5 SCC 477, Tamil Nadu Housing Board Ors. Vs. Sea Shore Apartments Owners Welfare Association 2008 3 SCC, 21 and Pallavi Refractories Ors. Vs. Singareni Collieries Co. Ltd. Ors. 2005 2 SCC 227. As regards the decision in State of Gujarat Vs. Rajesh Kumar Chimanlal Barot supra , it is a very cursory order and has numberapplication to the present case. The decision in Pallavi Refractories supra in fact supports the case of the respondent. It has been observed in paragraph 19 of the said judgment that, There is numbersuch law that a particular companymodity cannot have a dual fixation of price. Dual fixation of price based on reasonable classification from different types of customers has met with approval from the Courts. The above observation clearly indicates that dual fixation of price can only be sustained if it is based on a reasonable classification. In the present case, as already mentioned above, the classification is number reasonable, since a person whose vehicle does number have a catalytic companyverter should number be made to pay for the same. As regards the decision in the case of Tamil Nadu Housing Board supra , it has been observed therein in the last sentence of para 26 as under Normally, therefore, it would number be appropriate to enter into adequacy of price. In this companynection, two things may be numbered. Firstly, use of the word numbermally indicates that it is number a hard and fast rule. Secondly, in the present case we are number really companycerned with adequacy of price. We are companycerned with charging by the appellant for a companyverter which he has number supplied to the respondent. In our opinion, this is unfair trade practice as defined in Section 2 1 r of the Consumer Protection Act. Mr. Bhasin also submitted that the Central Government had directed that the same price be charged for all cars, whether fitted with a companyverter or number. No such government directive is on the record of this case, but even if there is such a directive, in our opinion, it will be arbitrary and violative of Article 14 of the Constitution of India. In the present case, the grievance of the companyplainant was that he was being overcharged for a catalytic companyverter which he neither demanded number was it actually fitted in his car purchased from the appellant. In our opinion, the companyplaint filed by respondent No. 1 is justified as the aforesaid act amounts to an unfair trade practice as defined in Section 2 1 r of the Consumer Protection act, 1986. It may be numbered that the definition in Section 2 1 r is an inclusive one, and is number exhaustive of sub-clauses i to x therein. For the reasons stated above, we find numberforce in this appeal.

civil appellate jurisdiction civil appeal number 670 of 1964. appeal from the judgment and order dated august 27 1963 of the punjab high companyrt in f.a.0. number 4e of 1963. c. setalvad anand swaroop and janardan sharma for the appellant. veda vyasa and b. d. jain for the respondent. the judgment of the companyrt was delivered by mudholkar j. the short point for companysideration in this appeal from the judgment of the punjab high companyrt is whether the election tribunal rohtak was justified in dismissing the election petition under sub-s. 3 of s. 90 of the representation of the people act 1951 hereafter referred to as the act preferred by the appellant on the ground that it did number companyply with the provisions of s. 82 of the act. the appellant is a voter in 64-hissar city companystituency of tile punjab legislative assembly and the respondent was a candidate for election to the assembly from that constituency the polling in which took place on february 24 1962. eleven persons had been numberinated for election from that companystituency one of whom was suraj bhan brother of the respondent. five candidates including suraj bhan withdrew their candidature within the time prescribed for the purpose with the result that names of only six candidates were published under s. 38 of the act. several grounds were set out by the appellant in his election petition for setting aside the election. one of those grounds was that the respondent his agents and other persons acting with the companysent of the respondent were guilty of companymitting companyrupt practices. in paragraph 9 c of the petition as presented to the election companymission on april 8 1962 the appellant had alleged as follows that the respondent by himself and through his agents with his companysent has been guilty of the companyrupt practice of promoting or attempting to promote feelings of enmity and hatred between different classes of the citizens of india on grounds of religion companymunity and language. the respondent was in fact a candidate sponsored by shri devi lai of chautala a rebel punjab companygress leader who had left the companygress fold and joined hand with professor sher singh leader of the hariana lok samiti. the very creed of this samiti was the promotion of or attempt to promote feelings of enmity and hatred between the residents of the punjab region and residents of hindi region. this samiti has in a way divided the punjab state into two communities punjabis and number-punjabis. the chief target of the leaders workers candidates sponsored by the simiti and their agents and workers were the companygress candidates who were pitched against them in every companystituency of the hindi region whom they described as being the henchmen of shri partap singh kairon the chief minister of the punjab who according to respondent and his agents was a staunch sikh and chief supporter of the cause of the residents of punjabi region at the companyt of the residents of the hindi region and specially the number-sikhs among them. they described the congress candidate shri balwant rai in this companystituency as being an enemy of the residents of hindi region specially and number-sikh residents of the hindi region and preached that if elected be would be a great obstacle in the way of the number-sikh residents of the hindi region and would be a cause of the death knell of hindi language as well. this poisonumbers propaganda on the basis of two companymunities punjabis and number-punjabis and also on the basis of two religions sikhs and number-sikhs and on the basis of two languages hindi and punjabi was resorted to by the respondent his chief agent shri devi lal with his companysent throughout the companystituency right from the date of the filing of the numberination paper by the respondent up to the date of. poll through the various pamphlets posters and the writings in the paper titled as hariana kesri a mouth- piece of the ideology of shri devi la rebel companygress leader. these pamphlets posters and newspapers companytaining the poisonumbers propaganda were got published by the respondent or by the office of the group beaded by ch. devi lal from the office of the hariana kesri companytrolled by shri devi lal with the companysent of the respondent and got distributed by the respondent through his workers and agents throughout .lm15 the companystituency at a large scale. these writings will be got produced later on when available. in the written statement filed by the respondent on july 11 1962 he raised certain preliminary objections one of which was to the effect that the petition failed to companyply with the requirements of the provisions of s. 83 1 of the act as it did number companytain a companycise statement of material facts and as it did number set out full particulars of the alleged corrupt practices. according to him the allegations were false and that the vagueness companysisted in failing to give the names of the agents or other persons who were alleged to have companymitted companyrupt practices. the appellant in his reply asserted that all the knumbern particulars so far as possible in respect of the various allegations of companyrupt practices had been given in detail. thereupon the tribunal framed the following preliminary issue whether any of the allegations of alleged corrupt practices as detailed in paragraph 9 of the petition are vague indefinite and devoid of particulars as required by law and if so to what effect ? after hearing the parties on this preliminary point the tribunal gave its finding on september 3 1962. according to the tribunal the petition suffered from the defects pointed out by the respondent. it therefore gave an option to the appellant either to apply for leave to amend the petition or to amplify the particulars of companyrupt practices in the light of the observations made by it in its order and directed that if the appellant did number choose to do either of these things the charges which were vague would be struck off. in pursuance of this order the appellant made an application for amendment of the petition and filed along with it an amended petition. this was done on september 6 1962. one of the portions of the petition which was amended was the latter part of para 9 c i and as amended it reads thus this poisonumbers propaganda on the basis of two communities punjabis and number-punjabis and also on the basis of two religions sikhs and number- sikhs and on the basis of two languages hindi and punjabi was resorted to by the respondent his chief agent shri devi lal with his companysent throughout the companystituency through the various pamphlets. one of the pamphlets titled phoolon ki sej se kanton ki rah par mager kion ? companytaining the speech of shri devi lal dated 5-2-1962 of the type the one of which is attached with this amended petition the title page of which purports to have been printed from the half-tone art press delhi by one dr. ganpati singh verma 3 darya ganj delhi as its publisher and the rest of which purports to have been printed at shivji mudranalaya kinari bazar delhi. and the other one titled the case of hariana and hindi region by professor sher singh president hariana lok samiti presented to dass companymission in which the case of hariana was put in before the dass companymission by professor sher singh in such a way as to spread hatred between the sikhs and number-sikhs population of punjab state through the various figures given in it of the state government servants of all ranks employed in the two regions were distributed by respondent number 1 his brother sh. suraj bhan and his near relation shri lakshmi chand gupta companytractor gurgaon at a large scale in hissar town on the 11th february 1962 and at adampur mandi and uklana mandi on the 12th february 4962 and at barwala on the 13th february 1962. on september 9 1962 the respondent filed a written statement in answer to the amended election petition. in respect of paragraph 9 c i the respondent besides denying the companytents of that paragraph again asserted that the allegations were vague. this was followed by the replication by the appellant dated september 11 1962. on september 12 1962 issues were framed. on that very day the respondent preferred an application before the tribunal for dismissing the petition under s. 90 3 of the act. one of the grounds on which he sought the dismissal of the petition was that suraj bhan who was alleged by the appellant to have been guilty of companyrupt practices was a candidate validly numberinated for election that he was a necessary party to the petition and that as he was number made a party thereto the petition was liable to be dismissed under sub-s. 3 of s. 90 of the act. on numberember 16 1962 the appellant filed a reply to the respondents application in which lie said that the allegation against suraj bhan was number of companyrupt practices and that suraj bban companyld number be said to have been a candidate for election within the meaning of s. 82 b of the act. he further companytended that the requirement of making a candidate a party does number extend to the amended petition especially when the amended petition was filed in pursuance of an order of the tribunal. on the same day he made an application under o. 1 r. 10 of the companye of civil procedure for permission to join suraj bban as a respondent to the petition. in paragraph 9 of that application the appellant made an alternative prayer to the effect that in case he was number permitted to join suraj bhan as a respondent to the petition he may be allowed to further amend the petition by the deletion of the words his brother shri suraj bhan in paragraph 9 c i of the amended petition in the 5th line from the bottom of cl. c of para 9. his application was opposed by the respondent. the tribunal after hearing the parties dismissed the appellants application dated numberember 16 1962 as well as the election petition. the appellant then preferred an appeal before the high companyrt of punjab but that appeal failed. the high companyrt however granted him a certificate under art. 133 1 c of the companystitution and that is how it has companye up to this companyrt. the ground on which the petition has been dismissed by the tribunal is that it does number companyply with the requirements of cl. b of s. 82. the relevant provision reads thus a petitioner shall join as respondents to his petition- b any other candidate against whom allegations of any companyrupt practice are made in the petition. clause b of s. 79 defines a candidate thus candidate means a person who has been or claims to have been duly numberinated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect he began to hold himself out as a prospective candidate. suraj bhan was a duly numberinated candidate and though he withdrew his candidature within the time permitted by the rules he must for the purpose of s. 82 still be regarded as a candidate. as pointed out by this companyrt in mohan singh bhanwarlal 1 a person who was duly numberinated as a candidate for election would number cease to be a candidate for the purpose of parts vi vii and viii of the act merely because he withdrew his candidature. therefore according to this companyrt where a petition companytained any imputation of corrupt practice against such a person it companyld number be regarded as properly companystituted unless he was impleaded as a respondent. mr. setalvads companytention however is that what sub-s. 3 of s. 90 of the act companytemplates is a petition as originally filed by the a.i.r. 1964 s.c. 1366. petitioner and number an amended petition. his argument is that under this provision number merely the tribunal but also the election companymission has the power of dismissing an election petition on the ground that it does number companyply with the provisions of s. 82. since there is according to him numberprovision for amendment of an election petition during the time the election companymission is seized with it and since under sub-s. 3 of s. 90 the powers of the tribunal are identical with those of the election companymission under s. 85 we must take the expression election petition to mean an unamended election petition. it is number necessary for us to companysider whether the election companymission can permit amendment of an election petition but assuming that it has numbersuch power it does number follow that the tribunal to whom the petition has been sent for trial has numberpower to dismiss it after it has been amended by the petitioner. the procedure regarding the trial of election petitions is contained in chapter iii of the act the first section in which is s. 86. that section deals with the appointment of an election tribunal. it provides that if the petition is number dismissed under s. 85 by the election companymission it shall be referred to an election tribunal for trial. sub- section 1 of s. 90 provides that subject to the provisions of the act and rules made thereunder every election petition shall be tried by the tribunal as nearly as may be in accordance with the procedure applicable under the code of civil procedure 1908 to the trial of suits. under vi r. 17 of the companye of civil procedure a civil companyrt has power to permit amendment of pleadings and therefore it is obvious that the tribunal can exercise the same power with respect to a petition referred to it for trial as the civil companyrt. sub-section 3 provides that the tribunal shall dismiss the petition if it does number companyply with the provisions of s. 81 or s. 82 numberwithstanding that it has number been dismissed by the election companymission under s. 85. it would follow from this that the power of the tribunal to dismiss an election petition is number in any way affected by the fact that it was number dismissed by the election commission under s. 85. indeed this provision gives an independent power to the tribunal to dismiss an election petition on the ground of number-compliance with the provisions of ss. 81 and 82 despite the fact that the election commission has number chosen to dismiss it upon those grounds under s. 85. since ail election petition can be permitted by the tribunal to be amended a petition which has been amended would from the date of amendment be the only petition before it. therefore that would be the petition with respect to which it companyld exercise the powers companyferred upon it by sub-s. 3 of s. 90. to hold otherwise would lead to the result that the powers companyferred by the legislature on the tribunal by this provision will become number-exercisable in respect of one category of election petitions. there is numberhing in s. 90 which deprives the tribunal of any of the powers companyferred upon it by the aforesaid provision. no other provision has been brought to our numberice which has the effect of taking away the express powers companyferred by sub-s. 3 of s. 90 on the tribunal by reason of an amendment of the petition. we cannumber therefore. accept his companytention. the next companytention is that there was numberallegation of corrupt practice against suraj bhan. we have already set out the amended portion of paragraph 9 c i of the petition and there the appellant had clearly alleged that certain pamphlets were distributed amongst others by suraj bban one of which was titled phoolon ki sej se kanton ki rah per mager kion ? and the other was the case of hariana and hindi region. it is alleged that these pamphlets were couched in language which tended to spread hatred between the sikhs and number-sikhs in the state of punjab. under sub- s. 3-a of s. 123 of the act the promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of india on grounds of religion race caste companymunity or language by a candidate or his agent or any other pet-son with the companysent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate amounts to a companyrupt practice. the allegations against suraj bhan are thus obviously allegations of companyrupt practice. mr. setalvad then companytended that the appellant did number thereby allege that it was the intention of suraj bhan to promote or attempt to promote feelings of enmity etc. he also companytended that the allegations in the petition are strictly speaking against the respondent and number suraj bhan and that merely alleging that suraj bhan distributed the pamphlets without imputing to him the knumberledge express or implied of the companytents of the pamphlets does number amount to an allegation of companyrupt practice in support of this he pointed out that the appellant had expressely submitted to the tribunal that numberallegation of companyrupt practice was ever intended to be made against suraj bhan. this is number quite correct because the tribunal in para 16 of its order has observed as follows it has number been seriously challenged that sic in fact it cannumber be challenged that the allegations made against suraj bhan in the amended petition amount to allegations of corrupt practice. apart from that the allegation against the respondent himself is in practically the same terms as that against suraj bhan and other persons mentioned in paragraph 9 c i of the petition. the appellant did number say in his petition that the respondent had numberknumberledge express or implied of the companytents of the pamphlets. yet according to him he was guilty of companyrupt practice by distributing and causing the distribution of the pamphlets through suraj bhan and others. if the averments companytained in the aforesaid para- graph are therefore number to be regarded as allegations of corrupt practice against suraj bhan they companyld also number be regarded as allegations of that type against the respondent. if that were so the whole of paragraph 9 c i would lose its meaning and significance. indeed both the high companyrt and the tribunal have regarded the allegations therein as allegations of companyrupt practices and we ourselves do number see how else they companyld be companystrued. mr. setalvad then companytended that the tribunal had numberpower to allow or direct the amendment of the election petition as it is number a suit between two parties but is a proceeding in which the entire companystituency is interested and referred in this companynection to two decisions of this companyrt in k. kamarai nadar v. kunju thevar 1 and mallappa bassappa v. basavarai ayyappa 2 . in the act as it stood prior to its amendment in 1956 the provisions of the companye of civil procedure relating to trial of suits were made applicable to trial of election petitions by s. 90 2 . those provisions are number reproduced in s. 90 1 of the act. as regards allegations of companyrupt and illegal practices s. 83 2 provided as does s. 83 1 a number that full particulars of the parties alleged to be guilty of such practices be given. subsection 3 empowered the tribunal to permit amendment of the particulars. this latter provision has been deleted. but while it was still in force this companyrt held in harish chandra bajpai v. triloki singh 3 that despite this provision the tribunal had power to permit amendment under 0. vi r. 17 companye of civil procedure in regard to matters other than those failing within sub-s. 3 of s. 83. bhagwati j. who was a party to this decision and who delivered the judgment of the companyrt in the two cases earlier referred to has number expressed any dissent from this view. what he did say in those cases in so far as permission to amend is companycerned was that the tribunal had numberpower to grant it so as to enable the petitioner whose petition did number companyply with the provisions of s. 81 or s. 82 to remedy 1 1959 s.c.r. 583. 3 1957 s.c.r. 370. 2 1959 s.c.r. 611. the defect. in the case before lis the tribunal did by giving an option to the appellant either to amend the petition or furnish particulars or to have para 9 c i struck off as being vague enable the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties which are matters dealt with by ss. 81 and 82 . we agree with what has been said in harishchandra bajpais case 1 and hold that the tribunal was companypetent to allow or give an option to the appellant to amend the petition. the next companytention of learned companynsel is that since the petition had become defective by reason of the amendment the tribunal should either have permitted the appellant to join suraj bhati as a respondent or to further amend the petition by deleting reference to suraj bhan. a patty can avail himself of the provisions of o. i. r. 10 1 c.p.c. subject to the law of limitation. assuming that a tribunal can permit the joinder of parties we must point out that under s. 81 of the act an election petition has to be presented within 45 days of the date of the election of the returned candidate. the application under 0. 1. r. 10 was made more than eight months after the election of the respondent and was thus inumberdinately late and companyld therefore number be granted. as regards joinder of suraj bhan in exercise of the powers companyferred on a companyrt by 0. i. r. 10 2 all that we need say is that the matter was in the discretion of the tribunal and we would number lightly interfere with what the tribunal has done.

ORIGINAL JURISDICTION Writ Petition No. 111 of 1969. Petition under Art. 32 of the Constitution of India for a writ in the nature of habeas companypus. K. Garg and Anil Kumar Gupta for the petitioners. Gopalakrishnan and R.N. Sachthey, for the respondent. The Judgment of the companyrt was delivered by Sikri, J. This is a joint petition by two detenues under art. 32 of the Constitution praying for the issue of a writ of habeas companypus or other appropriate writ, direction or order directing that the petitioners be released. The petitioner, Arshad Ahmad, was detained in pursuance of Detention Order dated September 19, 1967, passed under s. 3 1 a i of the Jammu Kashmir Preventive Detention Act, 1964. The companyy of the order on the record shows that the order was served on the detenu by Jaswant Singh, Deputy Superintendent of Police CID , Jammu on September 27, 1967. No grounds of detention were served on the detenu, but an order dated October 25, 1967, issued by the Secretary to the Government, Home Department, was served on him informing him that it would be against the public interest to disclose the facts or the grounds of detention to him. The learned companynsel for the petitioner, Mr. Garg, companytends that the order dated October 25, 1967, was served too late and the detention of the petitioner became illegal when the time for serving the grounds of detention had expired. Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but number later than ten days from the date of detention, companymunicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government. But the proviso to s. 8 states Provided that numberhing in this subsection shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order, directs that the person detained may be informed that it would be against public interest to companymunicate to him the grounds on which the detention order has been made. The learned companynsel for the State companytends that if an order has been made under the proviso it does number matter whether the order is made and served beyond the ten days time specified in We are unable to accept this companytention. There is numberdoubt that it is the duty of the detaining authority to companymunicate the grounds within ten days of the date of detention if the case does number fall within the proviso. If the detaining authority neither companymunicates the grounds of detention number informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would number have the effect of rendering the detention legal. A similar point arose before this Court in Abdul Jabar Butt v. State of Jammu Kashmir 1 . This Court was then companysidering the Jammu and Kashmir Preventive Detention Act IV of Sambat 2011 and similar provisions companytained therein. Das, C.J., observed If the grounds are number companymunicated to the detenu within the period of time prescribed by the expression as soon as may be the detenu becomes deprived of his statutory right under sub-s. 1 and his detention in such circumstances becomes illegal as being otherwise than in accordance with procedure prescribed by law. In order to prevent this result in a certain specified cases the proviso authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-s. 1 . It, therefore, stands to reason and is companysistent with the principle of harmonious companystruction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of sub-s. 1 should be exercised before that very result sets in. Although there is some change in the language in the present act in substance the provisions are similar as far as the present point is companycerned. We. are here companycerned with the liberty of a subject and we must adopt a companystruction which would number have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in s. 8. Even from the practical point of view we are unable to. see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or number in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or number. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released. Coming to the case of the second petitioner Fazal Hussain, he was detained by order dated January 3, 1968, passed under 1 1957 S.C.R. 51, 59. s. 3 1 read with s. 5 of the Jammu and Kashmir Preventive Detention Act, 1964. The order of detention was served on the petitioner in the Central Jail on January 8, 1968, and the same was read out to him. By order dated January 11, 1968, the petitioner was informed that it was against public interest to disclose facts or to companymunicate to him the grounds on which the detention order was passed. The affidavit stating these facts is sworn to by the Additional Secretary to the Government, Jammu and Kashmir, Home Department, and it is stated in the verification that these facts were stated on the basis of information derived from the record of the case which he believed to be true. The learned companynsel for the petitioner companytends that the Deputy Superintendent Central Jail, who is alleged to have served the order of detention on the petitioner, should have filed the affidavit. The State has annexed to the affidavit a companyy of the Government Detention Order and below the detention order the following endorsement exists The numberice of this order has been served upon Shri Fazal Hussain s o Ayub Khan detenu by reading over the same to him. Sd -Dy. Superintendent Central Jail, Jammu 8/1 In view of this endorsement the order of detention we do number companysider that it was necessary that the Deputy Superintendent, Central Jail, should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain. No other point is raised. The petition of Fazal Hussain accordingly fails and is dismissed.

THOMAS, J. Legal heirs of a plaintiff Vrajlal J. Ganatra who suffered defeat both at the original side as well as at the appellate stage High Court of Gujarat have filed this appeal by special leave. Defendant in the suit Parshottam Shah is number being substituted by his Legal heirs. The suit relates to a property companyered by Ext.66 sale-deed dated December 16, 1963. It was claimed to be the property of the plaintiff even though the defendant was shown in the document as the vendee. Suit was filed in 1981 for declaration of plaintiffs title to the suit property and also for an injunction for restraining the defendant from disturbing the possession of the plaintiff. Trial companyrt while dismissing the suit held that plaintiff failed to prove his title that he was the real owner of the property and that plaintiff failed to establish that he was in possession of it on the date of suit. High Court companycurred with the finding of the trial companyrt regarding title but did number proceed to companysider the other issue regarding possession. However, the High Court further held that suit had been barred by limitation. The case of the plaintiff, in short, is this Defendant was a money-lender and plaintiff was a dealer in land transactions. Plaintiff had borrowed money from the defendant for purchasing lands and he had taken sale-deeds in the name of the defendant as security to the loan amounts advanced and that on clearance of loan amount defendant would reconvey the land companycerned. In the case of Ext.66 sale-deed also, according to the plaintiff, the same pattern was followed as defendant advanced a sum of Rs.13,000/- Rupees thirteen thousand only to the plaintiff for buying the land and so it was incumbent on the defendant to reconvey the property. As the expression real owner used In the case tends to create some companyfusion. we would prefer to refer to the plaintiff as claimant and the defendant as the recorded owner or ostensible owner . The High Court held that the intention when the sale-deed was taken, was numberhing other than making the defendant owner of the property although it might have been thought that if plaintiff would pay the amount which defendant had shelled out the property would be reconveyed to the plaintiff. We may mention here itself that numbercontention has been advanced before the High Court that the suit is number maintainable in view of Section 4 1 of the Benami Transactions Prohibition Act, 1988. By the time the High Court delivered the impugned judgment, the legal position which emerged by virtue of the decision of this Court in Mithilesh Kumari vs. Prem Bihari Khare, 1989 1 SCR 621 JT 1989 1 SC 275, to the effect that Section 4 1 of the said Act can apply to the suit filed even prior to the companying into force of the said Act stood over-ruled by the decision of a larger Bench of this Court in R. Rajgopal Reddy D Lrs. and others vs. Padmini Chandrasekharan D by Lrs., JT 1995 2 SC 667, as provisions of the Act have been held to be prospective only the sale-deed in this case being of the year 1963 remains unaffected by the said Act. The question whether a particular sale is benami or number is largely one of fact. Though there is numberformula or acid test uniformly applicable it is well neigh settled that the question depends predominantly upon the intention of the person who paid the purchase money. For this, the burden of proof is on the person who asserts that it is a benami transaction. However, if it is proved that the purchase money came from a person other than the recorded owner ostensible owner there can be a factual presumption at least in certain cases, depending on facts, that the purchase was for the benefit of the person who supplied purchase money. This is, of companyrse, a rebuttable presumption Bhim Singh D by Lrs. and another vs. Ken singh, AIR 1980 SC 787 Controller of Estate Duties, Lucknow vs. Aloke Mitra AIR 1981 SC 102 His Highness Maharaja Pratap Singh vs. Her Highness Maharani Sarojini Devi, 1994 Supple. 1 SCC 734 . In this case, as it is admitted that defendant is the recorded owner and when purchase money had number admittedly gone from the appellant for execution of the sale-deed of 1963, it is an uphill task for the appellant to establish that the sale-deed was taken benami for him. Of companyrse, appellant had projected certain circumstances to show that he was dealing in lands for which defendant had advanced money to him. Learned companynsel for the appellant tried to draw support from Ext.79 sale-deed dated 22.2.1962, which is a deed executed by another person in favour of the defendant. There is numberdispute that the purchase money for that transaction was advanced by the defendant and the deed was executed in the name of the defendant. It was an admitted case that defendant in that transaction was a benamidar. Learned companynsel for the appellants. therefore, companytended that Ext. 79 number only shows that there were similar dealings between the parties even earlier but it has a perceptible impact on the crucial question relating to the transaction involved in Ext.66 sale-deed. But Ext.79, far from helping the appellants, would help the respondents because the document companytained a clear recital that the land would remain with the defendant as security for the amount advanced by him and when plaintiff paid back all the amount outstanding from him, the defendant would give back the property and execute a registered deed for that purpose. If this was the safeguard adopted by the plaintiff relating to another sale transaction which took place just one year prior to Ext.66, the fact that such a safeguard was number adopted in the case of Ext.66 is sufficient to suggest that the intention was otherwise. Ext.163 is a letter sent by the plaintiff to the defendant on 8.6.1968. It mentioned about certain dealings as between them and plaintiff had acknowledged a balance of Rs. 17,000/- as remaining outstanding with the defendant. Plaintiff then said in the letter that since the suit property was sold to the defendant plaintiff had number more companycern about it. The following sentences in the letter are important. From number onwards numberhing remains outstanding between us and the account between us stands cleared off. This decision is agreed upon by both of us and it is finally settled by mutual companysent. Of companyrse, plaintiff had disowned the said document but the trial companyrt and the High Court have found it proved. Further, plaintiff had admitted his signature therein. Though reliance was sought to be placed on Ext.160 letter sent by defendant to the plaintiff on 23.12.1975. it is of numberavail to the appellants. It is unnecessary for us to go into the other documents referred to by the companynsel as numbere of them helps the appellants to establish that defendant ever entertained the idea that property should belong to the plaintiff. Learned companynsel pointed out that the High Court has failed to decide the question of possession of land and companytended that in fact the land was in the possession of the plaintiff and companytinues to be in the possession of the appellants. Trial companyrt found that plaintiff had failed to prove that the property was in his possession. High Court would have companysidered it superfluous to go into the question of possession. As the plaintiff claimed possession only as the true owner of the land, it is number necessary to companysider the question of possession separately unless his title was upheld by the Court. The presumption is that possession would fellow title. That presumption is stronger in this case as we numbered that the property remained as a bare land.

This criminal appeal has been preferred against the impugned judgment and order dated 20.9.2010 passed by the High Court of Punjab Haryana at Chandigarh in Criminal Appeal No. 243-DB of 2002, by way of which the High Court has affirmed the judgment and order dated 4.3.2002 passed by the Additional Sessions Judge, Jind in Sessions Case No. 37 of 2001, by way of which the appellant number 1 has been companyvicted under Section 376 of the Indian Penal Code, 1860 hereinafter referred to as IPC and awarded the sentence of seven years rigorous imprisonment with a fine of Rs. 5,000/- and in default of making payment, to further undergo imprisonment for two years. Further he has been companyvicted under Section 506 IPC and awarded the sentence of two years rigorous imprisonment. Both the sentences have been directed to run companycurrently. The other companyaccused, namely, Manoj, Satish Sitta and Kuldeep have been companyvicted separately under sections 376, 506, 366 and 363 IPC. Kuldeep Singh alone has been found guilty under Section 376 2 g IPC, and has been awarded sentence of life imprisonment. Out of these four companyvicts, Kuldeep Singh and Manoj did number prefer any appeal against the High Courts judgment, while appellant number.1 and 2 preferred the present appeal. Appellant number2 had died during the pendency of this appeal in jail, therefore, we are companycerned only with the case of appellant number1 i. Lillu Rajesh. Mr. J.P. Singh, learned companynsel for the appellant, submitted that the prosecution has failed to prove the date of birth of the prosecutrix and that she was about 17-18 years of age on the date of incident. Thus, it was a clear cut case of companysent. The statement of Raj Bala, prosecutrix has number been companyroborated by any of the witnesses and has number got companyroborated by the medical evidence. Dr. Malti Gupta PW-1 , who had examined Raj Bala, prosecutrix medically had deposed that there was numberexternal mark of injury on any part of her body. The possibility of prosecutrix being habitual to sexual intercourse companyld number be ruled out. There was numberbleeding. Thus, in such a fact-situation, the statement of the prosecutrix that she was unmarried and had never indulged in sexual activity with any person, or was below 16 years, companyld number be relied upon. On the other hand, the State of Haryana, as usual, remained unrepresented as the government companynsel duly appointed by the State companysidered it their privilege number to appear in companyrt and become the burden on public exchequer. So, the companyrt has to examine the case more companysciously going through the record and examine the companyrectness of the findings recorded by the companyrts below. The trial companyrt has examined the issue on age and after examining the school certificate Ext. P-N , which stood duly proved by Lakhi Ram PW-11 , Science teacher, Government High Court, Badhana and Gajraj Singh, teacher, Govt. Primary School, Badhana, came to the companyclusion that her date of birth as per the school register was 4.6.1987. So on the date of incident i.e. 7.3.2001, she was 13 years 9 month and 2 days old. She was a student of 6th standard. To refute the same, numberevidence worth the name has been led by the accusedappellant. The said finding stood affirmed by the High Court and in view thereof, it remains totally immaterial whether the prosecutrix was a companysenting party or number. So far as the medical evidence is companycerned, Dr. Malti Gupta PW- 1 , Medical Officer, Civil Hospital, Jind, has deposed that Raj Bala, prosecutrix was habitual in sexual activities and such a statement was made in view of the medical examination. Relevant part thereof reads as under Bilateral breast were moderately developed, There was numberexternal mark of injury seen any where on the body. Axillary heir was number developed. Public hair were partially developed. On local examination labia majora and labia minora were moderately developed. There was numberbleeding P V. Whitish discharge was present. Hymen was companypletely torn. Vagina admitted two fingers cervix was numbermal, uterus was of null parous by lateral FF were numbermal. .Two swabs were taken from cervix vagina. Public hair were taken and sent for examination. Salwar worn by Raj Bala was taken and sealed following were handed over to the police. .It is companyrect that I have given my opinion that hymen was companypletely torn. .It is also companyrect that the marginas were companypletely heeled. I cannot give the exact time. .I cannot say whether it was torn one year back 2 years back or 10 days back. .I cannot say whether there was any sign of semen on the swabs taken by me. She further deposed Since there was numbermatting of hair so I did number opine whether there was any semen on the public hair. .I do number remember whether I enquired from Raj Bala whether she came to me for medico legal examination after washing clothes and taking bath or number. However, the salwar worn by her was taken into custody. I cannot say from how many days Raj Bala was having sexual activities. The possibility of Raj Bala of habitual sexual intercourse cannot be ruled out. In fact, much has been argued by Mr. J.P. Singh on two fingers test. Admitting very fairly that in case she was a minor, the question as to whether she had been habitual to sexual activities or number, is immaterial to determine the issue of companysent. So far as the two finger test is companycerned, it requires a serious companysideration by the companyrt as there is a demand for sound standard of companyducting and interpreting forensic examination of rape survivors. In Narayanamma Kum v. State of Karnataka Ors., 1994 5 SCC 728, this Court held that fact of admission of two fingers and the hymen rupture does number give a clear indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as to whether the hymen stood ruptured much earlier or carried an old tear. The factum of admission of two fingers companyld number be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. The doctor must give his clear opinion as to whether it was painful and bleeding on touch, for the reason that such companyditions obviously relate to the hymen. In State of U.P. v. Pappu Yunus Anr., AIR 2005 SC 1248, the Court held that a prosecutrix companyplaining of having been a victim of an offence of rape is number an accomplice after the crime. There is numberrule of law that her testimony cannot be acted upon without companyroboration in material particulars, for the reason, that she stands on a much higher pedestal than an injured witness. This Court while dealing with the issue in State of Uttar Pradesh v. Munshi, AIR 2009 SC 370, has expressed its anguish and held that even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the companytrary, the question still remains as to whether the accused companymitted rape on the victim on the occasion companyplained of. Even if the victim had lost her virginity earlier, it can certainly number give a licence to any person to rape her. It is the accused who was on trial and number the victim. So as to whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is number a vulnerable object or prey for being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher pedestal than an injured witness for the reason that an injured witness gets the injury on the physical form, while the prosecutrix suffers psychologically and emotionally. In Narender Kumar v. State NCT of Delhi , AIR 2012 SC 2281, this Court dealt with a case where the allegation was that the victim of rape herself was an unchaste woman, and a woman of easy virtue. The companyrt held that so far as the prosecutrix is companycerned, mere statement of prosecutrix herself is enough to record a companyviction, when her evidence is read in its totality and found to be worth reliance. The incident in itself causes a great distress and humiliation to the victim though, undoubtedly a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The Court further held as under Even in cases where there is some material to show that the victim was habituated to sexual intercourse, numberinference of the victim being a woman of easy virtues or a women of loose moral character can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is number a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. Vide State of Maharashtra Anr. Madhukar Narayan Mardikar, AIR 1991 SC 207 State of Punjab Gurmit Singh Ors., AIR 1996 SC 1393 and State of U.P. v. Pappu Yunus Anr., AIR 2005 SC 1248 . In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is number a relevant factor to be taken into companysideration at all. In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290, this companyrt dealt with the issue and held that rape is violative of victims fundamental right under Article 21 of the Constitution. So, the companyrts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. 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 leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is number only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution. In view of International Covenant on Economic, Social, and Cultural Rights 1966 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does number retraumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures companyducted in a manner that respects their right to companysent. Medical procedures should number be carried out in a manner that companystitutes cruel, inhuman, or degrading treatment and health should be of paramount companysideration while dealing with gender-based violence.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 669 and 670 of 1971. Appeal by Special Leave from the Judgment and order dated the 11th June, 1970 of the Calcutta High Court in Sales Tax reference No. 395 of 1969. T. Desai, H. S. Parihar and 1. N. Shroff, for the Appellant. E N. Sinha, Solicitor General, Sukumar mar Basu and G. Chatterjee for respondent in C.A. 669/71. Leila Seth, Sukumar Basu, G. S. Chatterjee, for Respondent in C.A. 670/71. The Judgement of the Court was delivered by JASWANT SINGH, J.-These two appeals Nos. 669 and 670 of 1971 by special leave from the companymon judgment dated June lt, 1970 of the High Court at Calcutta in Sales Tax References Nos. 395 of 1965 and 521 of 1967 which raise important questions as to the scope and extant of the revisional power of the Commissioner, Commercial Taxes, under section 20 3 of the Bengal Finance Sales Tax Act, 1941 Act VI of 1941 hereinafter referred to as the Act , and shall be disposed of by this judgment. The facts giving rise to these appeals are The appellant which is a Private Limited Company, incorporated under the Indian Companies Act, 1913, and is registered as a dealer under the Act submitted a return for 4 quarters ending with the last date of Chaitra, 1364 B.S. companyresponding to the period companymencing with April 14, 1957, And ending with April 13, 1958 showing a gross turnover of sales of Rs. 35,93,402/- By his order dated December 7, 1959, the Commercial Tax officer, Rajakatra Charge, rejected the appellants books of accounts on the ground of absence of purchase and sale vouchers and of stock statements and enhanced the gross turnover shown by the appellant by Rs. 50,000/- and charged the entire enhanced amount to tax subject to deduction under section 5 2 be of the Act. He also imposed a penalty of Rs. 1,000/- under section 11 1 of the Act. On appeal under section 20 1 of the Act, the Assistant Commissioner, Commercial Taxes, Burrabazar Circle, by his order dated September 10, 1960, reduced the enhancement of gross turnover from Rs. 50,000/- lo Rs. 25,000/- and the penalty from Rs. 1,000/- to Rs. 500/-. Not satisfied with this reduction, the appellant moved The Commissioner, Commercial Taxes, West Bengal, in revision under section 20 3 of the Act on November 10, 1960. I before the filing of the said revision petition, the Commercial Tax officer, Central Section, to whom power under section 14 1 of the 11 Act has been duly delegated started an enquiry on January 20, 1960 to the and served on the appellant a numberice dated October 25, 1960 to the following effect- You are hereby directed to furnish the undersigned with the serial Nos. Of the cash memos printed by you in 1363 B.S., 1364 B.S., 1365 B.S., 1366 S. and 1367 B.S. The names of the suppliers of these memos relevant bills Nos. and dates, amount, dates of payment and modes of l payment also are to be indicated. I The information may be supplied to the undersigned on 31st October, 1960 at 4 p.m. positively. In response to the numberice, the appellant appeared before the Commercial Tax Officer, who after hearing the former and examining the cash memos and other material submitted a report of the investigation made by him to the Assistant Commissioner, Central Section observing inter alia that two original cash memos issued by the appellant bearing serial No. 30727-26 dated January 24 for Rs. 69.50 in respect of sale of Banarsi Saree and No. 31310-37 dated December 25, 1966 for Rs. 62.20 in respect of sale of readymade garments were number properly recorded in the appellants books of accounts and records and that on reference to the appellants books of accounts and cash memos, it had been found that cash memo No. 30727-26 was issued in respect of mill-made cloth for Rs. 11.75 on August 18, 1964 and number in respect of Banarsi saree for Rs. 69.50 an January 24 and cash memo No. 31310-37 was issued in respect of sale of mill-made cloth for Rs. 9.37 and number in respect of sale of already-made garments for Rs. 62.20 on December 25, 1966. He also observed in his report that in cash memo No. 31310-37, the date appeared to have been tampered with by subsequent insertion of the numerals 66 after the date of issue and that the actual date appear ed to be December 25 and that the appellant had number been able to furnish a satisfactory explanation with regard to these discrepancies. The Commercial Tax officer further stated in his report that his investigation revealed that the appellant got duplicate sets of 1,00,000 cash memos bearing serial Nos. 2850 to 29500 and 30501 to 31500 printed and supplied by M s Blackwoods India Limited and did number record sales to the extent of Rs. 30,00,000/- which in the absence of any evidence to the companytrary appeared to be entirely taxable. This report was received by the Additional Commissioner, Commercial Taxes, while the aforesaid revision petition was still pending before him. he, thereupon gave the following numberice to the appellanton discovery of fresh materials, as reported by the Commercial Tax officer, Central Section, in his report dated 27-12-60 companyy enclosed , it appears that you have suppressed sales estimated to be Rs. 30,00,000 in respect of the assessment of four quarters ending Chaitra 1364 B.S. The above revision petition which has been filed before me is against the appellate order in respect of the assessment for the said period. It also appears that sales to the extent of Rs. 30,00,000 estimated escaped taxation from the original assessment and companysequently from the Assistant Commissioners appellate order. The above revision petition will be heard by me on 5-10-61 at 11.30 a.m. and the report dated 27-12-60, submitted by the Commercial Tax officer, Central Section, will be companysidered at the time of hearing of the revision petition. You should, therefore, appear before me on that date at the hour fixed either in person or by a duly instructed agent to represent your case, failing which the matter will be decided ex-parte without any further reference to you. In reply to the numberice, the appellant wrote back denying that it had any transaction with M s Blackwoods India Ltd. in relation to the printing of the duplicate sets of the cash memos in question and stating inter alia that on the matter being referred to the later, they companyld number say from whom actually, the order in question was received number companyld they give any relevant particulars. It was further added by the appellant that the proposed enhancement of gross and taxable sales by Rs. 30,00,000/- was unjustified and unwarranted. The Additional Commissioner disposed of the revision petition be enhancing the assessment by Rs. 20,00,000/- as against the admitted gross turnover of Rs. 35,93,402/- and charged the entire enhanced amount of Rs. 20,00,000/- to tax subject to deduction under section 5 2 b of the Act, The appellant thereupon took the matter in further revision to the Board of Revenue, West Bengal companytending that the companyclusions arrived at by the Additional Commissioner, Commercial Taxes were wholly unwarranted and that while exercising his power of revision under section 20 3 of the Act, the Commissioner had to companyfine himself to the examination of the material before the Assessing officer and companyld number take additional facts into companysideration. The Board negatived both the companytentions and rejected the revision application. Thereupon the appellant made an application to the Board under section 21 1 of the Act requesting that the points of law arising 10-833SCI/76 from its decision be referred for decision to the High Court. Although at the hearing of the application, the appellant stressed that reference be made on three points, the Board allowed the application in part and referred only the following question of law for decision to the High Court- Whether on the Facts and circumstances of the case, in 5 exercise of his powers under section 20 3 of the Bengal Financc Sales Tax Act, 1941, the Additional Commissioner was companypetent to reassess the gross turnover of the petitioner by taking into companysideration additional material which had number been made available to the assessing officer The appellant did number rest companytent with this limited reference and made an application under sub-sections 2 b and 3 of section 21 of the Act to the High Court which directed the Board to submit for its decision The following further question of law- Whether on the facts admitted or found by the Tribunals below, the Additional Commissioner of Commercial Taxes was vested with the authority or jurisdiction, under sub-section 3 of section 20 of the Bengal Financc Sales Tax Act, 1941, read with rule 80A of the Rules framed thereunder to admit or rely on the purported report, dated December 27, 1960, of The Commercial Tax officer of the Central Section, pursuant to the enquiry, under subsection 1 of section 14 of the said Act, initiated long before The filing of the revision petition in question by the petitioner before the Commissioner of Commercial Taxes, West Bengal ? The Board thereupon referred the above quoted second question of law as well to The High Court for its decision. After hearing The appellant and the Revenue, the High Court by its companymon judgment dated June 11, 1970 answered both the aforesaid questions in the affirmative. Aggrieved by this judgment of the High Court, the appellant applied for and obtained special leave to appeal to this Court. Appearing for the appellant, Mr. Desai has strenuously urged that the revisional power of the Additional Commissioner under section 20 3 of the Act was a limited one and he was number companypetent to act as an original assessing authority and reassess the gross turn over by taking into companysideration the additional material companyprising fresh sources of revenue which was number available to the Assessing officer. He has further urged that the Additional Commissioner, companyld number admit or rely on the report dated December 27, 1960, of the Commercial Tax officer, Central Section, based on the enquiry under section 14 1 of the Act which was initiated long before The filing of The revision application before the Commissioner, Commercial Taxes. West Bengal. Though both these companytentions are inextricably linked up, we shall deal with them separately. Turning to the first companytention, we wish to make it clear that the scope and ambit of the revisional jurisdiction varies from statute to statute and it is difficult to make general observations in regard thereto. For ascertaining the true scope, companytent and ambit of the revisional jurisdiction of the Commissioner or the Additional Commissioner, as the case may be, of Commercial Taxes under the Act, it is necessary to numberice section 20 thereof which in so far as is material for the purpose of these appeals stood thus at the relevant time- 20 3 . Subject to such rules as may be prescribed and for reasons to be recorded in writing, the Commissioner upon application or of his own motion may revise any assess made or order passed under this Act or the rules thereunder by a person appointed under section 3 to assist him, and subject as aforesaid, the Board of Revenue may, in like manner, revise any order passed by the Commissioner Provided that before rejecting g any application for the revision of any such order the Commissioner or the Board of Revenue, as the case may be, shall companysider it and shall record reasons for such rejection. Provided further that numberapplication for revision shall lie to the Commissioner in respect of any assessment if an appeal lies under sub-section 1 to the Commissioner in respect of such assessment Before any order is passed under this section which is likely to affect any person adversely, such person shall be given reasonable opportunity of being heard. The section as extracted above is very widely worded. The word revise occurring therein which in dictionary is describe as meaning to reexamine, to review, to companyrect, or to amend the fault is number hedged or qualified by any companydition or limitation. The companytrolling expressions like for the purpose of satisfying himself as to the legality Or propriety of the order passed or regularity of the proceeding which are susceptible of being companystrued as restricting the reversional power to rectification of an illegality or impropriety of the order or of irregularity in the proceeding are also number to be found therein. There is also numberhing in the Bengal Sales Tax Rules, 1941 hereinafter called the Rules to circumscribe or limit the power. It is number, therefore, unreasonable to infer that the amplitude of the power companyferred on the Commissioner or the Additional Commissioner is more extensive than the power exercisable by the High Court under section 115 OF the Code of Civil Procedure. In fact, it can be easily equated with the power exercisable by the appellate authority in an appeal under sub-section 2 of section 20 of the Act. We are fortified in this view by the following observations made by this Court in Indira Sohanial v. custodian of Evacuee Property Delhi and others 1 . A T R. 1956 S. C. 77. Section 27 is very wide in its terms and it cannot be companystrued as being subject to any limitation such as filing of an appeal. Nor can the scope of revisional powers be companyfined only to matters of jurisdiction or illegal lithe, because under s. 27 the Custodian General, can exercise revisional powers for the purpose of satisfying himself as to the legality or propriety of any order of the Custodian- The following observations made by Ramaswami, J. in East Asiatic Co. India Ltd. v. The State of Madras 1 are also relevant - The purposes of this Act are two fold, viz., the levy of a general tax on the sale of goods to supplement the lost revenues and for promoting the general public good and secondly, to see that this is done under the provisions of the Act and number by carrying out in a capricious or arbitrary manner. Therefore, a revisional authority has to be created. What is revision ? The essence of revisional jurisdiction lies in the duty of the superior tribunal or officer entrusted with such jurisdiction to see that the subordinate tribunals or officers keep themselves within the bounds prescribed by law and that they do what their duty requires them to do and that they do it in a legal manner. This jurisdiction being one of superintendent and companyrection in appropriate cases, it is exercisable even suo motu as is clear from the numerous statutory provisions relating to revision found in various Acts and Regulations such as the Civil Procedure Code, Criminal Procedure Code, Income Tax Act, etc. The jurisdiction of suo motu revision is number cribbed and cabined or companyfined by companyditions and qualifications. The purpose of such an amplitude being given Suo motu revisions appears to be as much to safeguard the interests of the exchequer as in the interests of the assesses. The State can never be the appellant and if there is an order against the State to its prejudice, and naturally the assesses in whose favour the order is passed does number prefer an appeal, the State would suffer unless its interests are safeguarded by the exercise of such supervisory jurisdiction as the one given to the authorities above mentioned. Thus the Commissioner or the Additional Commissioner can, in exercise of his revisional power, re-assess the turnover and while doing so rope in escaped items of turnover and thereby enhance the gross turnover. Having found that the power of revision exercisable by the Com missioner, Commercial Taxes is number tramelled by any limitation, let us number see whether the companymissioner while exercising the revisional power is companyfined to the order of assessment and the record of pro- C. 299 ceedings of the Assessing officer or can he travel outside the same and re-assess the gross turnover by taking additional material under companysideration. The following observations made in the majority judgment of this Court in the State of Kerala v. K. M. Cheria Abdulla Co. 1 are helpful in deciding this matter- The words of section 12 2 of the Madras General Sales Tax Act, 1939, that the Deputy Commissioner may pass such order with respect thereto as he thinks fit means such order as may in the circumstances of the case for rec rectifying the defect be regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order, or irregularity in the proceeding. It is therefore number right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record. Therefore, companyferment of power under rule 14-A of the Madras General Sales Tax Rules, 1939, to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does number amount to enlarging the jurisdiction companyferred by section 12 2 . It will also be apposite in this companynection to refer to the following operations made by the Madras High Court in State of Madras v. The Madras Knitting Co. Ltd. 2 The powers given to the revising authority under section 12 2 were number companyfined to errors patent on the face of the record but would extend to probing further into the records like calling for despatch registers and other evidence. It will also be useful in this companynection to refer to the decision of this Court in Swastik oil Mills Ltd. v. H. Munshi, Deputy Cont missioner of Sales Tax, Bombay 3 where this Court did number accept the principle laid down by the Andhra Pradesh High Court in State of Andhra Pradesh v. G. Lakshmaiah Chetty Sons 4 , that the Deputy Commissioner of Sales Tax while exercising revisional powers under the Sales Tax Act of 1946 or of 1953 or of 1959 companyld number travel beyond the material or record that is available to the assessing authority and was number entitled to find data to institute an enquire. so as to include additional material in order to judge the companyrectness of the order sought to be revised and held 1 1965 16 S.T.C. 875. 3 1968 2 S. C. R.492. 2 1959 10 S.T.C. 155. 4 12 S.T.C.663. Whenever a power is companyferred on an authority to revise an order, the authority is entitled to examine the companyrectness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is numberreason why the authority should number be entitled, to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material. The proceedings for revision, if started suo motu, must number of companyrse be based on a mere companyjecture and there should be some ground for invoking the revision powers. Once these powers are invoked, the actual interference must be based on sufficient grounds, and, if it is companysidered necessary that some additional enquiry should be made to arrive at a proper and just decision, there can be numberbar to the revising authority holding a further enquiry or directing such an enquiry to be held by some other appropriate authority. This principle has been clearly recognised by this Court in the State of Kerala v. Abdullah and Company 1965 16 T.C. 875. The decisions of this Court in Deputy Commissioner of Agricultural income tax and Sales Tax, Quilon and Anr. v. Dhanalakshmi Vilas Cashew Co. 1 the State of Kerala v. V.M. Appukutty and Commissioner of Income-tax, Bombay v. Shapoorji Pallonji Mistry 3 relied upon by Mr. Desai in support of his companytention that while exercising his revisional power under section 20 3 of the Act, the Com Commissioner cannot travel outside the return made by the assessee and the assessment order passed by the Sales Tax officer with a view to finding out suppressed or escaped items of turnover and enhance the assessment are distinguishable as in all those cases there were specific and separate provisions which enabled escaped turnover or income being brought to tax after following a special procedure. In Dhanalakshimi Vilas Cashew Cos case supra , there was rule 33 of Kerala General Sales Tax Rules, 1950, in M. Appukutty case supra , there was rule 17 of the Madras General Sales Tax Rules, 1939 and in Shapoorji Pallonji Mistrys case supra there were sections 34 and 33B of the Income Tax Act, 1922 which enabled escaped turnover or escaped income to be brought to tax. In the Act before us, however there are numberseparate or specific provisions for assessment of escaped turnover which may, by implication, be said to exclude from the ambit of the revisional jurisdiction of the Commissioner the taking of additional facts into companysideration and enhancing the gross turn over. In view of the foregoing discussion we have numberhesitation in repelling the first companytention raised on behalf of the appellant by Mr. Desai and in holding that the High Court was right in answering the First question referred to it by the Board of Revenue in the affirmative. This takes us to the second companytention advanced on behalf of the appellant which is companyered by the second question referred by the 1 1969 24 S.T.C. 491. 2 1963 14 S.T.C.242. 3 1962 44 I.T.R. 891. Board of Revenue at the requisition of the High Court. For effectively dealing with this companytention, it is necessary to advert to the following two previsions viz. section 14 of the Act and rule 80A of the Rules 14. 1 The Commissioner may, subject to such companyditions as may be prescribed, require any dealer a to produce before him any accounts, registers or documents, b to furnish any information, relating to stock of goods of, or purchases, sales or deliveries of goods by, the dealer or relating to any other matter, as may be deemed necessary for the purposes of this Act. 2 a All accounts, registers and documents relating to the stocks of goods of, or purchases, sales and deliveries of goods by any dealer and b all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection of the Commissioner. If the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers or documents, of the dealer as may be necessary, and shall grant a receipt for the same, and shall retain the same only for so long as may be necessary for examination thereof or for a prosecution Rule 80A. The appellate or revisional authority may, before finally disposing of the matter, make such inquiry or cause such inquiry to he made by such officer as it may think fit. A companybined reading of the provisions of Section 20 3 of the Act and rule 80A of the Rules would show that the., Commissioner, Commercial taxes is empowered to make or cause to be made such enquiry as he may think fit for proper exercise of the revisional jurisdiction companyferred on him under section 20 3 of the Act. It would be further numbericed that the Commissioner can, under section 14 of the Act, call upon ,. dealer to produce any accounts, registers or documents or to furnish any information relating to his business as may be deemed necessary. for the purpose of the Act which include the exercise of recessional jurisdiction. It would also be numbericed that the powers under section 14 of the Act have been duly delegated to the Commercial Tax Officer. In this state of affairs, it is immaterial whether the Commissioner proceeds to make the enquiry before or after filing of a revision petition so long as he affords to the person likely to be adversely affected by his action, an opportunity of being heard. In the instant case, the whole thing was duly processed s already stated. the Commercial Tax officer, Central Section, by his numberice dated October 25, 1960 gave adequate opportunity to the appellant to explain the discrepancies in its cash memos and books of accounts. Another opportunity to explain the suspicions circumstances relating to the alleged suppression of the turnover as also to refute the material companylected by the Commercial Tax officer, Central Section, as a result of the investigation made by him and to show cause why action to subject the escaped turnover to tax be number taken was afforded to the appellant by the Additional Commissioner, Commercial Taxes, when on receipt of the ,aforesaid report dated December 27, 1960 of the Commercial Tax officer, Central Section, he gave a numberice to the former and furnished him with a full companyy of the report. It cannot therefore, be maintained with any show of force that, in admitting and relying, on the aforesaid report dated December 27, 1960 of the Commercial Tax officer, Central Section, the Additional Commissioner, Commercial Taxes companymitted any illegality or breach of any statutory provision or rule or transgressed the limits of his jurisdiction. It will also number be out of place to mention that the companytention which is the subject matter of the second question was never raised before the Board or Revenue as appears from the statement of the case drawn by it. We arc, therefore, clearly of the view that the High Court was right in answering the second question also in the affirmative. In the result, the appeals fail and are hereby dismissed but in the circumstances of the case without any order as to companyts.

civil appellate jurisdiction civil appeal number 220 nt of 1986 from the judgment and order dated 20th numberember 1985 of the karnataka high companyrt in writ petition number 27805 of 1982. k. viswanath iyer k.m.k. nair and s.t. desai for the appellants b.r.l. iyengar m. veerappa for the respondents. the judgment of the companyrt was delivered by bhagwati c.j. the short question that arises for determination in this appeal by certificate is whether shrimps prawns and lobsters subjected to processing like cutting of heads and tails peeling deveining cleaning and freezing cease to be the same companymodity and become a different companymodity for the purpose of the central sales tax act 1956. can they still go under the description of shrimps prawns and lobsters or in other words when we use the words shrimps prawns and lobsters do they mean only raw shrimps prawns and lobsters as caught from the sea or do they also include processed and frozen shrimps prawns and lobsters. this question which falls for determination in the present appeal arising out of the following facts. the appellants are a partnership firm carrying on business as dealers in shrimps prawns and lobsters and other sea food products. the appellants are registered as a dealer both under the karnataka sales tax act 1957 and the central sales tax act 1956. the appellants in the companyrse of their business purchase shrimps prawns and lobsters locally for the purpose of companyplying with orders for export and they cut the heads and tails of the shrimps prawns and lobsters purchased by them peel devein and clean them and after freezing and packing them in cartons they export them to foreign buyers outside india under prior companytracts of sale. the appellants filed their statement of monthly turn-over for the month of april 1982 before the assistant commissioner of companymercial taxes mangalore and in this statement of monthly turn-over they claimed total exemption from tax in respect of the purchase turn-over of shrimps prawns and lobsters on the ground that the same had been purchased in the companyrse of export. the appellants relied on sub-section 3 of section 5 of the central sales tax act 1956 which reads as follows numberwithstanding anything companytained in sub-section 1 the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of india shall also be deemed to be in the companyrse of such export if such last sale or purchase took place after and was for the purpose of companyplying with the agreement or order for or in relation to such export. the appellants companytended that since the purchases of shrimps prawns and lobsters had been made by them for the purpose of companyplying with the orders for export such purchases of shrimps prawns and lobsters must be deemed to be in the companyrse of export and they were accordingly number taxable under the karnataka sales tax act 1957. this contention of the appellants was rejected by the assistant commissioner of companymercial taxes and on 30th july 1982 an order was made by the assistant companymissioner of companymercial taxes for the month of april 1982 under section 12 b 2 of the karnataka sales tax 1957 assessing the appellants to purchase-tax and other incidental taxes in respect of the purchases of shrimps prawns and lobsters made by them during the said period. the assistant companymissioner of commercial taxes also passed anumberher order dated 3rd august 1982 assessing the appellants to purchase-tax and other incidental taxes in respect of the purchases of shrimps prawns and lobsters made by them during the month of may 1982. these two orders made by the assistant companymissioner of commercial taxes were followed by issue of numberices of demand for rs.52610.71 and rs.44237.88 respectively against the appellants. the appellants thereupon filed a writ petition in the high companyrt of karnataka challenging the assessment orders and the numberices of demand issued against them and sought appropriate direction order or writ restraining the respondents from imposing or companylecting purchase tax on purchase turn-over of shrimps prawns and lobsters under the karnataka sales tax act 1957. the writ petition was dismissed by the high companyrt but having regard to the importance of the question involved a certificate under article 133 of the companystitution was granted by the high court and that is how the present appeal by certificate has come before us. it is clear on a plain reading of sub-section 3 of section 5 of the central sales tax act 1956 that in order to attract the applicability of that provision it is necessary that the goods which are purchased by an assessee for the purpose of companyplying with the agreement or order for or in relation to export must be the same goods which are exported out of the territory of india. the words those goods in this subsection are clearly referable to any goods mentioned in the preceding part of the sub-section and it is therefore obvious that the goods purchased by the assessee and the goods exported by him must be the same. if by reason of any processing to which the goods may be subjected after purchase they change their identity so that companymercially they can numberlonger be regarded as the original goods but instead become a new and different kind of goods and then they are exported the purchases of original goods made by the assessee cannumber be said to be purchases in the companyrse of export. the question which therefore arises for companysideration is as to what happens when shrimps prawns and lobsters purchased by the assessee are subjected to the process of cutting of heads and tails peeling deveining cleaning and freezing before export. do they cease to be the original companymodity and become companymercially a new companymodity or do they still retain their original identity as shrimps prawns and lobsters? before we proceed to companysider this question it is necessary to refer to certain provisions of the karnataka sales tax act 1957 hereinafter referred to as the karnataka act which came into force on 1st october 1957. section 5 of the karnataka act which enacts the charging section provides for levy of tax on sales and purchases of various companymodities described in the schedules to the act. the third schedule to the karnataka act as originally enacted enumerated the companymodities on which a single-point tax was leviable under subsection 3 b of section 5 and there were 13 entries in this schedule. numbere of these 13 entries included shrimps prawns and lobsters with the result that the purchases of shrimps prawns and lobsters were number exigible to purchase tax. this position companytinued right from the time of the original enactment until 31st march 1973 when the karnataka sales tax amendment act 1973 introduced a new entry 13a in the third schedule with effect from ist april 1973. this entry included shrimps prawns and lobsters in the third schedule. there was anumberher amendment made in the karnataka act in 1978 by the karnataka sales tax amendment act 1978 and section 9 of this amending act made certain amendments in entry 13a with retrospective effect so that from 1st april 1973 entry 13a included in the third schedule shrimps prawns and lobsters other than processed or frozen shrimps prawns and lobsters and the explanation to entry 13a provided that processing shall include all or any of the following namely cutting of head or tail peeling deveining cleaning or freezing. but entry 13a in this form companytinued only up to 31st august 1978 and with effect from 1st september 1978 a further amendment was made by the karnataka taxation and certain other laws amendment act 1982 and after this amendment which was made with retrospective effect from 1st september 1978 entry 13a read shrimps prawns and lobsters other than frozen shrimps prawns and lobsters. the amendment made by the 1982 amendment act excluded from the scope and ambit of entry 13a frozen shrimps prawns and lobsters and brought within the net of taxation only purchases of shrimps prawns and lobsters other than frozen shrimps prawns and lobsters provided they were last purchases within the state. it is in the companytext of these provisions of the karnataka act that we have to companysider whether shrimps prawns and lobsters when subjected to the process of cutting of heads and tails peeling deveining cleaning and freezing retain their original character and identity or become anumberher distinct companymodity. the test which has to be applied for the purpose of determining whether a companymodity subjected to processing retains its original character and identity is as to whether the processed companymodity is regarded in the trade by those who deal in it as distinct in identity from the original companymodity or it is regarded commercially and in the trade the same as the original commodity. it is necessary to point out that it is number every processing that brings about change in the character and identity of a companymodity. the nature and extent of processing may vary from one case to anumberher and indeed there may be several stages of processing and perhaps different kinds of processing at each stage. with each process suffered the original companymodity experiences change. but it is only when the change or a series of changes take the companymodity to the point where companymercially it can numberlonger be regarded as the original companymodity but instead is recognised as a new and distinct companymodity that it can be said that a new companymodity distinct from the original has companye into being. the test is whether in the eyes of those dealing in the companymodity or in commercial parlance the processed companymodity is regarded as distinct in character and identity from the original commodity vide sales tax board v. pio food packers 1980 3 scr 1271. it is clear on an application of this test that processed or frozen shrimps prawns and lobsters are commercially regarded the same companymodity as raw shrimps prawns and lobsters. when raw shrimps prawns and lobsters are subjected to the process of cutting of heads and tails peeling deveining cleaning and freezing they do number cease to be shrimps prawns and lobsters and become anumberher distinct companymodity. they are in companymon parlance knumbern as shrimps prawns and lobsters. there is numberessential difference between raw shrimps prawns and lobsters and processed or frozen shrimps prawns and lobsters. the dealer and the companysumer regard both as shrimps prawns and lobsters. the only difference is that processed shrimps prawns and lobsters are ready for the table while raw shrimps prawns and lobsters are number but still both are in commercial parlance shrimps prawns and lobsters. it is undoubtedly true that processed shrimps prawns and lobsters are the result of subjecting raw shrimps prawns and lobsters to a certain degree of processing but even so they continue to possess their original character and identity as shrimps prawns and lobsters numberwithstanding the removal of heads and tails peeling deveining and cleaning which are necessary for making them fit for the table. equally it makes numberdifference in character or identity when shrimps prawns and lobsters are frozen for the purpose of preservation and transfer to other places including far off countries in the world. there can therefore be numberdoubt that processed or frozen shrimps prawns and lobsters are number a new and distinct companymodity but they retain the same character and identity as the original shrimps prawns and lobsters. this view finds ample support from the decision of the supreme companyrt of the united states in east texas motor freight lines v. frozen food express 100 l. ed. 917 where the question was whether dressed and frozen chicken was a commercially distinct article from the original chicken. the supreme companyrt held that it was number a companymercially distinct article but was companymercially and in companymon parlance the same article as chicken. the supreme companyrt pointed out killing dressing and freezing a chicken is certainly a change in the companymodity. but it is no more drastic a change than the change which takes place in milk from pasturising homogenizing adding vitamin companycentrates standardising and bottling. and proceeded to add in words clear and explicit there is hardly less difference between cotton in the field and companyton at the gin or in the bale or between companytonseed in the field and cottonseed at the gin than between a chicken in the pen and one that is dressed. the ginned and baled companyton and the companytonseed as well as the dressed chicken have gone through a processing stage. but neither has been manufactured in the numbermal sense of the word. if dressed and frozen chicken is number a companymercially distinct article from the original chicken it must follow on a process of analogical reasoning that processed and frozen shrimps prawns and lobsters cannumber be regarded as commercially distinct companymodity from raw shrimps prawns and lobsters. this companyclusion on principle was number disputed by the high companyrt in its judgment and the high companyrt companyceded that even after processing such as cutting of heads and tails peeling deveining cleaning and freezing shrimps prawns and lobsters subjected to such processing companytinued in common parlance to be called shrimps prawns and lobsters. but the high companyrt took the view that entry 13a after the amendment effected in it with retrospective effect from 1st september 1978 made a distinction between raw shrimps prawns and lobsters and processed or frozen shrimps prawns and lobsters. in view of this distinction made in entry 13a it was number possible to hold that processed or frozen shrimps prawns and lobsters were the same companymodity as raw shrimps prawns and lobsters. the argument was that when the state legislature itself made a distinction between these categories of companymodities by making purchases of one category amenable to sales tax under entry 13a and leaving out of the scope of taxation under entry 13a the other category how companyld it be said that both these categories represent the same companymodity and there is numberdifference in character and identity between the two. this argument we are afraid is number well-founded. it is based on a total misapprehension in regard to the true object and intendment of entry 13a and it erroneously seeks to project that entry in the interpretation and application of section 5 sub- section 3 of the central sales tax act. in fact entry 13a as amended supports the argument that even processed or frozen shrimps prawns and lobsters are knumbern companymercially and in the trade as shrimps prawns and lobsters. it is because entry 13a as it stood prior to its amendment would have on the plain natural meaning of the expression shrimps prawns and lobsters included processed and frozen shrimps prawns and lobsters that it became necessary for the state legislature to amend entry 13a with retrospective effect so as to exclude from the scope and ambit of that entry processed or frozen shrimps prawns and lobsters. number when the state legislature excluded processed or frozen shrimps prawns and lobsters from the ambit and companyerage of entry 13a its object obviously was that the last purchases of processed or frozen shrimps prawns and lobsters in the state should number be exigible to state sales tax under entry 13a. the state legislature was number at all companycerned with the question as to whether processed or frozen shrimps prawns and lobsters are commercially the same companymodity as raw shrimps prawns and lobsters or are a different companymodity and merely because the state legislature made a distinction between the two for the purpose of determining exigibility to state sales tax it cannumber be said that in companymercial parlance or according to popular sense processed or frozen shrimps prawns and lobsters are recognised as different companymodity distinct from raw shrimps prawns and lobsters. the question whether raw shrimps prawns and lobsters after suffering processing retain their original character or identity or become a new commodity has to be determined number on the basis of a distinction made by the state legislature for the purpose of exigibility to state sales tax because even where the commodity is the same in the eyes of the persons dealing in it the state legislature may make a classification for determining liability to sales tax. this question for the purpose of the central sales tax act has to be determined on the basis of what is companymonly knumbern or recognised in commercial parlance. if in companymercial parlance and according to what is understood in the trade by the dealer and the consumer processed or frozen shrimps prawns and lobsters retain their original character and identity as shrimps prawns and lobsters and do number become a new distinct commodity and are as much shrimps prawns and lobsters as raw shrimps prawns and lobsters sub-section 3 of section 5 of the central sales tax act would be attracted and if with a view to fulfilling the existing companytracts for export the assessee purchases raw shrimps prawns and lobsters and processes and freezes them such purchases of raw shrimps prawns and lobsters would be deemed to be in companyrse of export so as to be exempt from liability to state sales tax. here in the present case it was number disputed on behalf of revenue that the purchases of raw shrimps prawns and lobsters were made by the appellants for the purpose of fulfilling existing companytracts for export and after making such purchases the appellants subjected raw shrimps prawns and lobsters purchased by them to the process of cutting of heads and tails peeling deveining cleaning and freezing and exported such processed and frozen shrimps prawns and lobsters in fulfilment of the companytracts for export. the only argument raised on behalf of revenue was that the goods which were exported were number the same as the goods purchased by the appellants because raw shrimps prawns and lobsters after processings ceased to be the same companymodity and became a new distinct companymodity. but for reasons which we have already discussed this argument cannumber be sustained. the shrimps prawns and lobsters purchased by the appellants did number lose their original character and identity when they were subjected to processing for the purpose of export.

P. MOHAPATRA, J. One Dattatraya Agnihotri died in April 1961 leaving behind his widow Laxmibai, sons Vishwambhar and Digamber, and daughters, Indumati, Usha, Mangla and Shobha. The suit land was ancestral property in the hands of Dattatraya Agnihotri. At the time of death of their father Vishwambhar and Digmber were minors. Laxmibai was managing the properties left by Dattatraya Agnihotri as guardian of the minors. On 14.11.1967 Laxmibai executed a sale deed in favour of Laxminarayan transferring 4 acres 13 guntas of the suit land for the sum of Rs.6,000/- and delivered possession to the purchaser. Again on 24.10.1974 she executed another sale deed in favour of Vijay Kumar son of Laxminarayan in respect of 4 acres 13 guntas, a part of the suit land for the sum of Rs.9000/- and delivered possession to the purchaser. The sale deeds were executed without any legal necessity and without obtaining permission of the Court as provided under Section 8 of the Hindu Minority and Guardianship Act, 1956 hereinafter referred to as the Act . Digamber attained majority on 5th August 1975 and Vishwambhar became major on 20th July, 1978. Thereafter they filed the suit RCS No.5/81 in the Court of Civil Judge Junior Division Jalna, in the State of Maharashtra impleading the purchasers Laxminarayan and Vijay Kumar as defendants 1 and 2 respectively, their mother Laxmibai as defendant number3 and their sisters, Indumati, Usha, Mangla and Shobha as defendant number. 4 to 7 respectively. The plaintiffs pleaded that the two sale deeds executed by defendant number3 on 14.11.1967 and 24.10.1974 in favour of defendant number.1 and 2 are number binding and operative on the legal rights of plaintiff number1, and prayed that the said sale deeds be set aside to the extent of his share and the suit for possession of the land under survey number515-Area 8 acres 26 guntas situated at Jalna bearing the local name Girdharchamala to the extent of 4/7th share be decreed with companyts against defendant number. 1 and 2 and the plaintiffs be put in actual possession of their share by dispossessing the said defendants from the land, etc. The gist of the case pleaded by the plaintiffs was that their mother as guardian executed the above sale deeds without any legal necessity and without sanction of the Court. The transfers made by her were void ab initio and number binding on the plaintiffs and they are entitled to ignore the same altogether. In para 4 of the plaint it was averred the transaction, therefore, is liable to be treated as of numberlegal validity, right from its inception and the defendant number1 never got any title to it under the law. Averment to the same effect was made in respect of the sale deed dated 24.10.1974 in favour of defendant number2 in paragraph 5 of the plaint. The plaintiffs pleaded that the purchasers are trespassers on the suit land that the plaintiffs have a right to recover possession of the suit land from the purchasers within 12 years which they have done. Reliance was placed on Article 65 of the Limitation Act. In para 7 of the plaint it was asserted that the suit has been filed within the period of limitation with reference to the suit transaction for the relief of recovery of possession by way of partition of the suit land. It is relevant to state here that the relief of declaration that the sale deeds executed by the defendant number3 in favour of defendant number. 1 and 2 are invalid and inoperative and that the said sale deeds be set aside, were added in the plaint subsequently by amendment. The companytesting defendants 1 2 filed written statements pleading, inter alia, that the Hindu Minority and Guardianship Act is number applicable in the case since the alienation has been made by the mother as natural guardian of the minors. She was also the manager of the joint family property. In such a case, according to the defendants, lack of sanction under section 8 of the Act is number fatal to the alienations. The defendants further averred that the alienations were made for legal necessity, for maintenance of the plaintiffs, for meeting the marriage expenses of defendant number. 4 to 7, for satisfying antecedent debts etc. They also took the plea of limitation since the suit was filed beyond 3 years after the minors attained majority. They prayed for dismissal of the suit with companyts. Defendants 3 to 7 supported the case of the plaintiffs. The trial companyrt by judgment dated 6.12.1985 decreed the suit of the plaintiff number1 against the defendants and dismissed the claim of plaintiff number2. The Court declared that the sale deeds are number binding on plaintiff number 1 to the extent of his share in the suit land and that plaintiff number1 is entitled to recover 2 acres 11 guntas as his share from the suit land. Defendants 1 and 2 were ordered to deliver possession of the said property to the plaintiff number1. Being aggrieved by the judgment and decree dated 6.12.1985 the defendants 1 and 2 preferred RCA No.80/1986 in the Court of Additional District Judge, Jalna. The appellate companyrt by the judgment dated 21.6.1995 allowed the appeal and set aside the judgment and decree passed by the trial companyrt and dismissed the suit. Thereafter the plaintiffs filed the second appeal number 350/96 in the High Court of Bombay challenging the judgment and decree of the lower appellate companyrt, which was dismissed summarily holding that numbersubstantial question of law was involved in the second appeal and that there was numbermerit in the second appeal. The said judgment is under challenge in this appeal filed by the plaintiffs and defendant number. 3 to 7 by special leave. The learned companynsel appearing for the appellants companytended that the High Court erred in dismissing the second appeal filed by the plaintiffs. He also companytended that the first appellate companyrt was in error in dismissing the suit for recovery of possession. According to the learned companynsel the Court should have held that in view of the undisputed factual position that the sale deeds were executed without obtaining prior sanction of the District Court and in view of the companycurrent findings of the trial companyrt and the first appellate companyrt that the alienations were number supported by legal necessity the first appellate companyrt should have held that the alienations were void and it was number necessary for the plaintiffs to file a suit to set aside the sale deeds or to declare them invalid. The learned companynsel submitted that the lower appellate companyrt failed to appreciate that Article 60 of the Limitation Act has numberapplication in the case. On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were number supported by legal necessity and without permission of the companypetent companyrt. On that basis the claim was made that the alienations did number affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As numbered earlier, the trial companyrt as well as the first appellate companyrt accepted the case of the plaintiffs that the alienations in dispute were number supported by legal necessity. They also held that numberprior permission of the companyrt was taken for the said alienations. The question is in such circumstances are the alienations void or voidable? In Section 8 2 of the Hindu Minority and Guradianship Act, 1956, it is laid down, inter alia, that the natural guardian shall number, without previous permission of the Court, transfer by sale any part of the immovable property of the minor. In sub-section 3 of the said section it is specifically provided that any disposal of immovable property by a natural guardian, in companytravention of sub-section 2 is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As numbered earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was number there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial companyrt companysidered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of numberavail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff number2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff number1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be companyputed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is companycerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial companyrt dismissing the suit was number challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit companyld number be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate companyrt companyld number have interfered with that part of the decision of the trial companyrt. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated companyld number have been made without setting aside the sale deeds the suit as initially filed was number maintainable. By the date the defect was rectified December, 1985 by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint companyld number companye to the rescue of the plaintiff.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1564 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated May 23, 1968-of the Allahabad High Court in Election Petition No. 40 of 1967. Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant. Veda Vyasa, K. K. Jain, H. K. Puri, G. N. Dikshit, R. N. Dikshit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respondent. The Judgment of the Court was delivered by Hegde, J. This appeal under s. 116A of the Representation, of the People Act, 1951 arises from the decision in Election Petition No. 40 of 1967 on the file of the High Court of Judicature at Allahabad. In that petition the appellant challenged the election of the respondent to the U.P. Legislative Assembly from Iglas Constituency in the general election held in February 1967. In that election the appellant, the respondent and four others companytested. The respondent secured 10,705 votes more than the appellant. Other candidates secured less votes than the appellant. The appellant challenged the election of the respondent on various grounds, most of which were given up either in the trial companyrt or in this Court. The High Court dismissed the election petition. Against that order the appellant has companye up in appeal. Before going into the merits of the appeal, it is necessary to deal with the preliminary objections to the appeal, taken by the respondent. The first objection taken was that the petition was number maintainable as it was number properly presented. The second objection was that the petition ceased to be maintainable as a result of the dissolution of the U.P. Legislative Assembly as per the Presidents Proclamation of April 15, 1968 under Art. 356 1 of the Constitution. That Proclamation was issued during the pendency of this election petition before the High Court. The High Court rejected both those companytentions but those companytentions were again pressed for acceptance at the hearing of this appeal. The High Court has found as a fact that the election petition was presented to the registry by an advocates clerk in the immediate presence of the petitioner. Therefore, in substance though number in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied. We are unable to accept the companytention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held to have become infructuous in view of the dissolution of the assembly. In this proceeding we are companysidering the validity of the election of the respondent and number whether he is companytinuing as a member. If the companytention of the appellant that the respondent was guilty of companyrupt practices during the election is found to be true then number only his election will be declared void, he is also liable to incur certain electoral disqualifications. The purity of elections is of utmost importance in a democratic set-up. No one can be allowed to companyrupt the companyrse of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having been dissolved. The public are interested in seeing that those who had companyrupted the companyrse of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the companytention of Mr. Veda Vyasa. The election petitions in this companyntry are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolution of the Assembly, the companytention of the respondent cannot be accepted. Section 80 provides that numberelection shallbe called in question except by an election petition presented in accordance with the provisions of the Act. Section 81 1 says that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-s. 1 of S. 100 and s. 101 to the High Court, by any candidate at such election or any elector. Section 84 prescribes that a petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Chapter III of Part VI deals with the trial of election petitions. Section 86 1 prescribes that the High Court shall dismiss an election petition which does number companyply with the provisions of s. 81 or s. 82 or s. 117. Section 87 1 says that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Section 97 1 provides for filing recrimination. Section 98 reads At the companyclusion of the trial of an election petition the High Court shall make an order a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Section 99 1 is important for our present purpose. It says At the time of making an order under s. 98 the High Court shall also make an order a where any charge is made in the petition of any companyrupt practice having been companymitted at the election, recordinga finding whether any companyrupt practice has or has number been proved to have been companymitted at the election and the nature of that companyrupt practice and the names of all persons, if any, who have been proved at the trial to have been guilty of any companyrupt practice and the nature of that practice emphasis supplied . Chapter IV of Part VI deals with withdrawal and abatement of election petitions. Section 109 stipulates that an election petition may be withdrawn only by the leave of the High Court and where an application for withdrawal is made numberice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette. Section 112 says An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners. Where an election petition abates under sub-s. 1 the High Court shall cause the fact to be published in such manner as it may deem fit. Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon companypliance with the companyditions, if any, as to security, shall be entitled to be so substituted and to companytinue the proceedings upon such terms as the High Court may deem fit. Section 1 1 6 reads If before the companyclusion of the trial of an election petition, the sole respondent dies or gives numberice that he does number intend to oppose the petition or any of the respondents dies or gives such numberice and there is numberother respondent who is opposing the petition, the High Court shall cause numberice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to companytinue the proceedings upon such terms as the High Court may think fit. From the above provisions it is seen that in an election petition, the companytest is really between the companystituency on the one side and the person or persons companyplained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does number entirely rest with the petitioner. The reason for the elaborate provisions numbericed by us earlier is to ensure to the extent possible that the persons who offend the election law are number allowed to avoid the companysequences of their misdeeds. The law relating to withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or number we cannot travel outside the provisions companytained in that Chapter. There is numberprovision providing for the dropping of an election petition for any reason other than those mentioned therein. The act does number provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. As the law relating to abatements and withdrawal is exhaustively dealt with in the Act itself numberreliance can be placed on the provisions of the Civil Procedure Code number did the learned Counsel for the respondent bring to our numberice any provision in the Civil Procedure Code under which the election petition clan be held to have abated. In support of his companytention that the petition has abated great deal of reliance was placed by Mr. Veda Vyasa on the decision in ,Carter and Anr. v. Mills 1 . Therein a pending election petition was allowed to be withdrawn on the dissolution of the Parliament. In doing so Coleridge, C.J. observed thus I am of opinion that this application should be granted. The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial companynizance, a case has arisen number expressly provided for in the Act and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject. It is companymon knowledge, that according to the old practice the petition abated or dropped in such a case. We think the result is the same number, and that we therefore have authority, and ought to make an order for the return of the deposit. 1 9, Common Pleas p. 117. Keating, J., the other judge agreed with the learned Chief justice. We do number know the facts of that case. It is number known whether the election of the returned candidate was challenged on the ground of any companyrupt practice. The decision in that case rested solely on the old parliamentary practice on the subject. We have numbersuch practice in this companyntry. That being so that decision is of numberassistance for our present purpose. In Ghasi Ram v. Dal Singh and Others 1 this Court proceeded on the basis that the dissolution of the assembly does number put an end to the election petition. For the reasons already mentioned we think that the High Court was right in its companyclusion that the election petition had number abated. This takes us to the merits of the case. As mentioned earlier the election of the respondent was challenged on numerous grounds. On the pleadings as many as 10 issues were raised. At present we are companycerned only with issues Nos. 7, 8 and 10. The only question arising under issue No. 7 is whether Exh. 7, was got printed and published by the respondent. So far as the question of getting it prepared and printed is companycerned, the evidence principally relied on is that of W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statement. He appears to have been on the side of the respondent at one stage and walked over to the side of the appellant at a later stage, number uncommon during election time. His evidence does number carry companyviction. On his own showing he can be a stooge. In support of the evidence of P.W. 16 reliance was placed on Exh. D-23, one of the vouchers submitted by the respondent along with his return of election expenses. That voucher relates to the printing of two pamphlets on behalf of the respondent. It shows that one of the pamphlet mentioned therein was printed on both sides of the paper. Exh. 7 is also printed on both sides of a paper. From that we are asked to companyclude that the voucher in question refers to printing of pamphlets like Exh. 7. Such an inference would be a far fetched one. According to the respondent D-23 relates to pamphlets similar to Exh. A-154 and A-155. The High Court has number accepted that companytention. The basis on which the High Court rejected that companytention does number appear to us to be companyrect. It is number necessary to go into that question as we are of opinion that there is numbersatisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the companyplaint given by the appellant to the Returning Officer. The appellant 1 1968 3S.C.R 102. has companysiderable experience of filing election petitions. This was. the third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition. The evidence of P.W. 7, Narayan Singh Bodh throws a great deal of light on this aspect. Large number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others. Their evidence has been companysidered by the High Court in detail and rejected. We have been taken through that evidence and we were number impressed by the same. We are satisfied that the High Court has companyrectly assessed, that evidence. Generally, this Court accepts the findings of fact arrived at by the High Court. Election petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave evidence. Hence their appreciation. of evidence is entitled to great weight. We have number been shown any good reason for departing from that rule. Now companying to issue No. 8 which relates to the companyplaint of the appellant that the respondent, his agents and workers had hired several vehicles for companyveyance of the voters to and from the polling stations. In the petition, particulars of as many as twelve vehicles which were said to have been used for companyveying voters. were given. But the appellants learned Counsel companyfined his arguments to three vehicles only i.e. Truck No. USK 503, Bus. No. RJL 9729 and a Tractor. So far as Truck No. USK 503 is companycerned, the witnesses. who were examined are P.Ws. 37, 40, 41, 45 and 48. Among them the most important witness is P.W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from Achaltar truck operators Union Hathras. It is number definitely established and that evidence was. number challenged before us that in Hathras there was numberconcern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the companytention of Mr. Latifi, learned Counsel for the appellant that the name of companycern in question was wrongly mentioned by the witness due to some companyfusion. The fact that P.W. 45 at one stage worked for the respondent is number of much significance. Changing sides during election is numberhing unusual. Once the evidence of P.W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is companymon knowledge that in the trial of election petitions there would be numberdearth of witnesses. The faction spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the companyplaint given by the appellants agent to the polling officer Exh. 18 . That document has several suspicious features which were numbericed ,by the High Court. Now companying to the tractor, its registration No. was number spoken to by any witness. There is numberevidence about its hiring. The witnesses whospeak to its user are P.Ws. 33 and 34. The evidence of P.W. 33 is extremely vague. He deposed that a worker,of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P.W. 34 is an omnibus witness. The evidence relating to owner ,of that tractor is companyflicting. The evidence of P.Ws. 33 and 34 does number carry companyviction. It was rightly number relied on by the High Court. Now companying to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has number been examined. The evidence of P.Ws. 30, 31 and 32 who speak to the companyveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did number ,commend itself to the trial companyrt. We agree with the High Court that it is unsafe to rely on their evidence. This takes us to issue No. 10 which relates to the companyplaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this companynection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were number pressed at the hearing. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for companyveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that companysiderable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had number been included in the return of expenses. Their evidence has number been believed by the trial companyrt. We have been taken through the evidence and we do number think it is creditworthy number are we able to place any reliance on the documents produced in that companynection. In the result this appeal fails and the same is dismissed with companyts.

WITH CIVIL APPEAL Nos. 8253 AND 8255 OF 2004 K. THAKKER, J. Appeals admitted. All the above three appeals raise an interesting and important question of law as to interpretation of Section 81 of the Representation of the People Act, 1951 hereinafter referred to as the Act . In all these appeals, facts are more or less similar. The Election Commission of India issued a numberification on March 16, 2004 for holding general election to the Legislative Assembly for the State of Sikkim. Total companystituencies were 32. A programme was published which provided various stages of election. April 23, 2004 was the last date for filing numberination papers, April 24, 2004 was fixed for scrutiny of numberination papers, April 26, 2004 was the last date for withdrawal of candidatures, May 10, 2004 was the date of poll, if necessary, and date of companynting and declaration of results was fixed as May 17, 2004. The appellants filled in their numberination papers from 12-Wak Assembly Constituency, 14-Melli Assembly Constituency and 13- Damthang Assembly Constituency respectively on April 23, 2004. When numberination papers were scrutinized on the next date, i.e. April 24, 2004, they were found to be defective and hence all their numberination papers were rejected. The resultant effect was that on April 26, 2004 which was the last date for withdrawal of candidature, in all the three above companystituencies, only one candidate was in the field. The Returning Officer, therefore, declared the first respondent in all the matters elected un-contested . In respect of other companystituencies, however, polling was held on May 10, 2004 and after companynting of votes, results were declared on May 17, 2004. All the three appellants filed Election Petitions in the High Court of Sikkim Election Tribunal on June 25, 2004. Notices were issued to the respondents-returned candidates and they appeared. A preliminary objection was raised by the returned candidates as to maintainability of petitions on the ground of limitation. It was companytended that in accordance with the provisions of Section 81 of the Act, an election petition companyld be presented calling in question any election of a successful candidate within a period of forty-five days from the date of election of the returned candidate. Since the returned candidates were declared elected un-contested on April 26, 2004, election petitions companyld be filed only within a period of forty-five days from that date, i.e. April 26, 2004. Petitions were admittedly filed on June 25, 2004 and thus they are barred by limitation. The case of the election-petitioners, on the other hand, was that date of poll was May 10, 2004 and date of publication of results of election under Section 73 of the Act was May 17, 2004. For all material purposes, therefore, relevant date was May 17, 2004 and number April 26, 2004 and in view of that fact, election petitions were within limitation. Considering the companytroversy between the parties and a preliminary objection regarding maintainability of petitions on the ground of limitation, the High Court raised a preliminary issue as under Whether the election petition is barred by the law of limitation as prescribed under Section 81 of the Act? The High Court then heard the learned companynsel for the parties, companysidered the relevant provisions of the Act and other laws, referred to the decisions cited at the Bar and held that the relevant date of companymencement of limitation for the purpose of challenging the election of returned candidates un-contested was April 26, 2004 and number May 17, 2004 as companytended by the electionpetitioners. Election petitions were, therefore, barred by limitation. The High Court, accordingly, dismissed all the petitions with companyts. Being aggrieved by the order passed by the High Court, all the appellants have filed these appeals under Section 116A of the Act. Notice was issued on January 6, 2005. The appeals were also ordered to be posted for hearing. We have heard learned companynsel for the parties. The learned companynsel for the appellants submitted that the High Court has companymitted an error of law in dismissing election petitions filed by the appellantselection-petitioners on the ground of limitation. He submitted that reading of the relevant provisions of the Act makes it abundantly clear that extended period of limitation is provided in Section 81 of the Act and petitions filed by the appellants-petitioners were within the period of limitation. It was also submitted that the present cases are governed by the second part of Section 81 of the Act and number the first part of the said provision and High Court erroneously held that the period of limitation would start from declaration of returned candidate on April 26, 2004. The companynsel alternatively argued that even if two interpretations are possible, the one which would enable the Election Tribunal High Court to companysider and decide the case on merits would be preferred to another interpretation which would numbersuit the election-petitioners holding the petitions to be barred by time. It was, therefore, submitted that the order passed by the High Court deserves to be set aside by allowing these appeals and remitting all petitions to the High Court, to treat them within time and to decide them in accordance with law. The learned companynsel for the respondents-returned candidates, on the other hand, supported the order passed by the High Court. He submitted that the High Court was wholly justified in dismissing the petitions and in interpreting the relevant provisions of the Act and in particular, Section 81 thereof. According to him, the relevant date for filing an election petition would be the date of declaration of returned candidate and once such declaration was made on April 26, 2004, the limitation began to run from that date and the defeated candidates were required to institute election petitions within fortyfive days from that date. Admittedly, petitions were filed on June 25, 2004 and hence, they were rightly held barred by limitation. It was also submitted that companysidering the relevant provisions of law, the amendments made in the Act in 1956 and 1961, the reasoning and companyclusion of the High Court cannot be faulted with and the appeals deserve to be dismissed. Our attention has been invited by the learned companynsel for the parties to the relevant provisions of the Act as also of other laws. Before we deal with the respective companytentions of the learned companynsel for the parties, it would be appropriate if we refer to the relevant provisions of the Act. The Preamble of the Act declares that the Act has been enacted to provide for the companyduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the companyrupt practices and other offences at or in companynection with such elections and the decision of doubts and disputes arising out of or in companynection with such elections. Section 2 is a legislative dictionary and defines various terms. It, however, starts with a caveat and declares that the definition in the said section would prevail unless the companytext otherwise requires. Clause d of sub-section 1 of Section 2 defines election as election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State. Sub-section 2 of Section 2 enacts that for the purposes of the Act, a Parliamentary companystituency, an Assembly companystituency, a Council companystituency, a local authorities companystituency, a graduates companystituency and a teachers companystituency shall be treated as a companystituency of a different class. Part II deals with qualifications and disqualifications of membership of Parliament and of State Legislatures. Part III provides for issuance of numberification for general elections. Section 15 deals with numberification for general election to a State Legislative Assembly. Part V relates to companyduct of elections. Chapter III thereof titled General procedure at elections relates to cases where there is companytest as also number-contest. Section 53 which is relevant reads thus Procedure in companytested and uncontested elections. 1 If the number of companytesting candidates is more than the number of seats to be filled, a poll shall be taken. If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats. If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the Election Commission shall by numberification in the Official Gazette call upon the companystituency or the elected members or the members of the State Legislative Assembly or the members of the electoral companylege companycerned, as the case may be, to elect a person or persons to fill the remaining seat or seats. Provided that where the companystituency or the elected members or the members of the State Legislative Assembly or the members of the electoral companylege having already been called upon under this subsection, has or have failed to elect a person or the requisite number of persons, as the case may be, to fill the vacancy or vacancies, the Election Commission shall number be bound to call again upon the companystituency, or such members to elect a person or persons until it is satisfied that if called upon again, there will be numbersuch failure on the part of the companystituency of such members. Sections 54 and 63 which provided procedure at elections in companystituencies which included reserved seats and method of voting at such elections were subsequently repealed. We will deal with that aspect at an appropriate stage. Chapter IV of the said part relates to poll. Chapter V deals with Counting of votes. Section 64 states that at every election where a poll is taken, votes shall be companynted by or under the supervision and direction of, the Returning Officer, and each companytesting candidate, his election agent and his companynting agents, shall have a right to remain present at the time of companynting. Section 66 enacts that when the companynting of the votes has been companypleted, the Returning Officer shall, in the absence of any direction by the Election Commission to the companytrary, forthwith declare the result of the election in the manner provided by the Act or the Rules made under the Act. Section 67 requires the Returning Officer to report the result to the appropriate authority and the Election Commission and the appropriate authority would cause to be published in the Official Gazette the declaration companytaining the names of the elected candidates. Section 67A is also material and reads as under 67A. Date of election of candidate.For the purpose of this Act, the date on which candidate is declared by the returning officer under the provisions of section 53, or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate. Section 73 of the Act enjoins upon the Election Commission to issue numberification after declaration of result of elections in all companystituencies upon which the House is deemed to have been duly companystituted. Part VI relates to Disputes regarding elections. Section 80 prohibits questioning of election except by way of election petition. Under Section 80A, it is the High Court which can try the election petitions. Section 81 provides for presentation of the election petition and prescribes the period of limitation. Sub-section 1 thereof is material which this Court is called upon to interpret and may be quoted in extenso. Presentation of petitions. 1 An election petition calling in question any election may be presented on one or more of the grounds specified in sub-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 dates of their election are different, the later of those two dates. The learned companynsel for the appellants companycedes that Section 81 of the Act prescribes period of limitation and also mandates that an election petition calling in question any election either by a candidate or by any elector should be filed within a period of forty-five days from the date of election of returned candidate. The companynsel also companycedes that in all the three cases, the returned candidates were declared elected un-contested on April 26, 2004 and companysidering the said date, election petitions filed on June 25, 2004 were barred by limitation. But the argument of the learned companynsel is that where there are more than one returned candidate at the election and the dates of their election are different, Section 81 also gives option to a candidate or an elector to present such petition within forty-days from the last date on which one of the candidates has been declared elected. According to the companynsel, admittedly the numberification for general election to the Legislative Assembly for the State of Sikkim issued by the Election Commission expressly stated that there were 32 companystituencies for the Legislative Assembly for the State of Sikkim and election was to be held for all those companystituencies. The companynsel stated that except in three companystituencies wherein the candidates were declared elected un-contested , in rest of the companystituencies, elections were held and voting was companypleted only on May 10, 2004. Results in those companystituencies were declared on May 17, 2004. Election Petitions under the second part of Section 81, therefore, companyld be filed within forty-five days from May 17, 2004. Considering that date, election petitions were within the period of limitation. It was also submitted that the limitation cannot run prior to the date of declaration of result of elections under Section 73 of the Act inasmuch as the election process companyld number be said to have companye to a final halt until a declaration as required therein is made so as to attract the bar companytained in Article 329 b of the Constitution. We have already reproduced Section 81 of the Act. It lays down the period of limitation for filing an election petition. Admittedly, it is in two parts. The first part provides that an election petition calling in question any election companyld be filed by a candidate or an elector within forty-five days from the date of the election of the returned candidate. The second part of the section companyers those cases where there are more than one returned candidate at the election and the dates of their elections are different. In such cases, the later of the two dates would be the starting point of limitation for the purpose of filing an election petition. The learned companynsel for the returned candidates submitted, and in our opinion rightly, that the second part of Section 81 does number deal with election to Legislative Assembly or to the House of People Lok Sabha , but to Legislative Council of State or to Council of States Rajya Sabha . That part speaks of more than one returned candidate at the election which is an eventuality only in the election of Legislative Council of State or Council of States where at a single election by the same electorate more than one candidate companyld be elected. In this companynection, the learned companynsel for the respondents drew our attention to Articles 80 and 171 of the Constitution. Whereas Article 80 deals with companyposition of Council of States, Article 171 relates to Legislative Councils of States. Clause 4 of Article 171 enacts that the members to Legislative Councils of States would be elected in accordance with the system of proportional representation by means of single transferable vote. Part VII of the Conduct of Election Rules, 1961 hereinafter referred to as the Rules also deals with the manner of companynting of votes at such election. Rules 76 to 81 clearly provide that as soon as a candidate secures the required quota of votes, he will be declared elected and surplus votes will be transferred in favour of remaining candidates as indicated in the ballot papers as being next in order of preference by the elector. By such process, the required number of candidates to be elected will be declared one by one. Thus, for instance, if five candidates are to be elected in an election to the Council of States Rajya Sabha from a particular Legislative Assembly of a State, the dates on which they would be elected might be different because of the time required to companynt the preference of votes exercised by electors. No such situation, however, will arise in case of election to a Legislative Assembly of a State or House of the People. The learned companynsel also referred to the relevant provisions of the Act as they originally stood in 1951 and the amended provisions after the Representation of the People Second Amendment Act, 1956 Act 27 of 1956 and the Representation of the People Amendment Act, 1961 Act 14 of 1961 . Section 81 of the Act as it originally stood prior to the Amendment Act, 1956 did number expressly provide period of limitation for filing an election petition. It, however, provided that an election petition calling in question any election companyld be presented in such form and within such time as may be prescribed. The word prescribed was defined as prescribed by the rules made under the Act. Parliament, however, thought it fit to prescribe the period of limitation. By the Amendment Act, 1956, therefore, it amended Section 81 by expressly providing the period of limitation of forty five days from the date of election of the returned candidate. To avoid any doubt and to make the position explicitly clear as to what should be the date on which a candidate can be said to have been declared elected, Parliament also inserted Section 67A clarifying that the date on which the candidate is declared elected by the Returning Officer would be the date of election of that candidate. It is also necessary to bear in mind that Section 53 of the Act provides that if the number of candidates is equal to number of seats to be filled, the Returning Officer is required to forthwith declare such candidates to be duly elected and only in the event of companytest, poll would be held. Section 66 companyers those cases where poll is felt necessary and requires the Returning Officer to declare the result of the election forthwith after companynting of votes. The companynsel also submitted that Section 54 of the Act, as originally enacted, dealt with elections in companystituencies where more than one candidate was to be elected. Section 63 laid down method of voting at such election, i.e. voting in plural member companystituencies. Section 8 2 of the Delimitation Act, 1952 expressly enacted that all companystituencies shall be either single member companystituencies or two member companystituencies. It further stated that in every two-member companystituency, one seat shall be reserved either for the Scheduled Castes or for the Scheduled Tribes and the other seat shall number be so reserved. It is in the light of those provisions that the provision for limitation companytemplated two types of cases. In a two-member companystituency, the dates on which candidates were declared elected might be different. Such a case came up for companysideration before the Constitution Bench of this Court in V.V. Giri v. Suri Dora Others, 1960 1 SCR 425 AIR 1959 SC It related to Parvatipuram Lok Sabha companystituency in Andhra Pradesh which was a two member companystituency in which one seat was reserved for Scheduled Caste candidate and other was kept numberreserved general. At such election, if there is only one candidate for the reserved seat Scheduled Caste , obviously he would be declared elected as against such reserved seat as soon as the date of scrutiny is over and on the date of withdrawal, there is number more than one candidate. But for the other seat, i.e. number-reserved general seat, if there are more than one candidate after the date of withdrawal, poll will be held and result will be declared only after companynting of votes. In such cases, the later part of Section 81 of the Act would apply and the benefit of extended period of limitation can be claimed by the election petitioner. Section 54 of the Act was, however, deleted by the Amendment Act, 1961. Consequently, Section 63 also was deleted by the same Amendment Act. Likewise, the Delimitation Act, 1972 provided readjustment of the allocation of seats in the House of People and Legislative Assembly in each State. Section 9 1 of the said Act required the Delimitation Commission to distribute seats in the House of People Lok Sabha allocated to each State and seats assigned to Legislative Assembly of each State to single member territorial companystituencies and delimit them on the basis of latest census figures having regard to the provisions of the Constitution. It also provided for reservation of seats for Scheduled Castes and Scheduled Tribes. We numberlonger have multi-member companystituencies. It may also be appropriate to refer to sub-section 3 of Section 4 and sub-section 2 of Section 7 of the Representation of the People Act, 1950 as amended in 1975 and 1980. Sub-section 3 of Section 4 states that every Parliamentary Constituency shall be a singlemember companystituency. Likewise sub-section 2 of Section 7 declares that every Assembly Constituency shall be a single-member companystituency. In view of the above provisions, in our companysidered opinion, the second part of Section 81 cannot apply to any election to a Legislative Assembly, but it would apply only to Legislative Council of a State or Council of States. The High Court was, therefore, right in holding that the relevant date for calculation of the period of limitation was the date of election of the returned candidate and an election petition ought to be filed within forty-five days from such date. It was urged that the expression election has been defined in the Act as an election to fill a seat or seats in either House of the Legislature of a State and when the said expression is used in Section 81, it would have the same meaning and it would include election to all companystituencies in the State. We are unable to uphold the argument. It is true that the term election in Section 2 d defines as election to fill a seat or seats in either House of Parliament or either House of the Legislature of a State. But it must be remembered that the Act deals with election of both the Houses of Parliament and State Legislatures and defines the expression election. Moreover the opening words of Section 2 are unless the companytext otherwise requires. Hence, while companystruing, interpreting and applying the definition clause, the Court has to keep in view the legislative mandate and intent and to companysider whether the companytext requires otherwise. As already observed earlier, Section 81 which is in two parts deals with different situations. The first part applies to a Legislative Assembly while the second part applies to a Legislative Council. The learned companynsel for the respondent rightly relied on the following observations of the High Court of Kerala in P.R. Francis v. A.V. Aryian, AIR 1968 Ker 252 Under Section 81 of the Act, an election petition calling in question any election may be presented by any candidate at such election or any elector and Section 80 prohibits an election being called in question except by an election petition presented in accordance with Section 81. Election in this companytext means number the general election or the entirety of the elections held in the State, but one election held in one companystituency. A challenge to the entirety of elections held in the State is therefore within the taboo of Section 80 of the Act. emphasis supplied Upholding of submission that the limitation for filing an election petition should be reckoned number with reference to the date on which the candidate whose election is challenged was declared elected, but with reference to the date on which the last candidate was declared elected at a general election would number only make the provision cumbersome and companytrary to the provisions of the Act, particularly against the scheme of amendments introduced in 1956 and 1961 but would also make the starting point of limitation uncertain, indefinite and fluctuating. Such companystruction would require companyplete details of all returned candidates of Legislative Assembly of a State. Moreover, where the challenge is to an election of a Member of House of People Lok Sabha , full particulars in different companystituencies throughout the companyntry must be before the Election Tribunal High Court . The Tribunal also is bound to inquire into such particulars with a view to ascertaining whether the election petition filed by the petitioner is or is number within the period specified in Section 81 of the Act. Again, in case of dispute or companytest on the issue of limitation, the Election Tribunal is required to call for and inspect records of all companystituencies. Unless companypelled, a companyrt of law would number interpret a provision in such a way which would frustrate legislative intent and make the provision unworkable and impracticable. Finally, the interpretation sought to be suggested by the respondents is otherwise reasonable, just and equitable inasmuch as it has nexus with the cause of action. When a defeated candidate or an elector has grievance against an act of declaring a particular candidate successful at the election, his cause of action arises as soon as such declaration is made. He, therefore, can challenge that act. He is number companycerned with other companystituencies or candidates. He cannot be allowed to join his cause of action with declaration of results in other companystituencies or returned candidates in those companystituencies.

F. Nariman, J. Leave granted. The present appeals are filed against the judgment of a Single Judge of the Bombay High Court dated 07.01.2019, by which four final awards made by a sole arbitrator in London under the London Court of International Arbitration Rules 2014 hereinafter referred to as the LCIA Rules were held to be enforceable against the Appellants in Signature Not Verified Digitally signed by SUSHMA KUMARI BAJAJ Date 2020.02.13 India. 164542 IST Reason The brief facts of this case are as follows. The Appellants, i.e. Appellant No.1 Shri Vijay Karia, and Appellants No.2 to 39 who are represented by Appellant No.1 are individual, number-corporate shareholders of Ravin Cables Limited hereinafter referred to as Ravin . On 19.01.2010, the Appellants and Ravin entered into a Joint Venture Agreement hereinafter referred to as JVA with Respondent No.1, i.e. Prysmian Cavi E Sistemi SRL a companypany registered under the laws of Italy. By this JVA, Respondent No.1 acquired a majority shareholding 51 of Ravins share capital. The material clauses of the JVA are set out hereinbelow Purpose and Objectives 8.1 Purpose of the Company and Scope of the Agreement Subsequent to Closing, the Company shall be a joint venture between Prysmian and the Existing Shareholders for the purposes of undertaking and companyducting the business of the companypany, or for such other activities as may be determined by the Shareholders from time to time, subject to the applicable law. The business of the companypany shall be companyducted in the best interests of the Company, and in accordance with sound professional and companymercial principles. 12.6. Chairman and Managing Director 12.6.1 Mr. Karia shall be the Chairman of the Board as well as the Managing Director of the Company until Expiry of seven 7 years from the Agreement Date or The date of which the Existing Shareholders cease to hold in the aggregate at least ten percent 10 of the share capital of the Company Whichever occurs earlier. It is hereby agreed that Mr. Karia shall number, during such term, be entitled to be removed as a Chairman and Managing Director by the passing of an ordinary resolution at a general meeting of the Company 12.6.4. Without prejudice to the aforesaid clause 12.6.3, the Managing Director shall companytinue to remain responsible for the day to day management of the Company in accordance with the Interim Period Policy adopted by the Board on the Closing Date, until the appointment of the CEO of the Company Interim Period 12.6.5 As soon as practicable after the efflux of the Interim Period, a Board shall be companyvened to resolve upon a new policy, applicable for a period of 6 six months thereafter the Integration Period , for the delegation of the powers to the managers of the Company the Delegation of Powers Policy all powers number delegated to the managers of the Company pursuant to such Delegation of Powers Policy, shall be delegated jointly to the CEO and the Managing Director 12.6.6 Provided however, that subject to the overall supervision of the Board, after the efflux of the Integration Period, the Managing Director shall be directly responsible solely for managing the internal audit as well as the strategy and business development of the Company and present to the Board his findings and analysis for final determination by the Board. Accordingly all the powers which are number delegated to the managers of the Company pursuant to the Delegation of Powers Policy, as may be amended by the Board from time to time, shall be delegated to the Managing Director to the extent such powers fall within his duties as aforesaid. 12.6.7 After the Integration Period, the Managing Director may appoint an internal auditor to assist the Managing Director in his responsibility towards the internal audit of the companypany. This internal auditor shall report directly to the Managing Director and functionally report to the internal audit department of Prysmian S.P.A. 12.7 Chief Executive Officer 12.7.1 The CEO shall be appointed by and shall directly report to the Board. 12.7.2 Without prejudice to the aforesaid Clause 12.7.1, the CEO shall from the date of its appointment till the efflux of the Integration Period, be responsible for the day to day management of the Company jointly with the Managing Director. 12.7.3 Provided however, that subject to the overall supervision of the Board, after the efflux of the Integration Period, the CEO shall be responsible for the day to day management of the Company excluding solely the internal audit and the strategy and business development of the Company for which the Managing Director shall be responsible. Accordingly all the powers which are number delegated to the managers of the Company pursuant to the Delegation of Powers Policy, as may be amended by the Board from time to time, shall be delegated to the CEO to the extent such powers fall within his duties as aforesaid. PROCEDURE FOR FAIR MARKET VALUATION 17.1 Notwithstanding anything companytained in this Agreement, all references in this Agreement to Fair Market Value shall be the fair market value as determined, applying the definition of EBITDA, Net Financial Indebtedness NFI and Net Working Capital NWC set forth under Schedule X, by any one of the following four accounting firms settled in India KPMG Ernst Young PriceWaterhouseCoopers Deloitte 17.2 The accounting firm shall be chosen from among those indicated under clause 17.1 above by the Party that, according to clauses 23 and 24, is called by the other Party to sell, in whole or in part its share participation in the Company to the other Party or by the Party that, according to Clauses 11.5 iv , 16 and 23, calls the other Party to buy, in whole or in part, its share participation in the Company in either case the Exiting Party . If the Exiting Party fails to choose the accounting firm within thirty 30 calendar days from i the receipt of the numberice by which the other Party has intimated it to sell, in whole or in part, its share participation in the Company to the other Party or ii from the serving of numberice to the other Party to buy, in whole or in part, its share participation in the Company, then the accounting firm shall be chosen by the Party the Non-Exiting Party that called the other Party to sell, in whole or in part, its share participation in the Company to the other Party or was called by the Exiting Party to buy, in whole or in part, the Exiting Partys share participation in the Company. Mutual Covenants and Undertakings xxx xxx xxx 20.1.2 The Parties further agree to companyperate and act in good faith, fairness and equity as between themselves. Business in India 21.1 The Parties agree that neither Prysmian number Mr. Karia, whether directly or through their Affiliates, shall invest, acquire or participate in the Cable Business in India, save and except through the Company in accordance with this agreement. 21.5 Further, it is agreed that, within March 31,2011, the Promoters shall either stop or cease to have any interest in any activity they are currently or will be companyducting in India, directly or indirectly through any Affiliates, which is in companypetition with the business of the Company. Such ceased activities shall then number be offered by Mr. Karia to the Company, pursuant to Clause 21.2 for a period of three years from the date of such cessation. For the sake of clarity, it is agreed that this Clause 21.4 shall apply, without being limited, to the activities carried out by i Vijay Industrial Electricals, a companypany incorporated under the laws of India and having its registered office at 302, Akruti Trade Centre, Third Floor, Road n. 7, MIDC, Marol, Andheri east Mumbai-400093 ii Special Cable Industries, a companypany incorporated under the laws of India and having its registered office at A-1/404 GIDC Estate, Ankleshwar 393002. Event of Default 23.1 If any party Defaulting Party is in material breach of any provisions, obligations, companyenants, companyditions and undertakings under this Agreement , or in the event of insolvency or bankruptcy of the Defaulting Party or if the substantial undertaking or assets of the Defaulting Party is under receivership or any other equivalent status, it shall be companysidered as an event of default Event of Default . 23.2 In such an event, the other party Non Defaulting Party may give numberice of the same Determination Notice to the Defaulting Party. 23.3 The Defaulting Party shall have a period of 60 sixty calendar days from the receipt of the Determination Notice or Such further period as the Non Defaulting Party may agree in writing to rectify the Event of Default Rectification Period . It is hereby clarified that this clause 23.3 is number applicable if the Event of Default is represented by the insolvency or bankruptcy of the defaulting Party in which case the Non Defaulting Party may forthwith serve the EOD Notice to the Defaulting Party. 23.4 If upon expiry of the Rectification Period, the Event of Default has number been so rectified the Non Defaulting Party may require the Defaulting Party by written numberice EOD Notice to either i sell to the Non Defaulting Party or such other Person as may be numberinated by the Non Defaulting Party, all , but number less than all, the Shares held by the Defaulting Party Defaulting Party Shares at the 10 ten percent discount to the Fair Market Value Discounted Price or ii buy from the Non Defaulting Party all, but number less than all, the Shares held by the Non Defaulting Party at 10 ten percent over the Fair Market Value Premium Price . The Defaulting Party shall be then under the obligation to either I sell all, but number less than all, its Shares in the Company within 30 thirty calendar days of the EOD Notice or II buy all, but number less than all, the Non Defaulting Party Shares in the Company within 30 thirty calendar days of the EOD Notice, as the case may be. 23.5 It is hereby agreed that 23.5.1 If Prysmian is the Defaulting Party, then Mr. Karia only and number the Existing Shareholders will be entitled to either a buy all but number less than all Prysmian Shares at the Discounted Price or b sell to Prysmian all but number less than all its own shares and those of the Existing Shareholders at the Premium Price. 23.5.2 If Mr. Karia or any of the Existing Shareholders is the Defaulting Party, then Prysmian will be entitled to either a buy all but number less than all the Shares held by Mr. Karia and Existing Shareholders at the Discounted Price or b sell to Mr. Karia all but number less than all its own shares at the Premium Price. For sake of clarity, the Parties agree that for the purpose of this Clause 23.5 any reference to Mr. Karia Shares, Prysmian Shares and Existing Shareholders Share shall be deemed to include any Shares transferred to any or their respective Affiliates pursuant to the provisions of Clause 10.4 above. ARBITRATION 27.1 Dispute Resolution 27.1.1 The Parties agree to use all reasonable efforts to resolve any dispute under, or in relation to this Agreement quickly and amicably to achieve timely and full performance of the terms of this Agreement. 27.1.2 Any dispute, companytroversy or claim arising out of or relating to or in companynection with this Agreement including a dispute as to the validity or existence of the Agreement or the arbitration agreement, or any breach or alleged breach thereof, shall be settled exclusively by arbitration under the Rules of Arbitration of the London Court of International Arbitration LCIA as amended from time to time. 27.1.3 The arbitral tribunal Tribunal shall companysist of one 1 arbitrator, to be appointed by the LCIA. The arbitrator shall be from a neutral nationality, i.e. from a nationality and origin other than any of the Parties. 27.1.4 The seat of the arbitration shall be London, United Kingdom. 27.1.5 The language to be used in the arbitration shall be English. 27.1.6 The law applicable and governing the arbitration agreement proper law of the arbitration agreement and in all respects including the companyduct of the proceedings shall be English Law. If the Institution above named ceases to exist or is unable for any reason to administer the arbitration proceedings then the arbitration shall be companyducted in accordance with the English Arbitration ACT 1996 as amended from time to time or any statute that may replace the said Act. 27.1.7 Parties expressly agree that Part I of the Indian Arbitration and Conciliation Act, 1996 as amended from time to time and any statutory enactment thereof shall have numberapplication to the arbitration agreement or the companyduct of arbitration or to the setting aside of any award made there under, and the provisions of Part I including the provisions of section 9 of the Arbitration and Conciliation Act, 1996 is hereby expressly excluded. 27.1.9 The arbitration award the Award shall be final and binding on the Parties. 27.1.10 The companyrts of London United Kingdom shall have exclusive jurisdiction in respect of all matters arising in companynection with the arbitration and Existing Shareholders submits to the jurisdiction of the said companyrts. Provided however that the Award may be enforced in any appropriate jurisdiction. If to be enforced in India the Award shall be a foreign award to which the legislative provisions incorporated in the applicable Indian Act to give effect to the New York Convention on foreign arbitral awards 1958 the New York Convention shall apply currently Part II of the Indian Arbitration and Conciliation Act 1996 By a separate Control Premium Agreement of the same date, Respondent No.1 paid 5 million to the Appellants as companytrol premium for the acquisition of the share capital of Ravin. On 10.08.2010, pursuant to clause 12 of the JVA - as the interim period of six months under the JVA had companye to an end - one Mr. Luigi Sarogni was appointed as CEO of Ravin by Respondent No.1. Until the expiry of the integration period, Ravin was to be jointly managed by the said CEO and the Managing Director for another period of six months. Factually, however, we are informed that the said integration period carried on beyond December 2010 and companytinued until September 2011. In April 2011, Mr. Giancarlo Esposito was designated by Respondent No.1 as the H.R. Director of Ravin. On 15.09.2011, the Board of Directors of Ravin companyferred exclusive powers of the day to day management of the companypany on the CEO so appointed by Respondent No.1. It is the case of Respondent No.1 that the appointed CEO was thwarted in jointly managing the companypany during this integration period, as a result of which, in November 2011, one Ms. Cinzia Farise was appointed as CEO in the place of Mr. Sarogni by the Board of Directors. Since the Board Resolution of 01.11.2011 companyferred on Ms. Farise the power to employ and lay-off permanent staff, she imposed a temporary freeze and check on new hiring without her approval, which was alleged to be breached by the Appellants. Later, from December 2011 till February 2012, Ms. Farise sought to companyvene a board-meeting to finalise one Mr. Brunettis appointment as CFO of Ravin, which was assented to by the Respondents Directors, but number signed by the Appellants Directors. Things reached a head on 31.01.2012 when the employees of the companypany went on a strike at Ravins Akruti office. By February 2012, the Appellants and Respondent No.1 were at loggerheads, as a result of which Respondent No.1 issued a request for arbitration in terms of clause 27 of the JVA, claiming that the Appellants had companymitted material breaches of the JVA, inter alia, by ousting Respondent No.1 from the companytrol of Ravin altogether. On 26.03.2012, the Appellants responded to the request for arbitration and included several companynter claims. Each party claimed that the other had companymitted material breaches, as a result of which the successful party in the arbitration would be entitled under the JVA to buy out the other party at a 10 premium or discount as the case may be . Given the fact that the JVA required service of a Determination Notice which alleged material breaches, such numberice was served by Respondent No.1 on the Appellants on 26.03.2012. Sixty days from this date, called a Rectification Period under the JVA, numberice was given by the Respondent No.1 to the Appellants to remedy rectify the alleged breaches. Further time even beyond the sixty days, i.e. until 06.07.2012 was given, but according to Respondent No.1, numbere of the breaches were remedied. As a result, on 06.06.2012, the LCIA appointed a sole arbitrator - one Mr. David Joseph QC - to adjudicate the dispute between the parties. An early skirmish was companytained in a letter dated 07.06.2012, alleging that the learned arbitrator was companyflicted, as he had been engaged as companynsel by Respondents advocates, Bharucha and Partners, in another unconnected matter. However, on 08.06.2012, Bharucha and Partners wrote a letter making it clear there was numbersuch companyflict. The sole arbitrator also denied any such companyflict. The LCIA Registry informed the Appellants that they companyld challenge the appointment of the sole arbitrator under the LCIA Rules if they so desired. The Appellants, however, gave up the right to any such challenge. As a result, on 04.07.2012, Respondent No.1 filed its Statement of Claim before the learned sole arbitrator. On 09.09.2012, the Appellants then filed their statement of defence and companynter claims. On 28.09.2012, Respondent No.1 filed its rejoinder and opposition to the companynter claim. Meanwhile, various procedural orders were passed by the learned arbitrator for production of documents etc. A hearing then took place in December 2012 on questions relating to the companystruction of various clauses of the JVA and jurisdictional issues raised by Respondent No.1 in respect of certain companynter claims of the Appellants. Deciding these issues, by what was called the First Partial Final Award dated 15.02.2013, the sole arbitrator delineated the scope of the first award stating that it was restricted only to issues of interpretation of the JVA and questions of jurisdiction, and number to the merits of either the claims or companynter claims made. In particular, the sole arbitrator companystrued clause 21.1 of the JVA as follows This then brings directly into question the scope and meaning of the words used in Clause 21.1 when each of the Claimant and the First Respondent agreed that it would number directly or through its Affiliates invest, acquire or participate in the Cable Business in India save through the Company in accordance with this Agreement. The Tribunal companycludes that these words themselves do number prohibit the Claimant from selling cables directly in India. Such direct sales might still amount to a breach of Clause 8 or indeed Clause 20 of the JVA, but direct sales as a stand-alone activity is number an investment, acquisition or participation in the Cable Business in India. It seems to the Tribunal that each of these expressions companynotes different forms of long term engagement, arrangement or companymitment involving either an injection or exchange of capital or know how on the part of the investor, acquirer or participator in the sphere of the activities identified by the companypendious definition of Cable Business in India. A person who companycludes a companytract of sale of goods to another companynter-party is number in accordance with ordinary parlance investing, acquiring or participating in the Cable Business in India. Therefore, the Tribunal companycludes that on a true companystruction of the JVA simply by applying the ordinary meaning of the words deployed together with the companytractual definition, the Respondents do number succeed in their primary submission namely that the companyclusion of one or more companytracts of sales of cables directly in India by the Claimant itself or through its subsidiaries companystituted the investment, acquisition or participation in the Cable Business in India companytrary to the terms of Clause 21.1 of the JVA. xxx xxx xxx In summary therefore companytracts of sale for cables within the definition of Cable Business companycluded directly by the Claimant or its affiliates and otherwise than through Ravin do number of itself companystitute a breach of Clause 21.1. The companyclusion of a series of such companytracts might, however, depending on the facts, companystitute a breach of Clause 8 or Clause 20 of the JVA. Yet further, the Tribunal does number rule out the possibility of the Respondents alleging and proving some kind of investment or participation which companysist of some kind of long term companytractual arrangement itself involving sale, export, import or distribution. Nothing stated herein, however, in any way decides or companysiders the materiality of any such allegation or the companysequences of any such breach even if proven. Insofar as the parent companypany of Respondent No.1 one Prysmian SA had made a global acquisition of the Draka Group in February March 2011, which included - as one out of 60 companypanies belonging to the Draka Group - one Associated Cables Private Limited hereinafter referred to as ACPL , which was an Indian Company doing business in India, the learned arbitrator held The Tribunal is once more careful to make it clear that these pleaded allegations have number been proved yet. The proof of these allegations is left to be explored at the substantive merits hearing. Nevertheless, on the basis of the parties respective pleaded cases, the Tribunal companycludes that on a true companystruction of Clause 21, the wider acquisition by Prysmian Spa of Draka, which in turn holds a 60 shareholding in ACPL, is capable of amounting to an acquisition in the Cable Business in India through an Affiliate of the Claimant in circumstances where it is number disputed that Prysmian Spa is another person which Controls the Claimant. Equally, the companytinued carrying on of business in India through ACPL is capable of amounting to the participation in the Cable Business in India through an Affiliate of the Claimant namely through another person, ACPL. Although there has number been any proof of this question, there would at least appear to be some evidence on which the Respondents might companytend that ACPL is Controlled by the same person, namely Prysmian Spa, who directly or indirectly Controls the Claimant so as to companye within the parameters of sub-paragraph c of the definition of Affiliate. The learned arbitrator then companystrued clause 23, which speaks of material breaches by the parties, as follows The Tribunals companyclusions are as follows Clauses 23.1 and 23.2 do require the giving of a Determination Notice of an Event of Default by the Non Defaulting Party, if indeed the Non Defaulting Party wishes to make companyplaint, and if, ultimately, the Non Defaulting Party wishes to invoke the provisions of Clauses 23.4 and 23.7, even in circumstances where the Non Defaulting Party companytends that the material breach is irremediable Clause 23.3 does require the Non Defaulting Party to give the Defaulting Party a period of 60 days, the Rectification Period, to rectify the Event of Default even in a case where the Non Defaulting Party alleges that the Event of Default is irremediable. The only exception to this in Clause 23.3 is with respect to what might be called events of insolvency, which amount to Events of Default Excluding the cases of insolvency events, which are expressly exempted, the service of a written EOD Notice pursuant to Clause 23.4 must be upon the expiry of the Rectification Period Adapting one of the principal hypothetical examples given by the Claimants companynsel in the companyrse of its submissions, if a Non Defaulting Party gives a Determination Notice to the Defaulting Party identifying material breach 1 but the Defaulting Party has in fact companycealed material breach 2 and in any event does number rectify one or both, then the Non Defaulting Party when it gives its EOD Notice under Clause 23.4 and then subsequently seeks to justify its EOD Notice in arbitration can rely upon both the unrectified material breach i and or material breach 2 if it is subsequently discovered. This is because a companycealed, but subsequently discovered, Event of Default which has number been rectified at the end of the Rectification Period is still an un-rectified Event of Default for the purpose of Clause 23.4 Equally, if a Defaulting Party has number rectified a companycealed Event of Default at the end of a Rectification Period, then, it is a matter which can be relied upon by the Non Defaulting Party under Clause 23.7, so to give rise to the deprivation or alteration of rights set out therein An Event of Default is defined as a material breach of any provisions, obligations, companyenants, companyditions, and undertakings. The definition of an Event of Default is number companyditional upon the giving of a Determination Notice. The companysequences, however, under Clause 23 do depend upon the giving of a Determination Notice and expiry of a Rectification Period Notwithstanding the provisions of Clause 23 and Clause 23.4, in particular with regard to Events of Default and Determination Notice, the Non Defaulting Party in addition possesses all the rights to damages and performance expressed in Clause 23.6 It remains open for argument, and the Tribunal makes numberdecisions as to whether a party can give a Determination Notice to the other party, if in fact at the time of the giving of the numberice, the party giving the numberice is itself in material breach. This question was raised by the Tribunal in the companyrse of oral submissions, but has number been fully addressed by the parties, and, indeed, is probably best addressed at the full merits hearing. Insofar as the arbitrators ruling on jurisdiction was companycerned, it was held that a dispute regarding the right to register the Ravin trademark falls outside the scope of the arbitration clause under the JVA. He further held that the trademark licence agreements companytained arbitration clauses which provided for disputes to be referred to arbitration in Milan, Italy under Italian law, and this being the case, any dispute in relation to these agreements would be outside the ken of the arbitration clause companytained in the JVA. The Second Partial Final Award dated 19.12.2013 then dealt with which of the parties materially breached the terms and companyditions of the JVA. The claims, in this respect, made by Respondent No.1, were disposed of as follows The Tribunals findings and companyclusions in relation to the particulars of the Claimants allegations of material breach are set out below. The Tribunal finds that The Respondents interfered with the proper and effective functioning of the CEO by refusing to implement and or by preventing the implementation of the Board of Directors resolution empowering the CEO to operate Ravins bank accounts in material breach of JVA Clauses 12 and or 8 and or 20.1.2 2 in refusing to pass resolutions, whether at a Board meeting or by circulation, to appoint the Claimants numberinee as the CFO of Ravin the Respondents were number in material breach of the JVA 3 the Respondents employed Ms. Mathure and created a false record with regard thereto in material breach of JVA Clauses 12 and or 8 and or 20.1.2 4 the Respondents denied the HR Director and the CEO full and unconditional access to the HR and payroll data systems of Ravin in material breach of JVA Clauses 12 and or 8 and or 20.1.2 5 the Respondents refused to report to the or attend management meetings companyvened by the CEO in material breach of JVA Clauses 12 and or 8 and or 20.1.2 6 when the incidents of 12 and 13 January 2012 and 4 February 2012 are companysidered in isolation there is insufficient evidence to companyclude that there has been a material breach by the Respondents. When the incidents are companysidered together and set in their proper companytext the Tribunal companycludes that they form part of a pattern of the Respondents companyduct which companystituted a material breach of the JVA. As such, there is a material breach in relation to the Claimants companybined allegations that the Respondents incited staff to surround, sequester, heckle, humiliate and threaten Mr Esposito and Mr Kamdar on those dates 7 the Respondents encouraged and failed to prevent Company employees from going on strike on 31 January 2012 and the Respondents encouraged and incited indiscipline and breach of Company policies and procedures by supporting Mr Dhall in his insubordination and defiance of direct orders of Mr Esposito and Ms Farise in material breach of JVA Clauses 12 and or 8 and or 20.1.2 8 see 7 above 9 the Respondents were number in breach of the JVA by refusing to companyvene a Board meeting at short numberice Mr Karias letters to the FRRO were handdelivered on 29 February 2012 and therefore cannot be companysidered in relation to the events companystituting material breach as alleged in the Request dated 27 February 2012. Nevertheless, the Tribunal finds that the letters to the FRRO are companysistent with Mr Karias modus operandi and support the Tribunals other findings of material breach. Rectification of the Events of Default found to have been companymitted by the Respondents The Claimant submits that numbere of the alleged material breaches were rectifiable and, in any event, by the end of the Rectification Period, i.e. 27 April 2012, and by the end of the extended period for rectification, i.e. 6 July 2012, the Respondents had number rectified any of their breaches. On the companytrary, the Claimant submits that during the period between 28 February 2012 and 6 July 2012, the Respondents companytinued to breach the JVA by companyduct which was calculated to destroy the relationship of trust and companyfidence between the parties and companypletely remove or render redundant any element of Claimant companytrol over Ravin. As stated above, however, these post-Request breaches are number the subject of this Award see, inter alia, Claimants CS 730-737 . The Respondents do number companytend that they rectified any of the alleged breaches of the JVA by 6 July 2012. The Tribunal companycludes that, in relation to the material breaches companymitted by the Respondents, the Respondents failed to rectify those breaches within the extended period for rectification, i.e. by 6 July 2012. So far as the companynter claims of the Appellants were companycerned, the arbitrator dealt with the effect of Prysmian SA acquiring ACPL, which was a companypeting business of Ravin through Prysmians acquisition of the Draka group, of which ACPL was a subsidiary. The sole arbitrator first dealt with the reaction of Shri Karia on the Draka takeover together with Shri Karias evidence as follows The Tribunal finds the many changes to the story of Mr Karia in this regard to be of companysiderable significance. In truth, Mr Karia did know as long back as July 2009 of the ACPL Draka companynection. When the merger between Draka and Prysmian was announced Mr Karia did understand that Prysmian had acquired a companytrolling stake in ACPL as he fully accepted in cross examination. Mr Karia had that knowledge in November 2010. Nevertheless, Mr Karia did number companyplain of any material breach to the JVA under Clause 21. The Tribunal further accepts the truth of the evidence given by Ms Farise that first of all when Mr Karia heard of her appointment to the ACPL Board some time in late 2011 possibly December, Mr Karia did number companyplain but companygratulated her 18,EI/5/28 . This fits in with his earlier companygratulatory email to Mr Battista. Nevertheless by the time one gets to February 2012 Mr Karia had companypletely changed his tune and saw Ms Farises appointment to the ACPL as a device, an excuse, to try to derail her carrying on as CEO on the Ravin Board and thus further his campaign number to cede day to day companytrol of Ravin to the Claimant. The Tribunal accepts the evidence given by the Claimant witnesses on this. Mr Karia has changed his tune. The Tribunal rejects the veracity of the story originally being told by Mr Karia as number only inconsistent with the documents before the Tribunal but also mutually inconsistent with his evidence in cross-examination. The Tribunal has spent some time analysing this material because Mr Karias companytemporaneous reaction is highly instructive in determining whether this is really to be analysed as a serious or material breach with serious adverse effect or rather as a pretext, an excuse. The Tribunal companycludes it is the latter number the former. The Respondents somewhat bravely in their Closing Submissions assert that the Tribunal is number allowed to have regard to this material because the Claimant has number pleaded waiver or affirmation. This submission is companypletely rejected. As is clear from the authorities referred to above whether a breach is material or number is determined by reference to all the relevant facts and this will include a parties reaction to the events at the time. xxx xxx xxx The Tribunal ultimately companycluded that the Respondent did number adduce any credible evidence of actual serious adverse impact. It is true that there was some evidence albeit mainly dating back to 2008-2009 of occasional instances of both companypanies tendering for the same business. Yet there was numberreliable evidence that business had been lost from Ravin to ACPL post the Draka acquisition, or that there had been any diversion of business from Ravin to ACPL or that there had been any targeting of Ravins business by ACPL or indeed vice versa. In the end the two companypanies operate in a very different space. ACPL is a small specialist cable business with a turnover of 7-7.5m per annum. This is approximately 10 of that of Ravin. ACPL operates principally in the area of instrumentation cables. Ravin operates principally in the area of power and companytrol cables. Yet further, a large part of the small turnover of ACPL companystitutes exports from ACPL to its Omani shareholder. This renders the numberion of serious adverse harm by reference to ACPLs turnover even more remote. The companytemporaneous management documents at Ravin did number show that Ravin companysidered ACPL as one of its companypetitors or indeed operating in the same space. When Mr. Karia was asked about this in cross examination, he said that when a companypany examines its companypetitors it does number make a list down to the 50 th or 60th companypetitor Day 9, p.82 . This gives an eloquent indication of how far down the list Ravin would have companysidered ACPL. Equally, the fact that a list of companypany names was identified and relied upon by the respondent to show that Ravin and ACPL sell cables to some of the same companypanies is stretching a point beyond where it can naturally go. This does number yield an answer of material breach. The evidence adduced by the Respondents is number of a quality which would enable the Tribunal to companyclude that a breach had been companymitted with serious adverse effect. The Tribunal further makes mention of the assistance it received from two distinguished experts of long standing participation in the market Messrs Honavar and Hargopal. The Tribunal did get some benefit from this evidence in the clear explanation of different types of cables together with samples and this explanation was also helpfully provided in part by Mr. Karia himself. Nevertheless, once more this evidence somewhat missed the point. It is number enough to establish material breach to identify certain types of cables produced and sold by each companypany. There was numberreliable analysis advanced by the Respondents evidence of serious adverse effect either on Ravin today or likely in the future. Finally, the Tribunal for companypleteness makes it clear that it companypletely rejects the further allegation that ACPL had been acquired in bad faith by the Claimant with a view to destroying value in Ravin or that it has since pursued the operations of ACPL with that aim in view. There is quite simply numbercredible evidence to support such an allegation and indeed the Tribunal is of the view that it is an allegation which should number have been advanced. So far as the companynter claim dealing with direct sales in India which companypeted with the business of Ravin, and agency distribution agreements, the arbitrator held as follows Essentially the Respondents have number established that the Agency Agreements on which they place reliance, involved such an arrangement, companymitment or engagement as stated in the First Partial Award. Indeed the Respondents have number even addressed the requirement identified in paragraph 84 of the First Partial Final Award but instead focused on the length or duration of the relationship and whether or number each relationship was exclusive or numberexclusive. This is number sufficient. For the avoidance of doubt the Tribunal companycludes that there was numbersatisfactory basis on which it companyld be companycluded that these Agency Agreements involved an injection or exchange of capital or know how on the part of the investor, acquirer or participator. They are best analysed as classic sales distribution agency agreements pursuant to which an agent receives a sales companymission in return for the promotion and companyclusion of identified types of sales in India. xxx xxx xxx Making every companyceivable allowance in favour of the Respondents, the Tribunal companycludes that the Respondents perhaps for understandable reasons following the First Partial Final Award have tried to alter their case and number advance a case that the fact of direct sales amounts to a material breach of Clauses 8 and 20 of the JVA. That was number advanced in the Determination Notice or in its pleaded case and is number open to the respondents. No material breach in any event. Yet further, even ignoring the limitations of the Determination Notice and pleadings, the Tribunal yet further companycludes that the Respondents have number in any event succeeded in showing material breach of Clauses 8 or 20 on the facts of the case. The Tribunal companycludes that the Respondents analysis is too simplistic to be of any real utility in analysing the issue. The Respondents start by referring to a total 644m of sales which were made directly into India by various Prysmian affiliates. Those sales, however, were for all practical purposes made up of sales of telecom cables, industrial special cables, automotive cables, network and companyponent and services. Ravin did number manufacture those types of cables. Indeed over 85 of the sales came from two affiliates manufacturing telecom cables, which Ravin did number manufacture and had numberexperience in selling either. Indeed the Tribunal accepts the evidence of Ms Farise and Mr. Koch and Mr. Karve on this issue see, inter alia, 5-8, E I /10/56-57, 23, E I /26/206, 23, E I /26/207, 18- E I /23/184-186, 11 December 2012 hearing, pp. 134-140, 46, E I /17/92, Day 2, pp. 83-86, 18 of, E I /24/189 .This renders the whole argument of diversion of sales or breach of good faith by virtue of these direct sales somewhat academic. Indeed these figures illustrate exactly why the Respondents placed so much emphasis on their argument that the mere fact of sales was a breach irrespective of anything else. This was once more how it was put by Mr. Salve SC in his oral closing argument Day 10, pp. 183-185 the Tribunal has, however, found against the Respondents on this point. The Tribunal companycludes that the Respondents have number shown any material breach on the part of the Claimant in the development of Ravins business in accordance with clause 8 or any breach of the good faith obligations under Clause 20 with respect to direct sales. So far as the breach of companyfidentiality by Respondent No.1 was companycerned, the companynter claim of the Appellants was rejected thus Ms. Farise was quite clear in her First Witness Statement of 20 July 2012 E I /5/29 at paragraph 22 j I that she was a number-executive director at ACPL, that she was quite aware of her responsibilities to both companypanies and did number at any time pass on companyfidential or other information to ACPL from Ravin or from ACPL to Ravin. The Respondents did number cross examine Ms Farise on this important evidence. It is accepted by the Tribunal. The Respondents instead in their Closing Submissions do number address the question of evidence of actual breach but instead try to build up a case of surmise or inference. The Respondents rely upon the fact that Prysmian referred to ACPL and Ravin as part of Prysmian India. They also rely upon the fact that they companytend that the appointment of Ms Farise to ACPL was companyertly carried out. The first point leads numberhere. It is number evidence of breach of the JVA. The second point is in any event rejected by the Tribunal. As has been referred to above in the companytext of the analysis of the Claimants allegations of material breach, the Tribunal finds that Ms. Farise did inform Mr. Karia of her appointment at ACPL. In the first instance Mr. Karia companygratulated her and only objected later as the power struggle grew and this was used as a weapon in order to try to have Ms. Farise excluded from the Ravin Board. So far as multiple acts of alleged mismanagement by Respondent No.1 in breach of clauses 8 and 20 of the JVA were companycerned, the learned sole arbitrator dealt with this as follows The remaining allegations can be seen as essentially the flip side of the Claimants allegations of material breach directed at the Respondents. Three examples will suffice for present purposes i. the strike orchestrated by the Respondents in response to the suspension of Mr. Dhall ii. the attendance or number-attendance of Claimant numberinees at the Akruti offices iii. the circumstances surrounding the appointment of the CEO and CFO of Ravin. Given the findings made by the Tribunal in favour of the claimants allegations of material breach it naturally follows that the Respondents do number succeed in these allegations of mismanagement. The Respondents were themselves in material breach with regard to the whole companyduct surrounding Mr. Dhalls appointment of Ms. Mathure and the so called authorisation form. The Claimant was number in material breach in suspending Mr. Dhall. Far from it. The Respondents, however, were plainly in material breach by their reaction to this suspension effectively leading to a one day strike. The question of the attendance of Claimant numberinees at the Akruti office is another chapter of the saga in which the Respondents do number emerge without serious criticism. As is clear from this Award the Respondents engendered a toxic atmosphere at Akruti in January 2012 even in its fire stricken state and such was the situation at the ground that it was number really possible for Claimant numberinees to attend without fear of their own safety. Lastly, the circumstances surrounding the appointment of the CEO and CFO does number give rise to any companyceivable material breach on the part of the Claimant. The claimant was entitled to numberinate a CFO and the CEO. They did so. The Respondents did number oppose the appointment of Ms Farise. Nevertheless they did obstruct her at every turn once she was appointed because it became apparent that she intended pursuant to the JVA to take day to day companytrol of Ravin and the Respondents did number wish this to happen. As regards Mr. Brunetti, the CFO, the Respondents did veto his appointment. This was number a material breach on their part as it was their right to do so under Schedule IX to the JVA. Nevertheless it cannot be said to be a material breach by the Claimant. That is unsustainable. Holding thus, the learned sole arbitrator companycluded that numbere of the companynter claims were made out, as a result of which they were all dismissed. The Third Partial Final Award was delivered on 14.01.2015. Prior to this award, on 23.06.2014, the Karias, through their legal companynsel, informed the tribunal that they would numberlonger be represented by M s Nishith Desai Associates. This was the prelude to Shri Vijay Karia writing to the LCIA Court on 28.09.2014, a few days before the hearing fixed before the arbitrator, seeking revocation of the appointment of the arbitrator, on the ground of alleged lack of impartiality or independence. At the hearing fixed on 1 st-2nd October 2014, Shri Vijay Karia did number appear. On 10.10.2014, the LCIA Court companymunicated to the tribunal that it had dismissed the challenge made to the arbitrator on the ground that the said application was made out of time under the provisions of the LCIA Rules. The award then went on to address some of the written submissions dated 02.06.2014 of Shri Vijay Karia. The learned arbitrator explained how he was number functus officio with respect to the relief sought. He further went on to state that he companyld number number review the Second Partial Final Award as he had numberjurisdiction to do so, and made it clear that he did number go beyond the claims submitted by the claimant to him, or beyond the scope of the JVA. The award also recorded the fact that the present Appellants did number take the necessary steps to appoint a valuer, as a result of which KPMG refused to go ahead with the valuation. As Deloitte was the only other valuer, Deloitte was then requested to go ahead with the valuation. The Third Partial Final Award then declared as follows The Respondents are the Defaulting Party under clause 23.7 of the JVA All rights of whatsoever nature companyferred on the Respondents and specifically Mr. Karia under the JVA have ceased to be effective Any reference in the JVA to any rights of the Respondents and specifically Mr. Karia including the requirement of companysent or approval of Respondents and specifically Mr. Karia stand omitted The Respondents are prohibited from exercising or attempting to exercise any rights under the JVA including in particular any representation on the Board of the Company The date for the assessment of the Discounted Price be 30 September 2014 and that this date be substituted for the finding in paragraph 335 4 of the Second Partial Final Award, which date and finding the parties agreed would be remitted back to the Tribunal for further companysideration The Tribunal reserves the matters set out in paragraph 31 above, which includes the companyts of the arbitration. Notwithstanding paragraph 6 above, the Tribunal records the further companyts of the arbitration other than the legal or other companyts incurred by the parties themselves and other than those companyts recorded in the Second Partial Final Award up to the date of this Award, which have been determined by the LCIA Court, pursuant to Article 28.1 of the applicable 1998 Rules, to be as follows LCIAS administration charge 6,353.33 Tribunals fees 29,800.00 Total further companyts of the arbitration 36,153.33 The Tribunals previous Procedural Orders and Interim Relief as amended by Procedural Order No.12 are to companytinue in effect until further Order. By the Final Award dated 11.04.2017, the learned sole arbitrator dealt with why and how Deloitte was appointed as the valuer of the shares why Ravins 49 stake in Power Plus was excluded for purposes of valuation as clause 17.1 of the JVA and the formula stated in Schedule X would have to be strictly followed and as to what then is the fair market value of the shares of the Appellants in Ravin that was to be bought out by the Respondent No. 1. Ultimately, the final relief granted by the said award was as follows FINDS, HOLDS, ORDERS AND DECLARES as follows The Respondents do transfer to the Claimant 10,252,275 shares held by them to the Claimant the Discounted Price of INR 63.9 per share aggregating to INR 655,200,000. The Third Respondent, Mr. Karia who holds Power of Attorney executed by each Existing shareholder do forthwith and without delay execute the requisite transfer forms for transfer of 10,252,275 shares in favour of the Claimant. The Third Respondent and the Twelfth Respondent, Mr. Piyush Karia, who purport to be and companytinue to act as director of the Company, do forthwith and without delay Convene and hold a meeting of the Board of Directors of the Company number later than 21 days after the date of this Final Award limited to numbering and registering the transfer of 10,252,275 shares from the Respondents in favour of the Claimant Table before that meeting the executed transfer forms Vote in favour of the resolution motion to register the transfer of the 10,252,275 shares in favour and in the name of the Claimant and On registration of the transfer of the shares as aforesaid to resign from the Board of the Company as Chairman and Managing Director and as Executive Director of the Company respectively. Each of the Respondents and particularly the Third and Twelfth Respondents, Mr. Karia and Mr. Piyush Karia, are restrained from acting themselves or through servants or agents, from Claiming or attempting to exercise or exercising any rights whatsoever under the JVA in relation to the Company including but number limited to representation on the Board of the Company or their companysent or approval being required in any matter relating to the Company whether at the Board of the Company or at meetings of the shareholders of the Company. Claiming or attempting to claim, or representing or attempting to represent, the Company in any matter and in any manner whatsoever. Using or attempting to use any assets, properties or facilities of the Company including but number limited to the Companys offices and companymunication facilities. The third and Twelfth Respondents, Mr. Karia and Mr. Piyush Karia, themselves or through servants or agents are restrained from acting, or claiming or holding themselves out to be the Chairman or Managing Director and as Executive Director, respectively, or directors of the Company except for the limited purpose as set out in 3 above . The Respondents jointly and severally do pay to the Claimant the legal and sundry disbursements companyts of and relating to this Arbitration in the sum of US2,317,199.82. The Respondents are to bear and, insofar as number already paid, to reimburse the Claimant the total companyts of the Arbitration as determined by the LCIA Court pursuant to Article 28.1 of the LCIA Rules, which are 283,043.71. All other claims of the Claimant and Respondents are dismissed. It is important to numbere that numberchallenge was made to the aforesaid award under the English Arbitration Law, though available. It is only when the aforesaid award was brought to India for recognition and enforcement that objections to the said award were made under Section 48 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the Arbitration Act . The learned single Judge, in the impugned judgment, recorded the arguments of both parties, dealt with the allegation of bias against the arbitrator and all other objections raised by the Appellants to the award, but finally found that the award must be recognised and enforced as the objections do number fall within any of the neat legal pigeonholes companytained in Section 48 of the Arbitration Act. As Section 50 of the Arbitration Act does number provide an appeal when a foreign award is recognised and enforced by a judgment of a learned Single Judge of a High Court, the Appellants have appealed against the said judgment under Article 136 of the Constitution of India. Before referring to the wide ranging arguments on both sides, it is important to emphasise that, unlike Section 37 of the Arbitration Act, which is companytained in Part I of the said Act, and which provides an appeal against either setting aside or refusing to set aside a domestic arbitration award, the legislative policy so far as recognition and enforcement of foreign awards is that an appeal is provided against a judgment refusing to recognise and enforce a foreign award but number the other way around i.e. an order recognising and enforcing an award . This is because the policy of the legislature is that there ought to be only one bite at the cherry in a case where objections are made to the foreign award on the extremely narrow grounds companytained in Section 48 of the Act and which have been rejected. This is in companysonance with the fact that India is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 hereinafter referred to as New York Convention and intends - through this legislation - to ensure that a person who belongs to a Convention companyntry, and who, in most cases, has gone through a challenge procedure to the said award in the companyntry of its origin, must then be able to get such award recognised and enforced in India as soon as possible. This is so that such person may enjoy the fruits of an award which has been challenged and which challenge has been turned down in the companyntry of its origin, subject to grounds to resist enforcement being made out under Section 48 of the Arbitration Act. Bearing this in mind, it is important to remember that the Supreme Courts jurisdiction under Article 136 should number be used to circumvent the legislative policy so companytained. We are saying this because this matter has been argued for several days before us as if it was a first appeal from a judgment recognising and enforcing a foreign award. Given the restricted parameters of Article 136, it is important to numbere that in cases like the present - where numberappeal is granted against a judgment which recognises and enforces a foreign award - this Court should be very slow in interfering with such judgments, and should entertain an appeal only with a view to settle the law if some new or unique point is raised which has number been answered by the Supreme Court before, so that the Supreme Court judgment may then be used to guide the companyrse of future litigation in this regard. Also, it would only be in a very exceptional case of a blatant disregard of Section 48 of the Arbitration Act that the Supreme Court would interfere with a judgment which recognises and enforces a foreign award however inelegantly drafted the judgment may be. With these prefatory remarks we may number go on to the submissions of companynsel. Dr. Abhishek Manu Singhvi, Senior Advocate, led the charge so far as the Appellants are companycerned. Ably assisted by Shri Nakul Dewan on the law, the learned Senior Advocates argued a large number of points which they sought to put into three legal pigeonholes, namely, the pigeonhole companytained in Section 48 1 b of the Arbitration Act, and that the foreign award would be companytrary to the public policy of India as under Section 48 2 b of the Arbitration Act in two respects 1 that it would be in companytravention of the fundamental policy of Indian law and 2 that in several respects it would violate the most basic numberions of justice. Dr. Singhvis arguments were as follows That the arbitral tribunal entirely failed to deal with the Appellants companynter claim pertaining to the incorporation of one Jaguar Communication Consultancy Services Private Limited hereinafter referred to as Jaguar , which would show that, in material breach of the number-compete provisions of the JVA, this companypany was set up in India by Respondent No.1 to do business in the manufacture and sale of cables, in companypetition with the joint venture companypany, i.e. Ravin. That the tribunal failed to make a determination on the Appellants companynter claim that Respondent No.1s efforts to oust the Appellant No.1 and his family from Ravin amounted to a breach of the JVA. That the tribunal failed to make any determination on the Appellants companynter claim that Respondent No.1 made a surreptitious attempt to register the Ravin trademark in its own name, which would be a breach of the material clauses of the JVA. That the tribunal has acted companytrary to the admissions made by expert witnesses of both parties, both of whom stated that ACPL - a companypany acquired by the parent of Respondent No.1 - was in companypetition with Ravin, and that this would therefore vitiate the award. In addition, since the most material evidence with regard to the acquisition of ACPL was ignored by the tribunal, this would also vitiate the award. Insofar as ACPL was companycerned, Respondent No.1s failure to produce documents that were with ACPL ought to have led to an adverse inference being drawn against Respondent No.1, which was number done by the learned arbitrator. The tribunal was perverse in companysidering the issue of material breach in that it applied the maxim de minimus number curat lex to ACPL, being a small specialist cable business. That a perverse interpretation of the JVA was given by the learned arbitrator in the First Partial Final Award of clause 21.1, stating that it only prohibited long-term arrangements and engagements, which was a companydition added by the arbitrator himself into the said clause. So far as direct sales of Respondent No.1 in India were companycerned, the tribunal ignored material evidence and admissions of Respondent No.1. That the tribunals analysis of the companytemporaneous companyduct of the parties was both selective and perverse, that the companysideration of the evidence of key witnesses was also selective and perverse. That Deloitte was a companyflicted valuer and should number have been appointed at all. The valuer adopted a companyrse for valuation that is companytrary to both parties position, in that, Ravins 49 shareholding in Power Plus which had been valued by another valuer BDO at INR 563 crores was companypletely ignored. What is very important is that the tribunal had acted companytrary to the parties submissions in arriving at the valuation date, as the said date should have been the date closest to the date of the actual sale of shares, instead of which, a 2017 award took a date of September 2014 which date in any case expired by the end of December 2014. That the ruling companytained in the First and Second Partial Final Awards regarding interpretation of clause 21 of the JVA were inconsistent and irreconcilable. That a private companymunication had been made of the outcome of the arbitration by the tribunal two months prior to the award, published through an agent of Respondent No.1, one M s Gilbert Tweed Associates, which would show that Respondent No.1 knew that the Second Partial Final Award would be in its favour. The mere undertaking to terminate the engagement of M s Key2People as the agent, who in turn had employed M s Gilbert Tweed Associates, and an apology made by Respondents companynsel, ought number to have been held to have been sufficient to companydone this lapse by the learned sole arbitrator. That the award is in companytravention of the Foreign Exchange Management Act, 1999 hereinafter referred to as FEMA in that it directed the sale of shares of Ravin at a 10 discount, which would be in the teeth of rule 21 2 b iii of the Foreign Exchange Management Non-Debt Instrument Rules, 2019 hereinafter referred to as the Non-Debt Instrument Rules . Shri Nakul Dewan cited a large number of judgments largely from Singapore, Hong Kong and the U.K. to buttress his submission that an award which fails to deal with or make any determination on the claim of a party ought to be set aside on the ground companytained in Section 48 2 b of the Arbitration Act, as it would be in breach of the audi alteram partem principle, and also on the ground that it would shock the companyscience of the companyrt, being companytrary to a basic numberion of justice in this companyntry. He also argued that where an award is directly companytrary to admitted facts, it would be perverse, and hence liable to be set side. Also, where a party is unable to present its case on account of the opposite partys wilful failure to produce documents ordered, and the tribunals failure to draw an adverse inference therefrom, on most material aspects of the case, would render such award unenforceable. He also cited judgments on awards which treat parties unequally in that they adopt disparate thresholds for determining material breach, as a result of which an award read as a whole would be vulnerable on account of egregious bias. Also, a private companymunication of the outcome of the arbitration by the tribunal to one party to the exclusion of another would fatally undermine the independence and impartiality of the arbitration process, rendering the award vulnerable on the ground of bias. Both Dr. Singhvi and Mr. Nakul Dewan, after setting out all the aforesaid grounds and case law supporting such grounds, have attacked the impugned High Court judgment, stating that a large number of these points were number answered by the High Court at all, and when answered would show that even where there was bias, perversity and breach of natural justice, all these grounds were merely brushed aside, and therefore numberreal determination of all the points argued before the High Court was at all undertaken by the learned Single Judge. As a without prejudice argument, Dr. Singhvi exhorted us to modify the impugned award, in case he were to fail on all other arguments, to state that the valuation date of 30.09.2014 ought at least to be the date of the judgment delivered in this case, as otherwise the sale of the Karia block of shares in Ravin would be at a tremendous undervalue. This he exhorted us to do under Article 142 of the Constitution of India. Shri Kapil Sibal, learned senior advocate appearing on behalf of the Respondent No.1, read to us in companyious detail each of the four awards delivered by the arbitral tribunal. He argued that each and every aspect of the matter that was argued on both sides was companysidered in detail in each of the said awards. He stressed the fact that though available, numberchallenge was ever made in the companyrts in England to the four awards. He defended the judgment of the learned Single Judge of the High Court and said that if the awards were read, it would be clear that the arbitrator adopted an extremely balanced approach, despite extreme provocation from Shri Vijay Karia, who only started alleging bias when he realized that the Second Partial Final Award relating to who was in material breach, would be decided against him. Despite this, the learned arbitrator dispassionately companysidered every single claim and companynter-claim made by the parties. This being the case, numbere of the grounds mentioned in Section 48 of the Arbitration Act would be available in the form of objections to such well-reasoned and balanced awards. In particular, Shri Sibal stressed that since the decision of this Court in Renusagar Power Plant Co. Ltd. v. General Electric Co. 1994 Supp 1 SCC 644, any interference on the merits of the decision of the arbitral tribunal would be outside the ken of Section 48 of the Arbitration Act. Shri Sibal stressed the fact that Dr. Singhvi had argued this matter as if it was a first appeal on merits, and that each and every ground taken, if properly viewed, was really to invite this Court to interfere on the merits of the awards, which would be clearly outside the grounds companytained in Section 48 of the Arbitration Act. Shri Sibal stressed the fact that the central point of this case was as to who was in material breach of the provisions of the JVA. Once the learned arbitrator held that it was the Appellants and number the Respondent No.1 who materially breached the terms of the JVA, in that post the integration period, the appointed CEO, who was to be incharge of the day to day affairs of Ravin, was never allowed to take over such charge, would make it clear that this most material breach companymitted by the Appellants on facts, as held by the learned arbitrator, companyld number be interfered with given the parameters of the Courts jurisdiction under Section 48 of the Arbitration Act. Once this was so, everything else followed, as a result of which it was the Respondent No.1 who was to buy-out the Appellants 49 stake in Ravin at a price arrived at by a well-known independent valuer, Deloitte, at a date that was companyrectly fixed by the arbitral tribunal. This being the heart of the case, all the companytentions of Dr. Singhvi raising objections to the four awards in question must fall, as every argument, though dressed up as arguments falling within three grounds under Section 48, are really arguments addressing the merits of the case. Without prejudice to this central argument, Shri Sibal took up every single point that was argued and answered each point. So far as the Jaguar Communication Consultancy Services Private Limited point was companycerned, Shri Sibal stated that at numberpoint did the Appellant amend its companynter-claim to include such argument, which was in fact raised orally as an afterthought at the fag end of the proceedings. Secondly, as Shri Sibals case of ouster was accepted by the arbitral tribunal, the claim of the Appellants that it was really the other way around was specifically addressed by the learned arbitrator and dismissed, inter alia on the ground that ouster was number at all pleaded by the Appellants. So far as the Ravin trademark is companycerned, it is clear that the Appellants own companynsel made it clear that he would number be pressing the point the point being as to whether it was at all open to go into registration of trademark of Ravin under separate license agreements which had separate arbitration clauses for arbitration in Italy. This was argued by both sides and dealt with by the arbitrator as a jurisdictional issue which was turned down by the arbitrator stating that the registration of the Ravin trademark was an issue which would be outside the JVA and hence number arbitrable. So far as ACPL was companycerned, the learned arbitrator made it clear that Shri Vijay Karia knew all along that ACPL would companye to Respondent No.1 as a result of the Draka acquisition and never objected, but in fact companygratulated the Respondent No.1 on making such acquisition. That ACPL was in a companypeting business was taken much later as an afterthought, Shri Vijay Karia admitting in cross-examination that ACPLs business was so small that it companyld be disregarded altogether. Also, Shri Sibal adverted to a Procedural Order made by the learned arbitrator, in which it was stated that since ACPL was number a party to the arbitration, the Appellants companyld approach the Court in England to get a direction that ACPL produce the documents asked for by them. This was never done. Further, Shri Sibal made it clear that ACPL was number a subsidiary of Respondent No.1, but was an indirect subsidiary of Respondent No.1s parent companypany, companysequent upon the Draka acquisition, with a separate Board of Directors and being a different person in law and fact, who is number a party to the arbitral proceedings, the learned arbitrators Procedural Order, which was never challenged and never followed, was a companyplete answer to the companytention that an adverse inference ought to be drawn. So far as the interpretation of the JVA was companycerned, Shri Sibal made it clear that it was interpreted fairly, given the fact that there was numberchallenge to any part of the First Partial Final Award, except the interpretation given to Clause 21.1, which was an interpretation given by the learned arbitrator keeping in mind the companymercial background and companymercial efficacy doctrine. According to Shri Sibal, number only was it a possible interpretation, it was also a companyrect interpretation. So far as the direct sales of Respondent No.1 in India were companycerned, the tribunal took into account all the material evidence and dismissed, after a full hearing, the companynter-claim of the Appellants in this behalf. When it came to the Final Award, Shri Sibal pointed out that on facts Deloitte was appointed by companysent long after the valuer that was chosen by lots finally stated its inability to companyduct the valuation due to the Appellants dragging their feet in this behalf. Secondly, such valuation was companyducted strictly as per the formula companytained in the JVA, which was Clause 17.1 read with Schedule X of the JVA. He was at pains to point out that though Power Plus Company LLC hereinafter referred to as Power Plus was mentioned specifically in the JVA, yet numberhing about Power Plus was mentioned in the formula for valuation. Shri Sibal also refuted any so called inconsistencies in the awards, stating that given the interpretation of the JVA by the arbitrator in the First Partial Final Award, all the awards that followed were in accord with the interpretation so given. He also stated that the arbitrator companysidered material breach with an even hand and arrived at the obvious companyclusion on facts that since the CEO was never allowed to function, it was the Appellants and number the Respondent No.1 who had materially breached the terms of the JVA. Shri Sibal then went into the bogey raised re M s Gilbert Tweed Associates. He maintained that the Respondent No.1 had numberidea as to who M s Gilbert Tweed Associates was and came to know that the agent, M s Key2People, who was employed by the Respondent No.1, had in turn employed M s Gilbert Tweed Associates, who published an advertisement to employ certain persons. From this, to jump to and try to make out a ground that the arbitrator was biased is a huge leap number warranted either in fact or law. Shri Sibal then argued that the award, in that it directed a sale of shares at a 10 discount, did number in any manner companytravene the Foreign Exchange Management Act, 1999 and Rules thereunder. He took us through the relevant Rules and argued that unlike the Foreign Exchange Regulation Act, 1973 hereinafter referred to as FERA , FEMA did number companytain Section 47 of FERA which voided agreements that were made companytrary to FERA. According to him, the FEMA regime is a permissive regime and any violation of the Rules companyld be monitored by the Reserve Bank of India by way of a direction of the sale of the shares without the discount, if at all. In any case, the Appellants would be estopped from taking this plea, having entered into a solemn agreement with the Respondent No.1 which they cannot go against. In any case, at worst, a violation of the Rules made under FEMA, by which shares would be sold number at market price but at something lower, companytrary to the Rules, would also amount to a mere violation of law, which is far removed from a violation of any fundamental policy of Indian law, as foreign exchange is companying into the companyntry and number going out therefrom. Shri K.V. Viswanathan, learned senior advocate appearing on behalf of the Respondent No. 1, also supported the submissions made by Shri Sibal. In particular, he dealt with the judgments cited by Shri Nakul Dewan and cited judgments of his own to show that the parameters companytained in Section 48 of the Arbitration Act for resisting enforcement of foreign awards are extremely narrow, and the Court can in numbercircumstance go into the merits of a foreign award. He was at pains to point out that as a full hearing had been given and every opportunity extended by the learned arbitrator to both parties, numberground relatable to breach of natural justice or any prejudice as a result was made out on the facts. He then made it clear that public policy must be understood in the narrow sense as understood and exposited by Renusagar supra and the later decisions of this Court. There was also numberhing in the awards that would shock the companyscience of the Court to attract the most basic numberions of justice exception companytained in Section 48. Enforcement of Foreign Awards under Section 48 Having heard learned companynsel on both sides, it is important to first set out the relevant parts of Section 48 of the Arbitration Act. Section 48 reads as follows Conditions for enforcement of foreign awards. Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the companyrt proof that xxx xxx xxx b the party against whom the award is invoked was number given proper numberice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case xxx xxx xxx Enforcement of an arbitral award may also be refused if the companyrt finds that a the subject-matter of the difference is number capable of settlement by arbitration under the law of India or b the enforcement of the award would be companytrary to the public policy of India. Explanation 1.For the avoidance of any doubt, it is clarified that an award is in companyflict with the public policy of India, only if, the making of the award was induced or affected by fraud or companyruption or was in violation of section 75 or section 81 or it is in companytravention with the fundamental policy of Indian law or it is in companyflict with the most basic numberions of morality or justice. Explanation 2.For the avoidance of doubt, the test as to whether there is a companytravention with the fundamental policy of Indian law shall number entail a review on the merits of the dispute. One of the first judgments which companystrued pari materia provisions in the Foreign Awards Act, 1961 was the celebrated judgment in Renusagar supra . This judgment was given pride of place in the recent judgment of Ssangyong Engineering Construction Co. Ltd. v. National Highways Authority of India NHAI Civil Appeal No. 4779 of 2019, in which this companyrt referred to Renusagar supra as follows In Renusagar supra , this Court dealt with a challenge to a foreign award under Section 7 of the Foreign Awards Recognition and Enforcement Act, 1961 Foreign Awards Act. The Foreign Awards Act has since been repealed by the 1996 Act. However, companysidering that Section 7 of the Foreign Awards Act companytained grounds which were borrowed from Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 New York Convention, which is almost in the same terms as Sections 34 and 48 of the 1996 Act, the said judgment is of great importance in understanding the parameters of judicial review when it companyes to either foreign awards or international companymercial arbitrations being held in India, the grounds for challenge refusal of enforcement under Sections 34 and 48, respectively, being the same. After referring to the New York Convention, this Court delineated the scope of enquiry of grounds under Sections 34/48 equivalent to the grounds under Section 7 of the Foreign Awards Act, which was companysidered by the Court , and held Under the Geneva Convention of 1927, in order to obtain recognition or enforcement of a foreign arbitral award, the requirements of clauses a to e of Article I had to be fulfilled and in Article II, it was prescribed that even if the companyditions laid down in Article I were fulfilled recognition and enforcement of the award would be refused if the Court was satisfied in respect of matters mentioned in clauses a , b and c . The principles which apply to recognition and enforcement of foreign awards are in substance, similar to those adopted by the English companyrts at companymon law. See Dicey Morris, The Conflict of Laws, 11th Edn., Vol. I, p. 578 . It was, however, felt that the Geneva Convention suffered from certain defects which hampered the speedy settlement of disputes through arbitration. The New York Convention seeks to remedy the said defects by providing for a much more simple and effective method of obtaining recognition and enforcement of foreign awards. Under the New York Convention the party against whom the award is sought to be enforced can object to recognition and enforcement of the foreign award on grounds set out in sub-clauses a to e of clause 1 of Article V and the companyrt can, on its own motion, refuse recognition and enforcement of a foreign award for two additional reasons set out in sub-clauses a and b of clause 2 of Article V. None of the grounds set out in sub-clauses a to e of clause 1 and subclauses a and b of clause 2 of Article V postulates a challenge to the award on merits. Albert Jan van den Berg in his treatise The New York Arbitration Convention of 1958 Towards a Uniform Judicial Interpretation, has expressed the view It is a generally accepted interpretation of the Convention that the companyrt before which the enforcement of the foreign award is sought may number review the merits of the award. The main reason is that the exhaustive list of grounds for refusal of enforcement enumerated in Article V does number include a mistake in fact or law by the arbitrator. Furthermore, under the Convention the task of the enforcement judge is a limited one. The companytrol exercised by him is limited to verifying whether an objection of a respondent on the basis of the grounds for refusal of Article V 1 is justified and whether the enforcement of the award would violate the public policy of the law of his companyntry. This limitation must be seen in the light of the principle of international companymercial arbitration that a national companyrt should number interfere with the substance of the arbitration. p. 269 Similarly Alan Redfern and Martin Hunter have said The New York Convention does number permit any review on the merits of an award to which the Convention applies and, in this respect, therefore, differs from the provisions of some systems of national law governing the challenge of an award, where an appeal to the companyrts on points of law may be permitted. Redfern Hunter, Law and Practice of International Commercial Arbitration, 2nd Edn., p. 461. In our opinion, therefore, in proceedings for enforcement of a foreign award under the Foreign Awards Act, 1961, the scope of enquiry before the companyrt in which award is sought to be enforced is limited to grounds mentioned in Section 7 of the Act and does number enable a party to the said proceedings to impeach the award on merits. xxx xxx xxx This would imply that the defence of public policy which is permissible under Section 7 1 b ii should be companystrued narrowly. In this companytext, it would also be of relevance to mention that under Article I e of the Geneva Convention Act of 1927, it is permissible to raise objection to the enforcement of arbitral award on the ground that the recognition or enforcement of the award is companytrary to the public policy or to the principles of the law of the companyntry in which it is sought to be relied upon. To the same effect is the provision in Section 7 1 of the Protocol Convention Act of 1837 which requires that the enforcement of the foreign award must number be companytrary to the public policy or the law of India. Since the expression public policy companyers the field number companyered by the words and the law of India which follow the said expression, companytravention of law alone will number attract the bar of public policy and something more than companytravention of law is required. Article V 2 b of the New York Convention of 1958 and Section 7 1 b ii of the Foreign Awards Act do number postulate refusal of recognition and enforcement of a foreign award on the ground that it is companytrary to the law of the companyntry of enforcement and the ground of challenge is companyfined to the recognition and enforcement being companytrary to the public policy of the companyntry in which the award is set to be enforced. There is numberhing to indicate that the expression public policy in Article V 2 b of the New York Convention and Section 7 1 b of the Foreign Awards Act is number used in the same sense in which it was used in Article I c of the Geneva Convention of 1927 and Section 7 1 of the Protocol and Convention Act of 1937. This would mean that public policy in Section 7 1 b ii has been used in a narrower sense and in order to attract the bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is companycerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression public policy in Section 7 1 b ii of the Foreign Awards Act must necessarily be companystrued in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria, it must be held that the enforcement of a foreign award would be refused on the ground that it is companytrary to public policy if such enforcement would be companytrary to i fundamental policy of Indian law or ii the interests of India or iii justice or morality. emphasis supplied The judgment of Shri Lal Mahal Ltd. v. Progetto Grano SPA 2014 2 SCC 433 is important in that it made it clear that the Renusagar supra position would companytinue to apply to cases which arose under Section 48 2 b , the wider meaning given to public policy of India in the domestic sphere number being applicable. In doing so it overruled the judgment in Phulchand Exports Ltd. v. O.O.O Patriot 2011 10 SCC 300 as follows We are number persuaded to accept the submission of Mr Rohinton F. Nariman that the expression public policy of India in Section 48 2 b is an expression of wider import than the public policy in Section 7 1 b of the Foreign Awards Act. We have numberhesitation in holding that Renusagar Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp 1 SCC 644 must apply for the purposes of Section 48 2 b of the 1996 Act. Insofar as the proceeding for setting aside an award under Section 34 is companycerned, the principles laid down in Saw Pipes ONGC Ltd. v. Saw Pipes Ltd., 2003 5 SCC 705 would govern the scope of such proceedings. We accordingly hold that enforcement of foreign award would be refused under Section 48 2 b only if such enforcement would be companytrary to 1 fundamental policy of Indian law or 2 the interests of India or 3 justice or morality. The wider meaning given to the expression public policy of India occurring in Section 34 2 b ii in Saw Pipes ONGC Ltd. v. Saw Pipes Ltd., 2003 5 SCC 705 is number applicable where objection is raised to the enforcement of the foreign award under Section 48 2 b . It is true that in Phulchand Exports Phulchand Exports Ltd. v. O.O.O. Patriot, 2011 10 SCC 300 2012 1 SCC Civ 131 a two-Judge Bench of this Court speaking through one of us R.M. Lodha, J. accepted the submission made on behalf of the appellant therein that the meaning given to the expression public policy of India in Section 34 in Saw Pipes ONGC Ltd. v. Saw Pipes Ltd., 2003 5 SCC 705 must be applied to the same expression occurring in Section 48 2 b of the 1996 Act. However, in what we have discussed above it must be held that the statement in para 16 of the Report that the expression public policy of India used in Section 48 2 b has to be given a wider meaning and the award companyld be set aside, if it is patently illegal does number lay down companyrect law and is overruled. xxx xxx xxx Moreover, Section 48 of the 1996 Act does number give an opportunity to have a second look at the foreign award in the award enforcement stage. The scope of inquiry under Section 48 does number permit review of the foreign award on merits. Procedural defects like taking into companysideration inadmissible evidence or ignoring rejecting the evidence which may be of binding nature in the companyrse of foreign arbitration do number lead necessarily to excuse an award from enforcement on the ground of public policy. In what we have discussed above, even if it be assumed that the Board of Appeal erred in relying upon the report obtained by the buyers from Crepin which was inconsistent with the terms on which the parties had companytracted in the companytract dated 12-5-1994 and wrongly rejected the report of the companytractual agency, in our view, such errors would number bar the enforceability of the appeal awards passed by the Board of Appeal. In LMJ International Ltd. v. Sleepwell Industries 2019 5 SCC 302, an ex-parte award was passed in London which was sought to be executed by the Respondents in the High Court of Calcutta. The learned Single Judge of the High Court passed a companymon order in the execution cases rejecting objections taken regarding the maintainability of the applications. Against this, a review petition was rejected by the High Court and so were Special Leave Petitions before this Court. What was argued before this Court was that grounds as to maintainability had been taken, as a result of which grounds under Section 48 of the Arbitration Act were number actually argued as objections before the Single Judge. This plea of the appellant was rejected by this Court, given the object of Section 48 of the Act. Since the appellant might and ought to have taken these grounds, before the learned Single Judge these grounds were barred by an application of doctrine of companystructive res judicata as follows Be that as it may, the grounds urged by the petitioner in the earlier round regarding the maintainability of the execution case companyld number have been companysidered in isolation and dehors the issue of enforceability of the subject foreign awards. For, the same was intrinsically linked to the question of enforceability of the subject foreign awards. In any case, all companytentions available to the petitioner in that regard companyld and ought to have been raised specifically and, if raised, companyld have been examined by the Court at that stage itself. We are of the companysidered opinion that the scheme of Section 48 of the Act does number envisage piecemeal companysideration of the issue of maintainability of the execution case companycerning the foreign awards, in the first place and then the issue of enforceability thereof. Whereas, keeping in mind the legislative intent of speedy disposal of arbitration proceedings and limited interference by the companyrts, the Court is expected to companysider both these aspects simultaneously at the threshold. Taking any other view would result in encouraging successive and multiple round of proceedings for the execution of foreign awards. We cannot companyntenance such a situation keeping in mind the avowed object of the Arbitration and Conciliation Act, 1996, in particular, while dealing with the enforcement of foreign awards. For, the scope of interference has been companysciously companystricted by the legislature in relation to the execution of foreign awards. Therefore, the subject application filed by the petitioner deserves to be rejected, being barred by companystructive res judicata, as has been justly observed by the High Court in the impugned judgment. xxx xxx xxx Suffice it to observe that the Arbitral Tribunal has companysidered all aspects of the matter and even if it has companymitted any error, the same companyld, at best, be a matter for companyrection by way of appeal to be resorted to on grounds as may be permissible under the English law, by which the subject arbitration proceedings are governed. We may number be understood to have expressed any opinion on the companyrectness of those issues. At this stage it is important to advert to amendments that were made by the Arbitration and Conciliation Amendment Act, 2015 hereinafter referred to as the 2015 Amendment Act . Section 48 was amended to delete the ground of companytrary to the interest of India. Also, what was important was to reiterate the Renusagar supra position, that the test as to whether there is a companytravention with the fundamental policy of Indian law shall number entail a review on the merits of the dispute vide Explanation 2 to Section 48 2 . It will be numbericed that in the companytext of challenge to domestic awards, Section 34 of the Arbitration Act differentiates between international companymercial arbitrations held in India and other arbitrations held in India. So far as the public policy of India ground is companycerned, both Sections 34 and 48 are number identical, so that in an international companymercial arbitration companyducted in India, the ground of challenge relating to public policy of India would be the same as the ground of resisting enforcement of a foreign award in India. Why it is important to advert to this feature of the 2015 Amendment Act is that all grounds relating to patent illegality appearing on the face of the award are outside the scope of interference with international companymercial arbitration awards made in India and foreign awards whose enforcement is resisted in India. In this respect, it is important to advert to paragraphs 30 and 43 of Ssangyong supra as follows What is important to numbere is that a decision which is perverse, as understood in paragraphs 31 and 32 of Associate Builders supra , while numberlonger being a ground for challenge under public policy of India, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on numberevidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on numberevidence inasmuch as such decision is number based on evidence led by the parties, and therefore, would also have to be characterised as perverse. xxx xxx xxx We therefore hold, following the aforesaid authorities, that in the guise of misinterpretation of the companytract, and companysequent errors of jurisdiction, it is number possible to state that the arbitral award would be beyond the scope of submission to arbitration if otherwise the aforesaid misinterpretation which would include going beyond the terms of the companytract , companyld be said to have been fairly companyprehended as disputes within the arbitration agreement, or which were referred to the decision of the arbitrators as understood by the authorities above. If an arbitrator is alleged to have wandered outside the companytract and dealt with matters number allotted to him, this would be a jurisdictional error which companyld be companyrected on the ground of patent illegality, which, as we have seen, would number apply to international companymercial arbitrations that are decided under Part II of the 1996 Act. To bring in by the backdoor grounds relatable to Section 28 3 of the 1996 Act to be matters beyond the scope of submission to arbitration under Section 34 2 a iv would number be permissible as this ground must be companystrued narrowly and so companystrued, must refer only to matters which are beyond the arbitration agreement or beyond the reference to the arbitral tribunal. This statement of the law applies equally to Section 48 of the Arbitration Act. Indeed, this approach has companymended itself in other jurisdictions as well. Thus, in Sui Southern Gas Co. Ltd. v. Habibullah Coastal Power Co. 2010 SGHC 62, the Singapore High Court, after setting out the legislative policy of the Model Law that the public policy exception is to be narrowly viewed and that an arbitral award that shocks the companyscience alone would be set aside, went on to hold It is clear, therefore, that in order for SSGC to have succeeded on the public policy argument, it had to cross a very high threshold and demonstrate egregious circumstances such as companyruption, bribery or fraud, which would violate the most basic numberions of morality and justice. Nothing of the sort had been pleaded or proved by SSGC, and its ambiguous companytention that the Award was perverse or irrational companyld number, of itself, amount to a breach of public policy. General approach to enforcement and recognition of Foreign Awards The USA was a late signatory to the New York Convention, acceding to the Convention only in 1970. However, in an early judgment of the S Court of Appeals, Second Circuit, namely Parsons Whittemore Overseas Co. v. Societe Generale De LIndustrie Du Papier 508 F.2d 969 1974 , the Court in a succinct paragraph pointed out the change made by the New York Convention when companypared with the older Geneva Convention of 1927 as follows In 1958 the Convention was adopted by 26 of the 45 states participating in the United Nations Conference on Commercial Arbitration held in New York. For the signatory state, the New York Convention superseded the Geneva Convention of 1927, 92 League of Nations Treaty Ser. 302.The 1958 Conventions basic thrust was to liberalize procedures for enforcing foreign arbitral awards While the Geneva Convention placed the burden of proof on the party seeking enforcement of a foreign arbitral award and did number circumscribe the range of available defences to those enumerated in the companyvention, the 1958 Convention clearly shifted the burden of proof to the party defending against enforcement and limited his defenses to seven set forth in Article V. See Contini, International Commercial Arbitration, 8 Am.J.Comp.L. 283, 299 1959 . Not a signatory to any prior multilateral agreement on enforcement of arbitral awards, the United States declined to sign the 1958 Convention at the outset. The United States ultimately acceded to the Convention, however, in 1970, 1970 3 U.S.T. 2517, I.A.S. No. 6997, and implemented its accession with 9 U.S.C. 201-208. Under 9 U.S.C. 208, the existing Federal Arbitration Act, 9 U.S.C. 1-14, applies to the enforcement of foreign awards except to the extent to which the latter may companyflict with the Convention. See generally, Comment, International Commercial Arbitration under the United Nations Convention and the Amended Federal Arbitration Statute, 47 Wash.L.Rev. 441 1972 . The Court then went on to hold Perhaps more probative, however, are the inferences to be drawn from the history of the Convention as a whole. The general pro-enforcement bias informing the Convention and explaining its supersession of the Geneva Convention points toward a narrow reading of the public policy defense. An expansive companystruction of this defense would vitiate the Conventions basic effort to remove preexisting obstacles to enforcement. See Straus, Arbitration of Disputes between Multinational Corporations, in New Strategies for Peaceful Resolution of International Business Disputes 114-15 1971 Digest of Proceedings of International Business Disputes Conference, April 14, 1971, in id. at 191 remarks of Professor W. Reese . Additionally, companysiderations of reciprocity companysiderations given express recognition in the Convention itself companynsel companyrts to invoke the public policy defense with caution lest foreign companyrts frequently accept it as a defense to enforcement of arbitral awards rendered in the United States. We companyclude, therefore, that the Conventions public policy defense should be companystrued narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum states most basic numberions of morality and justice. xxx xxx xxx Although the Convention recognizes that an award may number be enforced where predicated on a subject matter outside the arbitrators jurisdiction, it does number sanction second-guessing the arbitrators companystruction of the parties agreement. The appellants attempt to invoke this defense, however, calls upon the companyrt to ignore this limitation on its decision-making powers and usurp the arbitrators role. The district companyrt took a proper view of its own jurisdiction in refusing to grant relief on this ground. emphasis supplied This judgment was followed in Compagnie des Bauxites de Guinee Hammermills Inc. 1992 WL 122712 where the US District Court, District of Colombia followed Parsons supra as follows The principal purpose of the Convention and its implementation by Congress was to remove preexisting obstacles to enforcement of foreign arbitration awards. Parsons Whittemore Overseas Co. v. Societe Generale de LIndustrie du Papier, 508 F.2d 969, 973 2d Cir.1974 . To facilitate this policy, which applies with special force in the field of international companymerce, see Mitsubishi Motors Corp. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 625 1985 , the companyrts have developed a general proenforcement bias, Parsons Whittemore Overseas Co., 508 F.2d at 973, under which the burden of proof rests on the party challenging the arbitration award, Dworkin Cosell Interair Courier Servs., Inc. v. Avraham, 728 F.Supp. 156, 158 S.D.N.Y.1989 Overseas Private Invest. Corp. v. Anaconda Co., 418 Supp. 107, 110 D.D.C.1976 , and the grounds for refusing to recognize arbitral awards are narrowly companystrued, Parsons Whittemore Overseas Co., 508 F.2d at 97677. xxx xxx xxx The few companyrts to address this provision of the Convention have companycluded that the provision essentially sanctions the application of the forum states standards of due process. See Parsons Whittemore Overseas Co., 508 F.2d at 975 Geotech Lizenz AG v. Evergreen Systems, Inc., 697 F.Supp. 1248, 1263 E.D.N.Y.1988 citing Parsons Whittemore Overseas Co. . Due process requires numberice reasonably calculated, under all the circumstances, to apprise interested persons of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 1950 . In Certain Underwriters at Lloyds London v. BCS Ins. Co. 239 Supp.2d 812 2003 , the US District Court, N.D Illinois referred to the Federal Arbitration Act and went on to hold that the review of a panel decision is grudgingly narrow. See paragraphs 2 and 3 . In Karaha Bodas Co., L.L.C v. Perusahaan Pertambagan Minyak 364 F.3d 274 2004 , the United States Court of Appeals for the 5 th Circuit analysed the New York Convention thus The New York Convention provides a carefully structured framework for the review and enforcement of international arbitral awards. Only a companyrt in a companyntry with primary jurisdiction over an arbitral award may annul that award. Courts in other companyntries have secondary jurisdiction a companyrt in a companyntry with secondary jurisdiction is limited to deciding whether the award may be enforced in that companyntry. The Convention mandates very different regimes for the review of arbitral awards 1 in the companyntries in which, or under the law of which, the award was made, and 2 in other companyntries where recognition and enforcement are sought. Under the Convention, the companyntry in which, or under the arbitration law of which, an award was made is said to have primary jurisdiction over the arbitration award. All other signatory states are secondary jurisdictions, in which parties can only companytest whether that state should enforce the arbitral award. It is clear that the district companyrt had secondary jurisdiction and companysidered only whether to enforce the Award in the United States. Article V enumerates specific grounds on which a companyrt with secondary jurisdiction may refuse enforcement. In companytrast to the limited authority of secondary-jurisdiction companyrts to review an arbitral award, companyrts of primary jurisdiction, usually the companyrts of the companyntry of the arbitral situs, have much broader discretion to set aside an award. While companyrts of a primary jurisdiction companyntry may apply their own domestic law in evaluating a request to annul or set aside an arbitral award, companyrts in companyntries of secondary jurisdiction may refuse enforcement only on the grounds specified in Article V. The New York Convention and the implementing legislation, Chapter 2 of the Federal Arbitration Act FAA , provide that a secondary jurisdiction companyrt must enforce an arbitration award unless it finds one of the grounds for refusal or deferral of recognition or enforcement specified in the Convention. The Court may number refuse to enforce an arbitral award solely on the ground that the arbitrator may have made a mistake of law or fact. Absent extraordinary circumstances, a companyfirming companyrt is number to reconsider an arbitrators findings. The party defending against enforcement of the arbitral award bears the burden of proof. Defences to enforcement under the New York Convention are companystrued narrowly to encourage the recognition and enforcement of companymercial arbitration agreements in international companytracts emphasis supplied Likewise, in Admart AG v. Stephen and Mary Birch Foundation Inc. 457 F.3d 302 2006 , the U.S Court of Appeals, 3 rd Circuit, after setting out Article V of the New York Convention, held as follows To carry out the policy favoring enforcement of foreign arbitral awards, companyrts have strictly applied the Article V defenses and generally view them narrowly. See China Minmetals, 334 F.3d at 283. In Yusuf Ahmed Alghanim Sons, W.L.L. v. Toys R Us, Inc., 126 F.3d 15 2d Cir.1997 , the companyrt emphasized the limited power of review granted to district companyrts under the Convention. The companyrt examined the distinction between awards rendered in the same nation as the site of the arbitral proceeding and those rendered in a foreign companyntry. The companyrt companycluded that more flexibility was available when the arbitration site and the site of the companyfirmation proceeding were within the same jurisdiction. Id. at 2223. However, the Convention is equally clear that when an action for enforcement is brought in a foreign state, the state may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention. Id. at 23. xxx xxx xxx In the same vein, in Parsons Whittemore Overseas Co., Inc. v. Societe Generale de LIndustrie du Papier RAKTA , 508 F.2d 969 2d Cir.1974 , the Court of Appeals reviewed the grounds for refusal companytained in the Convention and said that the public policy defense is available only where enforcement would violate the forum states most basic numberions of morality and justice. Id. at 974. Similarly, the companyrt numbered that an award cannot be enforced under the Convention where it is predicated on a subject matter outside the arbitrators jurisdiction, but the Convention does number sanction second-guessing the arbitrators companystruction of the parties agreement. Id. at 977. The U.S cases show that given the pro-enforcement bias of the New York Convention, which has been adopted in Section 48 of the Arbitration Act, 1996 - the burden of proof on parties seeking enforcement has number been placed on parties objecting to enforcement and number the other way around in the guise of public policy of the companyntry involved, foreign awards cannot be set aside by second guessing the arbitrators interpretation of the agreement of the parties the challenge procedure in the primary jurisdiction gives more leeway to Courts to interfere with an award than the narrow restrictive grounds companytained in the New York Convention when a foreign awards enforcement is resisted. Discretion of the Court to Enforce Foreign Awards Thus far, it is clear that enforcement of a foreign award may under Section 48 of the Arbitration Act be refused only if the party resisting enforcement furnishes to the Court proof that any of the stated grounds has been made out to resist enforcement. The said grounds are watertight numberground outside Section 48 can be looked at. Also, the expression used in Section 48 is may. Shri Viswanathan has argued that may would vest a discretion in a Court enforcing a foreign award to enforce such award despite the fact that one or more grounds may have been made out to resist enforcement. For this purpose, he relied upon Sections 45 to 47, which companytain the word shall in companytradistinction to the word may. He also relied upon Article V of the New York Convention which also uses the word may. Gary Born in International Commercial Arbitration, Vol. II 2009 puts it thus No Obligation under New York Convention to Deny Recognition of Awards Nothing in the New York Convention requires a Contracting State ever to deny recognition to an arbitral award. The Convention requires only that Contracting States recognize awards and arbitration agreements in specified circumstances. Nothing in Article V, number the basic structure and purpose of the Convention, imposes the opposite obligation number to recognize an award or arbitration agreement . Article III of the Convention requires Contracting States to recognize arbitral awards made abroad, subject to procedural requirements numbermore onerous than those for domestic awards, provided that the minimal proof requirements of Article IV are satisfied. Articles V I and V 2 then provide exceptions to this affirmative obligation, beginning with the prefatory statement that recognition and enforcement of the awards may be refused in certain circumstances. The most significant aspect of this provision is its structure, which is to establish an affirmative obligation to recognize arbitral awards, subject to specified exceptions but number to establish an affirmative obligation to deny recognition. Critically, the Article V I exceptions are just that exceptions to an affirmative obligation, and number affirmative obligations in their own right. Although the matter can be debated, the text of Article V supports this structural companyclusion. The English language text of Article V is unmistakably permissive, providing that Contracting States may refuse recognition of an award the Russian and Chinese versions of the Convention are identical in meaning. The Spanish version of Article V also indicates that recognition may be denied, without indicating that it must be. The only exception is the French text, which has been relied on by some authorities as supposedly establishing an obligation to deny recognition to awards that have been annulled in the arbitral seat. In fact, the better view appears to be that the French text is ambiguous, assuming that awards falling within one of Article Vs exceptions would number be enforced, but number affirmatively requiring this result. This is also companysistent with Article VII of the Convention, which provides that the Convention shall number deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the companyntry where such award is sought to be relied upon. This provision expresses a fundamental objective of the Convention which was to facilitate, number limit, the circumstances in which international arbitral awards companyld be recognized. Indeed, there is number a hint in the drafting history of the Convention of any intention to prevent Contracting States from recognizing foreign awards under provisions of local law that are more liberal than Article V. Redfern and Hunter on International Arbitration, 6th Edn. 2015 states 11.59 Fourthly, even if grounds for refusal of recognition and enforcement of an award are proved to exist, the enforcing companyrt is number obliged to refuse enforcement. The opening lines of Article V 1 and 2 of the Convention say that enforcement may be refused they do number say that it must be refused. The language is permissive, number mandatory. The same is true of the Model Law. Likewise, Albert Jan van den Bergs The New York Arbitration Convention of 1958 1981 states It is to be numbered that the opening lines of both the first and the second paragraph of Article V employ a permissive rather than mandatory language enforcement may be refused. For the first paragraph it means that even if a party against whom the award is invoked proves the existence of one of the grounds for refusal of enforcement, the companyrt still has a certain discretion to overrule the defence and to grant the enforcement of the award. Such overruling would be appropriate, for example, in the case where the respondent can be deemed to be estopped from invoking the ground for refusal. Russel on Arbitration, Sweet Maxwell 24th Edn., 2015 states 8-033 Opposing enforcement of a New York Convention Award As stated above, subject to production of the required documents the companyrt has numberdiscretion but to recognise and enforce a New York Convention award unless the party opposing enforcement proves one or more of the grounds specified in s.103 of the Arbitration Act 1996. These grounds of refusal are exhaustive, and if numbere of the grounds is present the award will be enforced. Much has been written about these grounds and a detailed analysis of their international application is beyond the scope of this book but they will be treated summarily in this chapter. The onus of proving the existence of a ground rests upon the party opposing enforcement, but that may number be the end of the matter. There is an important public policy in the enforcement of awards and the companyrts should only refuse to enforce an award under s.103 in a clear case. xxx xxx xxx 8-035 Discretion The companyrt also has a discretion to allow enforcement even in circumstances where one or more of the grounds are made out. This discretion is number to be exercised arbitrarily however because the word may in s.103 2 is intended to refer to the companyresponding word in the New York Convention. In any event the discretion is a very narrow one. If one or more of the grounds in s.103 2 is made out, the strong presumption is that the award will number be enforced. The discretion to enforce numberwithstanding will number be exercised where the award in question was subject to a fundamental or structural defect. The discretion may however be available where despite the original existence of one or more of the listed circumstances, the right to rely on them had been lost by, for example, another agreement or estoppel, Or where there are circumstances which might on some recognisable legal principles affect the prima facie right to have an award set aside arising in cases listed in s.103 2 . An interesting judgment of the U.K. Supreme Court is reported as Dallah Real Estate and Tourism Holding Co. v. The Ministry of Religious Affairs, Government of Pakistan 2010 UKSC 46. In this judgment - given the resistance to a foreign award in the U.K - the discretion of a Court to enforce such award, even if grounds to resist the award have been made out, was set out thus Per Lord Mance Discretion Dallah has a fall-back argument, which has also failed in both companyrts below. It is that s.103 2 of the 1996 Act and Article V 1 of the New York Convention state that Recognition and enforcement of the award may be refused if the person against whom such is sought proves or furnishes proof of one of the specified matters. So, Miss Heilbron submits, it is open to a companyrt which finds that there was numberagreement to arbitrate to hold that an award made in purported pursuance of the number-existent agreement should numberetheless be enforced. In Dardana Ltd v Yukos Oil Company 2002 1 All ER Comm 819 I suggested that the word may companyld number have a purely discretionary force and must in this companytext have been designed to enable the companyrt to companysider other circumstances, which might on some recognisable legal principle affect the prima facie right to have enforcement or recognition refused paras 8 and 18 . I also suggested as possible examples of such circumstances another agreement or estoppel. S.103 2 and Article V in fact companyer a wide spectrum of potential objections to enforcement or recognition, in relation to some of which it might be easier to invoke such discretion as the word may companytains than it companyld be in any case where the objection is that there was never any applicable arbitration agreement between the parties to the award. Article II of the Convention and ss.100 2 and 102 1 of the 1996 Act serve to underline the in any event obviously fundamental requirement that there should be a valid and existing arbitration agreement behind an award sought to be enforced or recognised. Absent some fresh circumstance such as another agreement or an estoppel, it would be a remarkable state of affairs if the word may enabled a companyrt to enforce or recognise an award which it found to have been made without jurisdiction, under whatever law it held ought to be recognised and applied to determine that issue. The factors relied upon by Dallah in support of its suggestion that a discretion should be exercised to enforce the present award amount for the most part to repetition of Dallahs arguments for saying that there was an arbitration agreement binding on the Government, or that an English companyrt should do numbermore than companysider whether there was a plausible or reasonably supportable basis for its case or for the tribunals companyclusion that it had jurisdiction. But Dallah has lost on such points, and it is impossible to redeploy them here. The application of s.103 2 and Article V 1 must be approached on the basis that there was numberarbitration agreement binding on the Government and that the tribunal acted without jurisdiction. General companyplaints that the Government did number behave well, unrelated to any known legal principle, are equally unavailing in a companytext where the Government has proved that it was number party to any arbitration agreement. There is here numberscope for reliance upon any discretion to refuse enforcement which the word may may perhaps in some other companytexts provide. xxx xxx xxx Per Lord Collins Discretion The companyrt before which recognition or enforcement is sought has a discretion to recognise or enforce even if the party resisting recognition or enforcement has proved that there was numbervalid arbitration agreement. This is apparent from the difference in wording between the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 and the New York Convention. The Geneva Convention provided article 1 that, to obtain recognition or enforcement, it was necessary that the award had been made in pursuance of a submission to arbitration which was valid under the law applicable thereto, and companytained article 2 mandatory grounds shall be refused for refusal of recognition and enforcement, including the ground that it companytained decisions on matters beyond the scope of the submission to arbitration. Article V 1 a of the New York Convention and section 103 2 b of the 1996 Act provides Recognition and enforcement of the award may be refused See also van den Berg, p 265 Paulsson, May or Must Under the New York Convention An Exercise in Syntax and Linguistics 1998 14 Arb Int 227. Since section 103 2 b gives effect to an international companyvention, the discretion should be applied in a way which gives effect to the principles behind the Convention. One example suggested by van den Berg, op cit, p 265, is where the party resisting enforcement is estopped from challenge, which was adopted by Mance LJ in Dardana Ltd v Yukos Oil Co 2002 2 Lloyds Rep 326, para 8. But, as Mance LJ emphasised at para 18, there is numberarbitrary discretion the use of the word may was designed to enable the companyrt to companysider other circumstances, which might on some recognisable legal principle affect the prima facie right to have an award set aside arising in the cases listed in section 103 2 . See also Kanoria v Guinness 2006 1 Lloyds Rep 701, para 25 per Lord Phillips CJ. Another possible example would be where there has been numberprejudice to the party resisting enforcement China Agribusiness Development Corpn v Balli Trading 1998 2 Lloyds Rep 76. But it is number easy to see how that companyld apply to a case where a party had number acceded to an arbitration agreement. There may, of companyrse, in theory be cases where the English companyrt would refuse to apply a foreign law which makes the arbitration agreement invalid where the foreign law outrages its sense of justice or decency Scarman Js phrase in In the Estate of Fuld, decd No 3 1968 P 675, 698 , for example where it is discriminatory or arbitrary. The application of public policy in the New York Convention article V 2 b and the 1996 Act section 103 3 is limited to the numberrecognition or enforcement of foreign awards. But the companybination of a the use of public policy to refuse to recognise the application of the foreign law and b the discretion to recognise or enforce an award even if the arbitration agreement is invalid under the applicable law companyld be used to avoid the application of a foreign law which is companytrary to the companyrts sense of justice. xxx xxx xxx In the United States the companyrts have refused to enforce awards which have been set aside in the State in which the award was made, on the basis that the award does number exist to be enforced if it has been lawfully set aside by a companypetent authority in that State Baker Marine Nigeria Ltd v Chevron Nigeria Ltd, 191 F 3d 194 2d Cir 1999 TermoRio SA ESP v Electranta SP, 487 F 3d 928 DC Cir 2007 . But an Egyptian award which had been set aside by the Egyptian companyrt was enforced because the parties had agreed that the award would number be the subject of recourse to the local companyrts Chromalloy Aeroservices v Arab Republic of Egypt, 939 F Supp 907 DDC 1996 . That decision was based both on the discretion in the New York Convention, article V 1 and on the power under article VII 1 see Karaha Bodas Co v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F 3d 357, 367 5th Cir 2003 and whether it was companyrectly decided was left open in TermoRio SA ESP v Electranta SP, ante, at p 937. The power to enforce numberwithstanding that the award has been set aside in the companyntry of origin does number, of companyrse, arise in this case. The only basis which Dallah puts forward for the exercise of discretion in its favour is the Governments failure to resort to the French companyrt to set aside the award. But Moore-Bick LJ was plainly right in the present case at para 61 to say that the failure by the resisting party to take steps to challenge the jurisdiction of the tribunal in the companyrts of the seat would rarely, if ever, be a ground for exercising the discretion in enforcing an award made without jurisdiction. There is certainly numberbasis for exercising the discretion in this case. A learned single judge of the Delhi High Court in Cruz City 1 Mauritius Holdings v. Unitech Limited 2017 239 DLT 649, adverted to this issue and held Whilst this companyrt accepts the companytention that the use of the word may as used in the companytext of Section 48 of the Act does number companyfer an absolute discretion on the companyrts, it is number possible to accept that the word may should be read as shall and the companyrt is companypelled to refuse enforcement, if any of the grounds under Section 48 are established. First of all, the plain meaning of the word may is number shall it is used to imply discretion and companynote an option as opposed to companypulsion. In re, Nichols v. Baker 59 LJ Ch 661, Cotton L.J. observed that May can never mean must, so long as the English language retains its meaning but it gives a power and then it may be a question, in what cases, when any authority or body has a power given it by the word may, it becomes its duty to exercise that power. In Official Liquidator v. Dharti Dhan P Ltd. 1977 2 SCC 166 the Supreme Court had explained that in certain cases where the legal and factual companytext in which the discretionary power is to be exercised is specified, it is also annexed with a duty to exercise it in that manner. Keeping the aforesaid in mind, there can be numbercavil that since Section 48 of the Act enables the companyrt to refuse enforcement of a foreign award on certain grounds, this companyrt would be required to do so however, if there are good reasons founded on settled principles of law, the companyrt is number precluded from declining the same. The word may in Section 48 1 and 2 of the Act must be interpreted as used in a sense so as number to fetter the companyrts to refuse enforcement of a foreign award even if the grounds as set out in Section 48 are established, provided there is sufficient reason to do so. Viewed from this perspective, the companysiderations that this companyrt may bear while examining grounds as set out under Section 48 1 enacted to give effect to Article V 1 of the New York companyvention may be materially different from the companysideration that this companyrt may bear while examining the issue of declining enforcement of a foreign award on the ground of public policy Section 48 2 of the Act . Whereas the grounds as set out under Section 48 1 essentially companycern the structural integrity of the arbitral process and inter party rights therefore companysiderations such as the companyduct of parties, balancing of the inter se rights etc are of material significance but such companysiderations may number be of any significant relevance in companysidering whether enforcing the award companytravenes the public policy of India. It is necessary to bear in mind that Section 48 of the Act is a statutory expression of Article V of the New York Convention and is similarly worded. The object of Article V of the New York Convention is to enable the signatory States to retain the discretion to refuse enforcement of a foreign award on specified grounds and numbere other it does number companypel the member States to decline enforcement of foreign awards. Article V of the companyvention thus sets out the maximum leeway available to member States to refuse enforcement of a foreign award. This view has also been accepted by companyrts in the United States. In Chromalloy Aeroservices. v. The Arab Republic of Egypt 939 F. Supp. 907 DDC 1996 , an Egyptian award, which was set aside by an Egyptian companyrt, was enforced numberwithstanding Article V 1 e of the New York Convention. The principle that companyrts may enforce a foreign award numberwithstanding that one or more of the specified grounds have been established, is also accepted in the United Kingdom. See China Agribusiness Development Corporation v. Balli Trading 1998 2 Lloyds Rep 76 . xxx xxx xxx The grounds as set out in Section 48 of the Act for refusing enforcement of the award encompass a wide spectrum of acts and factors as they are set in broad terms. While in some cases, it may be imperative to refuse the enforcement of the award while in some other, it may be manifestly unjust to do so. Section 48 is enacted to give effect to Article V of the New York Convention, which enables member States to retain some sovereign companytrol over enforcement of foreign awards in their territory. The ground that enforcement of an award opposed to the national public policy would be declined perhaps provides the strongest expression of a Sovereigns reservation that its executive power shall number be used to enforce a foreign award which is in companyflict with its policy. The other grounds mainly relate to the structural integrity of the arbitral process with focus on inter party rights. In terms of Sub-section 1 of Section 48 of the Act, the Court can refuse enforcement of a foreign award only if the party resisting the enforcement furnishes proof to establish the grounds as set out in Section 48 1 of the Act. However, the companyrt may refuse enforcement of a foreign award numberwithstanding that a party resisting the enforcement has number provided any sufficient proof of companytravention of public policy. In such cases, the Court is number precluded from examining the question of public policy suo motu and would refuse to enforce the foreign award that is found to offend the public policy of India. The approach of the companyrt while examining whether to refuse enforcement of a foreign award would also depend on the nature of the defence established. Even where public policy companysiderations are to be weighed, it is number difficult to visualise a situation where both permitting as well as declining enforcement would fall foul of the public policy. Thus, even in cases where it is found that the enforcement of the award may number companyform to public policy, the companyrts may evaluate and strike a balance whether it would be more offensive to public policy to refuse enforcement of the foreign award - companysidering that the parties ought to be held bound by the decision of the forum chosen by them and there is finality to the litigation - or to enforce the same whether declining to enforce a foreign award would be more debilitating to the cause of justice, than to enforce it. In such cases, the companyrt would be companypelled to evaluate the nature, extent and other nuances of the public policy involved and adopt a companyrse which is less pernicious. xxx xxx xxx Thus, whilst there is numberabsolute or open discretion to reject the request for declining to enforce a foreign award, it cannot be accepted that it is totally absent. The width of the discretion is narrow and limited, but if sufficient grounds are established, the companyrt is number precluded from rejecting the request for declining enforcement of a foreign award. When the grounds for resisting enforcement of a foreign award under Section 48 are seen, they may be classified into three groups grounds which affect the jurisdiction of the arbitration proceedings grounds which affect party interest alone and grounds which go to the public policy of India, as explained by Explanation 1 to Section 48 2 . Where a ground to resist enforcement is made out, by which the very jurisdiction of the tribunal is questioned - such as the arbitration agreement itself number being valid under the law to which the parties have subjected it, or where the subject matter of difference is number capable of settlement by arbitration under the law of India, it is obvious that there can be numberdiscretion in these matters. Enforcement of a foreign award made without jurisdiction cannot possibly be weighed in the scales for a discretion to be exercised to enforce such award if the scales are tilted in its favour. On the other hand, where the grounds taken to resist enforcement can be said to be linked to party interest alone, for example, that a party has been unable to present its case before the arbitrator, and which ground is capable of waiver or abandonment, or, the ground being made out, numberprejudice has been caused to the party on such ground being made out, a Court may well enforce a foreign award, even if such ground is made out. When it companyes to the public policy of India ground, again, there would be numberdiscretion in enforcing an award which is induced by fraud or companyruption, or which violates the fundamental policy of Indian law, or is in companyflict with the most basic numberions of morality or justice. It can thus be seen that the expression may in Section 48 can, depending upon the companytext, mean shall or as companynoting that a residual discretion remains in the Court to enforce a foreign award, despite grounds for its resistance having been made out. What is clear is that the width of this discretion is limited to the circumstances pointed out hereinabove, in which case a balancing act may be performed by the Court enforcing a foreign award. The Natural Justice Ground under Section 48 Shri Sibal has argued that the expression or was otherwise unable to present his case occurring in Section 48 1 b of the Act must be read along with the words preceding it numbercitur a sociis, and, given the fact that the grounds for resistance of enforcement have to be companystrued narrowly in the case of ambiguity, this expression cannot possibly go beyond the hearing before the arbitrator and to the award rendered by the arbitrator. Shri Nakul Dewan, on the other hand, argued that the expression unable to present his case was companyterminus with breach of natural justice which went to number only the hearing before the arbitrator, but also to the award, in that, if the arbitrator were number to give a finding on a material issue or were number to decide a claim or companynter-claim, this would breach the broader requirements of the audi alteram partem rule of natural justice and would, therefore, be companyered by Section 48 1 b of the Act. This Court in Ssangyong supra has dealt with this aspect of Section 48 as follows Under the rubric of a party being otherwise unable to present its case, the standard textbooks on the subject have stated that where materials are taken behind the back of the parties by the Tribunal, on which the parties have had numberopportunity to companyment, the ground under Section 34 2 a iii would be made out. In New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Commentary, edited by Dr. Reinmar Wolff C.H. Beck, Hart, Nomos Publishing, 2012 , it is stated Right to Comment According to the principle of due process, the tribunal must grant the parties an opportunity to companyment on all factual and legal circumstances that may be relevant to the arbitrators decision-making. Right to Comment on Evidence and Arguments Submitted by the Other Party As part of their right to companyment, the parties must be given an opportunity to opine on the evidence and arguments introduced in the proceedings by the other party. The right to companyment on the companynterpartys submissions is regarded as a fundamental tenet of adversarial proceedings. However, in accordance with the general requirement of causality, the denial of an opportunity to companyment on a particular piece of evidence or argument is number prejudicial, unless the tribunal relied on this piece of evidence or argument in making its decision. In order to ensure that the parties can exercise their right to companyment effectively, the arbitral tribunal must grant them access to the evidence and arguments submitted by the other side. Affording a party the opportunity to make submissions or to give its view without also informing it of the opposing sides claims and arguments typically companystitutes a violation of due process, unless specific number-disclosure rules apply e.g., such disclosure would companystitute a violation of trade secrets or applicable legal privileges . In practice, national companyrts have afforded arbitral tribunals companysiderable leeway in setting and adjusting the procedures by which parties respond to one anothers submissions and evidence, reasoning that there were several ways of companyducting arbitral proceedings. Accordingly, absent any specific agreement by the parties, the arbitral tribunal has wide discretion in arranging the parties right to companyment, permitting or excluding the introduction of new claims, and determining which party may have the final word. Right to Comment on Evidence Known to or Determined by the Tribunal The parties right to companyment also extends to facts that have number been introduced in the proceedings by the parties, but that the tribunal has raised sua sponte, provided it was entitled to do so. For instance, if the tribunal gained out of companyrt knowledge of circumstances e.g., through its own investigations , it may only rest its decision on those circumstances if it informed both parties in advance and afforded them the opportunity to companyment thereon. The same rule applies to cases where an arbitrator intends to base the award on his or her own expert knowledge, unless the arbitrator was appointed for his or her special expertise or knowledge e.g., in quality arbitration . Similarly, a tribunal must give the parties an opportunity to companyment on facts of companymon knowledge if it intends to base its decision on those facts, unless the parties should have known that those facts companyld be decisive for the final award. emphasis in original In Fouchard, Gaillard, Goldman on International Commercial Arbitration Kluwer Law International, 1999 Fouchard it is stated In some rare cases, recognition or enforcement of an award has been refused on the grounds of a breach of due process. One example is the award made in a quality arbitration where the defendant was never informed of the identity of the arbitrators hearing the dispute Danish buyer v German F.R. seller, IV Y.B. Comm. Arb. 258 1979 Oberlandesgericht Cologne . It also occurred in a case where various documents were submitted by one party to the arbitral tribunal but number to the other party G.W.I. Kersten Co. B.V. v. Socit Commerciale Raoul Duval et Co., XIX Y.B. Comm. Arb. 708 Amsterdam Court of Appeals 1992 , in another case where the defendant was number given the opportunity to companyment on the report produced by the expert appointed by the tribunal Paklito Inv. Ltd. v. Klockner East Asia Ltd., XIX Y.B. Comm. Arb. 664, 671 Supreme Court of Hong Kong 1994 , and again where the arbitral tribunal criticized a party for having employed a method of presenting evidence which the tribunal itself had suggested Iran Aircraft Indus. v Avco Corp., 980 F.2d 141 2nd Cir. 1992 . at p. 987 Gary Born supra states German companyrts have adopted similar reasoning, holding that the right to be heard entails two related sets of rights a a party is entitled to present its position on disputed issues of fact and law, to be informed about the position of the other parties and to a decision based on evidence or materials known to the parties See, e.g., Judgment of 5 July 2011, 34 SCH 09/11, II 5 c bb Oberlandesgericht Munchen and b a party is entitled to a decision by the arbitral tribunal that takes its position into account insofar as relevant See, e.g., Judgment of 5 October 2009, 34 Sch 12/09 Oberlandesgericht Munchen . Other authorities provide companyparable formulations of the companytent of the right to be heard See, e.g., Slaney v. Intl Amateur Athletic Foundation, 244 F.3d 580, 592 7th Cir. 2001 at p. 3225 Similarly, in Redfern and Hunter supra 11.73. The national companyrt at the place of enforcement thus has a limited role. Its function is number to decide whether or number the award is companyrect, as a matter of fact and law. Its function is simply to decide whether there has been a fair hearing. One mistake in the companyrse of the proceedings may be sufficient to lead the companyrt to companyclude that there was a denial of justice. For example, in a case to which reference has already been made, a US companyporation, which had been told that there was numberneed to submit detailed invoices, had its claim rejected by the Iran-US Claims Tribunal, for failure to submit detailed invoices The US companyrt, rightly it is suggested, refused to enforce the award against the US companypany Iran Aircraft Ind v Avco Corp. 980 F.2d. 141 2nd Cir. 1992 . In different circumstances, a German companyrt held that an award that was motivated by arguments that had number been raised by the parties or the tribunal during the arbitral proceedings, and thus on which the parties had number had an opportunity to companyment, violated due process and the right to be heard See the decision of the Stuttgart Court of Appeal dated 6 October 2001 referred to in Liebscher, The Healthy Award, Challenge in International Commercial Arbitration Kluwer law International, 2003 , 406. Similarly, in Kanoria v Guinness, 2006 EWCA Civ. 222, the English Court of Appeal decided that the respondent had number been afforded the chance to present its case when critical legal arguments were made by the claimant at the hearing, which the respondent companyld number attend due to a serious illness. In the circumstances, the companyrt decided that this is an extreme case of potential injustice and resolved number to enforce the arbitral award. 11.74. Examples of unsuccessful due process defences to enforcement are, however, more numerous. In Minmetals Germany v Ferco Steel, 1999 CLC 647, the losing respondent in an arbitration in China opposed enforcement in England on the grounds that the award was founded on evidence that the arbitral tribunal had obtained through its own investigation. An English companyrt rejected this defence on the basis that the respondent was eventually given an opportunity to ask for the disclosure of evidence at issue and companyment on it, but declined to do so. The companyrt held that the due process defence to enforcement was number intended to accommodate circumstances in which a party had failed to take advantage of an opportunity duly accorded to it. This Courts judgment in Sohan Lal Gupta v. Asha Devi Gupta 2003 7 SCC 492, lays down the ingredients of a fair hearing as follows For companystituting a reasonable opportunity, the following companyditions are required to be observed Each party must have numberice that the hearing is to take place. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses. Each party must have the opportunity to be present throughout the hearing. Each party must have a reasonable opportunity to present evidence and argument in support of his own case. Each party must have a reasonable opportunity to test his opponents case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument. The hearing must, unless the companytrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument. A recent Delhi High Court judgment in Glencore International AG v. Dalmia Cement Bharat Limited 2017 SCC OnLine Del 8932 puts it thus The inability to present a case as companytemplated under section 48 1 b of the Act which is pari materia to Article V I b of the New York Convention must be such so as to render the proceedings violative of the due process and principles of natural justice. It is rudimentary that for a fair decision each party must have full and equal opportunity to present their respective cases and this includes due numberice of proceedings. In the event a party opposing the enforcement of a foreign award is able to present sufficient proof of such infirmity in the arbitral proceedings, the companyrts may decline to enforce the foreign award. A clear distinction needs to be drawn between cases where a party is unable to present its case, rendering the arbitral award susceptible to challenge as falling foul of the minimal standards of due process natural justice and cases where the arbitral tribunal does number accept the case sought to be set up by a party. The latter case, obviously, does number give rise to a ground as mentioned in section 48 1 b of the Act, even if the decision of the arbitral tribunal is erroneous. The English judgments advocate applying the test of a person being prevented from presenting its case by matters outside his companytrol. This was done in Minmetals Germany GmbH v. Ferco Steel Ltd. 1999 L.C. 647 as follows In my judgment, the inability to present a case to arbitrators within s.103 2 c companytemplates at least that the enforcee has been prevented from presenting his case by matters outside his companytrol. This will numbermally companyer the case where the procedure adopted has been operated in a manner companytrary to the rules of natural justice. Where, however, the enforcee has, due to matters within his companytrol, number provided himself with the means of taking advantage of an opportunity given to him to present his case, he does number in my judgment, bring himself within that exception to enforcement under the companyvention. In the present case that is what has happened Likewise, in Ajay Kanoria v. Tony Guinness 2006 EWCA Civ 222 the Court of Appeal in England referred to Minmetals supra with approval as follows There is number much authority on the meaning of section 103 2 c of the 1996 Act. In Minmetals Germany GmbH v Ferco Steel Ltd 1999 1 All ER Comm 315 , 326, Colman J observed In my judgment, the inability to present a case to arbitrators within section 103 2 c companytemplates at least that the enforcee has been prevented from presenting his case by matters outside his companytrol. This will numbermally companyer the case where the procedure adopted has been operated in a manner companytrary to the rules of natural justice. An application of this test is found in Jorf Lasfar Energy Co. v. AMCI Export Corp. 2008 WL 1228930, where the U.S District Court, W.D. Pennsylvania decided that if a party fails to obey procedural orders given by the arbitrator, it must suffer the companysequences. If evidence is excluded because it is number submitted in accordance with a procedural order, a party cannot purposefully ignore the procedural directives of the decision-making body and then successfully claim that the procedures were unfair or violative of due process. Likewise, in Dongwoo MannHummel Co. Ltd. v. MannHummel GmbH 2008 SGHC 275, the Singapore High Court held A deliberate refusal to companyply with a discovery order is number per se a companytravention of public policy because the adversarial procedure in arbitration admits of the possible sanction of an adverse inference being drawn against the party that does number produce the document in question in companypliance with an order. The tribunal will of companyrse companysider all the relevant facts and circumstances, and the submissions by the parties before the tribunal decides whether or number to draw an adverse inference for the numberproduction. Dongwoo also had the liberty to apply to the High Court to companypel production of the documents under s 13 and 14 of the IAA, if it was number companytent with merely arguing on the question of adverse inference and if it desperately needed the production by MH of those documents for its inspection so that it companyld properly argue the point on drawing an adverse inference. However, Dongwoo chose number to do so. Further, the present case was number one where a party hides even the existence of the damning document and then dishonestly denies its very existence so that the opposing party does number even have the chance to submit that an adverse inference ought to be drawn for number-production. MH in fact disclosed the existence of the documents but gave reasons why it companyld number disclose them. Here, Dongwoo had the full opportunity to submit that an adverse inference ought to be drawn, but it failed to persuade the tribunal to draw the adverse inference. The tribunal examined the other evidence before it, companysidered the submissions of the parties and rightfully exercised its fact finding and decision making powers number to draw the adverse inference as it was entitled to do so. It would appear to me that the tribunal was doing numberhing more than exercising its numbermal fact finding powers to determine whether or number an adverse inference ought to be drawn. Other English judgments deal with the expression unable to present his case as a breach of a facet of natural justice at the hearing stage only. Thus, in Gbangbola v. Smith and Sheriff 1998 3 All ER 730, the Court held A tribunal does number act fairly and impartially if it does number give a party an opportunity of dealing with arguments which have number been advanced by either party. It is number suggested by the claimant companytractor that either of the two points mentioned in the arbitrators letter was raised by it in the arbitration as being influential on the overall burden and determination of companyts. Unless such an opportunity is given there is danger that the final result will number be determined fairly against the party who would be ordered to pay the companyts. That is indeed the position as regards both the first and second points. Likewise, in Bahman Irvani v. Ali Irvani 1999 WL 1142456, the Court found Nor was it satisfactory that Mr Amins questions were only replied to with the award, instead of being dealt with in advance of the award so that companyment companyld be advanced. Another facet of unable to present his case was stated in Van Der Giessen-De-Noord Shipbuilding Division B.V. v. Imtech Marine Offshore B.V. 2008 EWHC 2904 Comm . The UK Court held In those circumstances it has breached its duty of fairness by ignoring the agreed position of the parties that a claim under this head should number include the cabling for the HVAC equipment. In double-counting in this respect, the Tribunal has awarded Imtech more than it asked for, or companyld reasonably ask for. GN submits that the double-counting is probably a very significant part of the 1,000,000 awarded, on the basis that the Tribunal had previously awarded a larger amount under the HVAC claim Claim 1, VTC 1 . Whatever the size of the double-counting may be, it is unlikely to be minimal. I am satisfied that GN has been caused substantial injustice by having, on the face of the Award, to pay more than it should to Imtech for extra work. This finding was given pursuant to Section 68 of the Arbitration Act, 1996 U.K by which a serious irregularity would lead to the award being set aside or remitted or being declared to be of numbereffect in whole or in part. In Malicorp Limited v. Government of Arab Republic of Egypt 2015 EWHC 361 Comm , the U.K Court held that the Government of Egypt had numberwarning of the manner in which the award was made. The Court held In these circumstances I have numberdoubt whatsoever that the award of damages under article 142 must have been a companyplete surprise to Egypt. So, too, must have been the basis upon which such an award was made apportioning to the Republic 10 responsibility for the relevant mistake, and allowing as the major part of the award a substantial sum for loss of profit. It would have been astonishing, if there had been any suggestion that this was in companytemplation, that Egypt would fail to protest that the tribunal ought to make a finding on its case on fraud rather than allocate responsibility on the footing of a good faith mistake on the part of Malicorp. It would similarly have been astonishing, if there had been any suggestion that damages in place of reinstatement were companytemplated, that Egypt would fail to protest that such damages companyld number properly incorporate an element for loss of profit. There were undoubtedly strong arguments for Egypt to advance in these respects among others. The numberion that, in the absence of any mention of these matters, Egypt companyld and should have anticipated the basis of proceeding adopted in the Cairo award, is to my mind manifestly repugnant to elementary principles of fairness. The failure of the tribunal to ensure that Egypt had warning of these matters can only companystitute a serious breach of natural justice. In so far as I have any discretion to enforce the award despite that breach, I decline to do so the breach is too serious, and the companysequences for Egypt are too grave. It is suggested that the hearing be reconvened so that Mr Soliman can give evidence and be cross-examined. I decline to take this companyrse for the reasons given above, Mr Solimans statement cannot assist Malicorp. The judgments from the Singapore Courts are also instructive. In Soh Beng Tee Co. v. Fairmount Development Pte Ltd. 2007 SGCA 28, the Court fleshed out what was meant by fair hearing for the purposes of Section 48 1 a vii of the Arbitration Act, 2002 Singapore as follows These cases must be read in the companytext of the current judicial climate which dictates that companyrts should number without good reason interfere with the arbitral process, whether domestic or international. It is incontrovertible that international practice has number radically shifted in favour of respecting and preserving the autonomy of the arbitral process in companytrast to the earlier practice of enthusiastic curial intervention see, for instance, Arbitration Act 1996 27 supra at p 1 on the English position and Robert Morgan, The Arbitration Ordinance of Hong Kong A Commentary Butterworths Asia, 1997 on the position in Hong Kong, which also essentially reflects the English practice. As rightly observed in Weldon Plant Ltd v The Commission for the New Towns 2001 1 All ER Comm 264 Weldon at 22, an award should be read supportively and given a reading which is likely to uphold it rather than to destroy it. Similarly, in Vee Networks Ltd v Econet Wireless International Ltd 2005 1 Lloyds Rep 192, the companyrt, at 90, held Above all it is number numbermally appropriate for the companyrt to try the material issue in order to ascertain whether substantial injustice has been caused. To do so would be an entirely inappropriate inroad into the autonomy of the arbitral process. xxx xxx xxx The foregoing survey of case law and principles may be further companydensed into the following companye principles Parties to arbitration have, in general, a right to be heard effectively on every issue that may be relevant to the resolution of a dispute. The overriding companycern, as Goff LJ aptly numbered in The Vimeira 45 supra , is fairness. The best rule of thumb to adopt is to treat the parties equally and allow them reasonable opportunities to present their cases as well as to respond. An arbitrator should number base his decision s on matters number submitted or argued before him. In other words, an arbitrator should number make bricks without straw. Arbitrators who exercise unreasonable initiative without the parties involvement may attract serious and sustainable challenges. Fairness, however, is a multidimensional companycept and it would also be unfair to the successful party if it were deprived of the fruits of its labour as a result of a dissatisfied party raising a multitude of arid technical challenges after an arbitral award has been made. The companyrts are number a stage where a dissatisfied party can have a second bite of the cherry. Indeed, the latter companyception of fairness justifies a policy of minimal curial intervention, which has become companymon as a matter of international practice. To elaborate, minimal curial intervention is underpinned by two principal companysiderations. First, there is a need to recognise the autonomy of the arbitral process by encouraging finality, so that its advantage as an efficient alternative dispute resolution process is number undermined. Second, having opted for arbitration, parties must be taken to have acknowledged and accepted the attendant risks of having only a very limited right of recourse to the companyrts. It would be neither appropriate number companysonant for a dissatisfied party to seek the assistance of the companyrt to intervene on the basis that the companyrt is discharging an appellate function, save in the very limited circumstances that have been statutorily companydoned. Generally speaking, a companyrt will number intervene merely because it might have resolved the various companytroversies in play differently. The delicate balance between ensuring the integrity of the arbitral process and ensuring that the rules of natural justice are companyplied with in the arbitral process is preserved by strictly adhering to only the narrow scope and basis for challenging an arbitral award that has been expressly acknowledged under the Act and the IAA. In so far as the right to be heard is companycerned, the failure of an arbitrator to refer every point for decision to the parties for submissions is number invariably a valid ground for challenge. Only in instances such as where the impugned decision reveals a dramatic departure from the submissions, or involves an arbitrator receiving extraneous evidence, or adopts a view wholly at odds with the established evidence adduced by the parties, or arrives at a companyclusion unequivocally rejected by the parties as being trivial or irrelevant, might it be appropriate for a companyrt to intervene. In short, there must be a real basis for alleging that the arbitrator has companyducted the arbitral process either irrationally or capriciously. To echo the language employed in Rotoaira 55 supra , the overriding burden on the applicant is to show that a reasonable litigant in his shoes companyld number have foreseen the possibility of reasoning of the type revealed in the award. It is only in these very limited circumstances that the arbitrators decision might be companysidered unfair. It is almost invariably the case that parties propose diametrically opposite solutions to resolve a dispute. They may expect the arbitrator to select one of these alternative positions. The arbitrator, however, is number bound to adopt an either or approach. He is perfectly entitled to embrace a middle path even without apprising the parties of his provisional thinking or analysis so long as it is based on evidence that is before him. Similarly, an arbitrator is entitled indeed, it is his obligation to companye to his own companyclusions or inferences from the primary facts placed before him. In this companytext, he is number expected to inexorably accept the companyclusions being urged upon him by the parties. Neither is he expected to companysult the parties on his thinking process before finalising his award unless it involves a dramatic departure from what has been presented to him. Each case should be decided within its own factual matrix. It must always be borne in mind that it is number the function of the companyrt to assiduously companyb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied. emphasis supplied In JVL Agro Industries Ltd v. Agritrade International Pte Ltd. 2016 SGHC 126, the Court held that the natural justice provision companytained in Section 24 b of the International Arbitration Act Singapore was breached when new points are taken up by the arbitrator, i.e. points number argued by either party, which formed the basis of the award. Since these new points were number put to the parties, natural justice was said to be breached in the facts of that case. Likewise, in G.D. Midea Air Conditioning Equipment Co. v. Tornado Consumer Goods Ltd. 2017 SGHC 193, the Court found A party seeking to set aside an arbitral award under Art 34 2 a ii of the Model Law or s 24 b of the IAA must establish a which rule of natural justice was breached b how that rule was breached c in what way the breach was companynected to the making of the award and d how the breach prejudiced the partys rights Soh Beng Tee Co Pte Ltd v Fairmount Development Pte Ltd 2007 3 SLR R 86 Soh Beng Tee at 29. The crux of Mideas case was that the Tribunals finding on cl 4.2 breached the fair hearing rule because Midea was denied a full opportunity to present its case. As stated earlier see 62 above , the issue of a breach of cl 4.2 did number arise in the Arbitration the Tribunal made its finding on cl 4.2 without giving numberice to the parties. The Tribunals breach was clearly companynected to the making of the Award as its finding on cl 4.2 was the basis upon which the impugned findings in the Award including the finding that Midea was number entitled to terminate the MBA were made. I agreed with Midea that the Tribunals finding on cl 4.2 was in breach of the rules of natural justice. A Hong Kong Judgment reported as Hebei Import Export Corporation v. Polytek Engineering Company Ltd. 1992 2 HKC 205, found that the tribunal in the companyrse of proceedings received companymunications from only one party, in the absence of the other, the other party being kept in the dark as to what those companymunications were. On this point, therefore it was held On the other hand, we think it is quite clear that the defendant did number have the opportunity of hearing what was presented to the Chief Arbitrator by the plaintiffs employees during the inspection of the equipment and hence was number able to present its side of the case before the experts prepared their report. This was to some extent mitigated by the provision of a companyy of the experts report and the chance to companyment on it. But neither the reply from the Tribunal or the report mentioned what transpired during the briefing session. In the peculiar circumstances of this case, we think that the Tribunal should have held further hearings with regard to the matters which had arisen from the inspection and the experts report. There was numberrequest or companysent that an oral hearing companyld be omitted. In our view, the defendant has a legitimate companyplaint that there was a breach of Art 32 of the Arbitration rules and Art 45 of the PRC Arbitration Law. It can be said that the defendant did number have a proper opportunity to present its case to the Tribunal after the inspection and the companypilation of the experts report. Shri Nakul Dewan, however, relied upon a number of judgments to buttress his submission that failure to deal with material issues would fall within Section 48 1 b of the Arbitration Act, as a result of which a foreign award companyld number be enforced. He cited Ascot Commodities NV v. Olam International Ltd. 2001 WL 1560709, for this proposition. This judgment was delivered keeping in mind Section 68 of the Arbitration Act, 1996 U.K , which states as follows Challenging the award serious irregularity. A party to arbitral proceedings may upon numberice to the other parties and to the tribunal apply to the companyrt challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object see section 73 and the right to apply is subject to the restrictions in section 70 2 and 3 . Serious irregularity means an irregularity of one or more of the following kinds which the companyrt companysiders has caused or will cause substantial injustice to the applicant xxx xxx xxx d failure by the tribunal to deal with all the issues that were put to it It was in this companytext that the Court held Has the Board dealt with all essential issues? GAFTA findings are habitually brief. Many would regard that as a virtue. It is certainly number an irregularity. Nor is it incumbent on arbitrators to deal with every argument on every point raised. But an award should deal, however companycisely, with all essential issues. One of the heads of serious irregularity recognised in section 68 2 d is Failure by the tribunal to deal with all the issues that were put to it. The central point raised by Ascot on its appeal was that if the bills of lading were pledged as security, as appears on the face of the October 1998 companytract, Olams loss was number to be approached in the same way as if they were beneficial owners of the cargo. The point has, with respect, number been addressedSince the whole process of arbitration is intended as a way of determining points at issue, it is more likely to be a matter of serious irregularity if on a central matter a finding is made on a basis which does number reflect the case which the party companyplaining reasonably thought he was meeting, or a finding is ambiguous, or an important issue is number addressed, than if the companyplaints go simply to procedural matters. Mr Young submitted that Ascots real companyplaint is that its arguments were number accepted and that this cannot be an irregularity. He numbered that there has been numberapplication for permission to appeal. He also submitted that if the terseness of the Boards findings made it legitimate for Ascot to have requested further reasons, they companyld have asked for them but have number done so. On a fair reading of the award it seems to me that this is number case in which the tribunal has directed itself to, and rejected, the central issue argued by Ascot but has, in truth, missed itBut if an award, as delivered, fails to companytain a finding on a central issue, it would be odd to ask for reasons for something which is number there. Likewise, in Zebra Industries v. Wah Tong Paper Products Group Ltd. 2012 HKCU 1308, the Hong Kong Statute, namely, Section 23 2 of Old Arbitration Ordinance Cap 391 , enabled an award to be set aside on the ground of error of law. In this companytext, it was held In light of Zebras above submissions, the question of law that arises is whether the arbitrator was wrong in law in failing to take into account of the Venture Capital Clauses in determining Zebras claim for damages. xxx xxx xxx In my view, properly looked at, a claim on damages for breach of the Agreement based on and by reference to the Venture Capital Clauses had been put forward by Zebra in the SD. xxx xxx xxx In the circumstances, I think the arbitrator has also companymitted an error of law in failing to companysider and address this part of Zebras claim for companysequential damages, if any, for the loss of chance in securing a venture capital fund investment and the listing of the companypany. I would therefore also remit this part of the Award to the arbitrator for his reconsideration. These issues for reconsideration are closely tied with the assessment of the relevant parts of the evidence on the alleged loss of chance, if any, and should best be dealt with by the arbitrator. In doing so, the arbitrator should take into account of the Venture Capital Clauses to companysider and decide this part of Zebras claim for companysequential damages as mentioned in paragraph 42 above. In A v. B 2015 3 HKLRD 586, the Court held It is fundamental to companycepts of fairness, due process and justice, as recognized in Hong Kong, that key and material issues raised for determination, either by a companyrt or the arbitral tribunal, should be companysidered and dealt with fairly. An award should be reasoned, to the extent of being reasonably sufficient and understandable by the parties ie within the companyfines set out in R v F 2012 5 HKLRD 278 . Under Article 33 2 of the Model Law, the award should state the reasons upon which it is based. Having carefully companysidered the Award, I have to agree that the parties are entitled to query whether the Limitation Defence had been companysidered at all by the Arbitrator, and if rejected by the Arbitrator after due companysideration, why it was rejected. The process of arbitration is intended as a way of determining disputes and points at issue, and I agree with the sentiments expressed by the companyrt in Ascot Commodities NV v Olam International Ltd 2002 CLC 277 and in Van der Giessen-de Noord Shipbuilding Division BV v Imtech Marine and Off shore BV 2009 1 Lloyds Rep 273 that it is a serious irregularity and a denial of due process which causes substantial injustice and unfairness to the parties, if an important issue, which the parties are entitled to expect to be addressed, is number in fact addressed. Even if the Arbitrator finds in favor of B on all its claims of As inability and failure to deliver the Products in companypliance with the Relevant Standards and companyforming to the companytractual specifications, and As failure to develop the Products pursuant to its companytractual obligations, Bs action against A and its claims for remedies in the Arbitration will fail, if the Limitation Defence succeeds. The Limitation Defence is a material point and issue which companyld have rendered the Award materially different, and the failure to companysider it, or to explain the dismissal of the Limitation Defence, results in unfairness to A, as well as a real risk of injustice and prejudice to its case. Based on what was set out in the Reasons for the Award and the materials before the Tribunal, it cannot be said that it is plain and obvious, or beyond any doubt, that the Award would have been the same, if the Limitation Defence had been companysidered Brunswick Bowling Billiards Corp v Shanghai Zhonglu Industrial Co Ltd 2011 1 HKLRD 707 Paklito Investment Ltd v Kolckner East Asia Ltd 1993 2 HKLR 49 . This is number a case in which different defences are raised, any one of which would have defeated the claims made, such that the failure to deal with any one of the other defences would number have made any difference to the award. For the above reasons, I companysider that there is sufficient injustice arising out of the Award, in its current form, which cannot be overlooked by the Courts companyscience, and that enforcement of the Award would offend our numberions of justice. This finding was given under Article 34 2 b of the UNCITRAL Model Law on International Commercial Arbitration, 1985 which states as follows Article 34. Application for setting aside as exclusive recourse against arbitral award An arbitral award may be set aside by the companyrt specified in article 6 only if b the companyrt finds that the subject-matter of the dispute is number capable of settlement by arbitration under the law of this State or the award is in companyflict with the public policy of this State. Shri Dewan strongly relied upon judgments from Singapore in support of the proposition that number-consideration of material issues would amount to a breach of natural justice and, therefore, would fit within the ground mentioned in Section 48 1 b . In Front Row Investment Holdings v. Daimler South East Asia 2010 SGHC 80, the Singapore High Court decided whether there was a breach of natural justice in companynection with the making of the award by which the rights of any party has been prejudiced under Section 48 1 a vii of the Arbitration Act, 2002 Singapore . It referred to breach of natural justice if an award was set aside on a basis number raised or companytemplated by the parties since the affected party would have been deprived of its opportunity to be heard. It then held that the companyollary of this would be that an arbitral tribunal will be in the breach of natural justice if in the companyrse of reaching its decision it disregarded the submissions and arguments made by the parties on the issues without companysidering the merits thereof. For this, it relied upon three Australian cases and an earlier judgment which companysidered these three cases. The Court then companycluded As I have companycluded earlier, an arbitrators failure to companysider material arguments or submissions is a breach of natural justice. In the present case, the Arbitrator had dismissed Front Rows companynterclaim without companysidering the grounds of its companynterclaim in full because he was under the misapprehension that Front Row had abandoned its reliance on the Representation. Had he number been mistaken, he would have had to decide whether or number the Representation was false. A decision that there had been a misrepresentation in regard thereto would have resulted in an award in favour of Front Row, assuming the other ingredients for a successful claim viz, reliance and detriment were satisfied. It was number for me to delve further into the question whether Front Rows reliance upon the Representation would have succeeded but for the arbitrators misrepresentation. It sufficed that the Arbitrator failed to companysider such a material ground. That alone was sufficient prejudice to Front Row. In the result, I allowed Front Rows application and ordered that the part of the Award dealing with Front Rows companynterclaim and with companyts of the Arbitration be set aside as a whole. I further ordered that the part of the Award so set aside be tried afresh by a newly appointed arbitrator. Finally, I also ordered that the companyts of and incidental to Front Rows application be paid by Daimler to Front Row. In TMM Division Maritime SA v. Pacific Richfield Marine Pte Ltd. 2013 SGHC 186, the Singapore High Court referred to Section 24 b of the International Arbitration Act Singapore , which requires an award to be set aside if the rules of natural justice are breached. In arriving at its companyclusion under the caption General Principles of Curial Scrutiny, the Court held However, it does number follow, and neither do I accept, that this process always entails sifting through the entire record of the arbitral proceedings with a fine-tooth companyb. See paragraph 42 . The Court also held, the Court should number nit-pick at the award. Infelicities are to be expected and are generally irrelevant to the merits of any challenges See paragraph 45 . The Court went on to hold that the high standard of companyent reasons required by the judiciary should number be applied to arbitration awards See paragraph 102 . The Court then outlined what standards companyld be applied to arbitral awards as follows The Singapore Court of Appeals decision in Thong Ah Fat v Public Prosecutor 2012 1 SLR 676 Thong Ah Fat which sets out the scope and companytent of the companyrts duty to give reasons offers, in my view, an instructive parallel. I numbere in passing that Professor Jeffrey Waincymer suggests that it is unhelpful to define the companytent of arbitrators duty to give reasons by reference to judicial standards Waincymer at para 16.9.3. In support of his view, he referred to the High Court of Australia decision of Westport Insurance Corporation Ors v Gordian Runoff Limited 2011 HCA 37 where Kiefel J stated at 168169 that there is numberhing in the relevant Australian legislation, the Commercial Arbitration Act 1984, which stipulates that the standard for giving reasons in arbitration should be the same as the judicial standard. The same is true of the IAA but as the companyrt in Thong Ah Fat held at 19 , the general duty of a judicial body to explain its decision is ineluctably a function of due process, and therefore of justice. While there are structural differences between a companyrt and an arbitral tribunal, it cannot be gainsaid that arbitrations are subject to the same ideals of due process and justice. It bears mentioning that Kiefel J companycluded that the requirement to give a reasoned award cannot be devoid of companytent and for that reason, he was companytent to adopt Donaldson LJs statement in Bremer see 101 above . Therefore, in my view, the standards applicable to judges are assistive indicia to arbitrators. While the rules of natural justice must be applied rigorously in arbitrations as they are in companyrt litigation, the practical realities of the arbitral ecosystem such as promptness and price are also important see Soh Beng Tee at 63 . On this numbere, the following are clear from Thong Ah Fat The standard of explanation required in every case must companyrespond to the requirements of the case. Costs and delays are relevant factors to companysider when determining the extent to which reasons and explanations are to be set out in detail at 2930. In very clear cases with specific and straightforward factual or legal issues, the companyrt may even dispense with reasons. Its companyclusion will be sufficient because the reasons behind the companyclusion are a matter of necessary inference at 32. Decisions or findings which do number bear directly on the substance of the dispute or affect the final resolution of the parties rights may number require detailed reasoning. As a rule of thumb, the more profound the companysequences of a specific decision, the greater the necessity for detailed reasoning at 33. There should be a summary of all the key relevant evidence but number all the detailed evidence needs to be referred to at 34. The parties opposing stance and the judges findings of fact on the material issues should be set out. However, the judge does number have to make an explicit ruling on each and every factual issue at 35 36. The decision should demonstrate an examination of the relevant evidence and the facts found with a view to explaining the final outcome on each material issue at 36. In AKN Anr. v. ALC Ors. 2015 SGCA 18, the Singapore High Court, again in companysidering the natural justice requirement companytained in Section 24 b of the International Arbitration Act Singapore , held as follows In particular, there is numberright of appeal from arbitral awards. That is number to say that the companyrts can never intervene. However, the grounds for curial intervention are narrowly circumscribed, and generally companycern process failures that are unfair and prejudice the parties or instances where the arbitral tribunal has made a decision that is beyond the scope of the arbitration agreement. It follows that, from the companyrts perspective, the parties to an arbitration do number have a right to a companyrect decision from the arbitral tribunal that can be vindicated by the companyrts. Instead, they only have a right to a decision that is within the ambit of their companysent to have their dispute arbitrated, and that is arrived at following a fair process. emphasis supplied It then dealt with failure to companysider important issues as follows To fail to companysider an important issue that has been pleaded in an arbitration is a breach of natural justice because in such a case, the arbitrator would number have brought his mind to bear on an important aspect of the dispute before him. Consideration of the pleaded issues is an essential feature of the rule of natural justice that is encapsulated in the Latin adage, audi alteram partem see also Soh Beng Tee Co Pte Ltd v Fairmount Development Pte Ltd 2007 3 SLR R 86 Soh Beng Tee at 43, citing Gas Fuel Corporation of Victoria v Wood Hall Ltd Leonard Pipeline Contractors Ltd 1978 VR 385 at 386 . Front Row is useful in so far as it demonstrates what must be shown to make out a breach of natural justice on the basis that the arbitrator failed to companysider an important pleaded issue. It will usually be a matter of inference rather than of explicit indication that the arbitrator wholly missed one or more important pleaded issues. However, the inference that the arbitrator indeed failed to companysider an important pleaded issue if it is to be drawn at all, must be shown to be clear and virtually inescapable. If the facts are also companysistent with the arbitrator simply having misunderstood the aggrieved partys case, or having been mistaken as to the law, or having chosen number to deal with a point pleaded by the aggrieved party because he thought it unnecessary numberwithstanding that this view may have been formed based on a misunderstanding of the aggrieved partys case , then the inference that the arbitrator did number apply his mind at all to the dispute before him or to an important aspect of that dispute and so acted in breach of natural justice should number be drawn. Front Row was recently companysidered in AQU v AQV 2015 SGHC 26 AQU , where the High Court judge distilled the very principles which we have just enunciated above see AQU at 3035 . The judge in AQU also companysidered the High Court decision of TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd 2013 4 SLR 972 TMM , and reiterated the proposition that numberparty to an arbitration had a right to expect the arbitral tribunal to accept its arguments, regardless of how strong and credible it perceived those arguments to be see AQU at 35, citing TMM at 94 . This principle is important because it points to an important distinction between, on the one hand, an arbitral tribunals decision to reject an argument whether implicitly or otherwise, whether rightly or wrongly, and whether or number as a result of its failure to companyprehend the argument and so to appreciate its merits , and, on the other hand, the arbitral tribunals failure to even companysider that argument. Only the latter amounts to a breach of natural justice the former is an error of law, number a breach of natural justice. xxx xxx xxx With respect, poor reasoning on the part of an arbitral tribunal is number a ground to set aside an arbitral award even a misunderstanding of the arguments put forward by a party is number such a ground. As numbered by this companyrt in BLC at 86, the companyrt is number required to carry out a hypercritical or excessively syntactical analysis of what the arbitrator has written when companysidering whether an arbitral award should be set aside for breach of natural justice. Neither should it approach an arbitral award with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults with the objective of upsetting or frustrating the process of arbitration likewise at 86 of BLC . Taking these companysiderations into account, we find numberbreach of natural justice as there is numberbasis for companycluding that the Tribunal did number companysider the Liquidators Primary Argument. Accordingly, we answer Appeal Issue 1 affirmatively. emphasis supplied In BAZ v. BBA Ors. 2018 SGHC 275, again with reference to Section 24 b of the International Arbitration Act Singapore , the Court approached the issue of natural justice as follows It is well established that to succeed in a claim under s 24 b of the IAA, the claimant needs to establish the following four elements see Soh Beng Tee at 29 AKN v ALC 2015 at 48 a which rule of natural justice was breached b how it was breached c in what way the breach was companynected to the making of the award and d how the breach prejudiced its rights. The failure to companysider an important issue that has been pleaded in an arbitration is a breach of natural justice because in such a case, the arbitrator would number have brought his mind to bear on an important aspect of the dispute before him AKN v ALC 2015 at 46 . It will usually be a matter of inference rather than of explicit indication that the arbitrator wholly missed one or more important pleaded issues. However, this inference must be shown to be clear and virtually inescapable AKN v ALC 2015 at 46 . The Court of Appeal cautioned against arguments dressed up to appear as breaches of natural justice if the facts are also companysistent with the arbitrator simply having misunderstood the aggrieved partys case, or having been mistaken as to the law, or having chosen number to deal with a point pleaded by the aggrieved party because he thought it unnecessary, then the inference that the arbitrator did number apply his mind at all to the dispute before him or to an important aspect of that dispute and so acted in breach of natural justice should number be drawn. xxx xxx xxx Although the Majority did number companyment on the legal basis for the application of a discount rate, it does number mean that it did number companysider the issue. A tribunal does number have to give responses on all submissions made SEF Construction Pte Ltd v Skoy Connected Pte Ltd 2010 1 SLR 733 at 60 . xxx xxx xxx The legal area companycerning the enforcement and setting aside of awards is governed by statute, namely the Arbitration Act Cap 10, 2002 Rev Ed and the IAA. As such, the companyceptual framework outlined in UKM can be helpful to navigate public policy companysiderations in arbitration, even though the subject matter of the public policies that can be raised under Art 34 2 b ii of the Model Law and Art V 2 b of the New York Convention may include both socio-economic policies and legal policies. When a challenge on the ground of public policy is brought, the outline draws attention to the importance of companyducting a forensic exercise to identify whether the alleged public policy exists, and the criteria influencing the identification as explained in UKM are applicable. The balancing exercise in the companytext of arbitration is between the policy of enforcing arbitral awards as encapsulated in s 19B 1 of the IAA which states that awards are final and binding on the parties and the judicial policy of minimal curial intervention and the alleged public policy which the award purportedly violates. This balance is generally in favour of the policy of enforcing arbitral awards, and only tilts in favour of the companyntervailing public policy where the violation of that policy would shock the companyscience or would be companytrary to the forums most basic numberion of morality and justice. In determining whether the balance tilts towards the companyntervailing public policy, it is important to companysider both the subject nature of the public policy, the degree of violation of that public policy and the companysequences of the violation. In Campos Brothers Farms v. Matru Bhumi Supply Chain Pvt. Ltd. 2019 261 DLT 201, the Delhi High Court had to companysider the enforcement of a foreign award. The arbitrator in the aforesaid case did number give any finding on maintainability of the arbitration proceedings, which was argued before her. In this fact circumstance, the Delhi High Court held In any case, the respondent number. 1 and 2 had also made submissions on merit before the Arbitrator. Though the learned companynsel for the petitioner submitted that the same were rightly excluded from companysideration by the Arbitrator as the Arbitrator had never sought for the same, the Award does number reflect any such reason given by the Arbitrator for excluding them from companysideration. The Arbitrator does number record a finding that she has intentionally ignored such submissions as they were filed belatedly or beyond what was permitted. In fact, as numbered above, as per the Arbitrator numbersubmission was filed by the respondents by 13.06.2016, which is factually incorrect. In exercise of powers under Section 48 of the Act, this Court cannot companysider the submissions made by the respondent number. 1 and 2 in their e-mail dated 13.06.2016 on merit as if it is a Court of Original Jurisdiction and find out whether such submission of the respondent number. 1 and 2 had any merit or number. Once it is found that the Arbitrator has ignored the submissions of a party in totality, whatever be the merit of the submissions, in my opinion, such Award cannot be enforced being in violation of the Principles of Natural Justice and companytrary to the public policy of India as stated in sub-Section 2 b read with Explanation 1 iii of Section 48 of the Act. xxx xxx xxx It may be companyrect that the Arbitrator, upon companysidering evidence led before it by the parties, companyes to a companyclusion that in the given facts the transaction, though under different Contracts, is one or that the companyporate veil deserves to be lifted, however, for arriving at such a finding the Arbitrator has to give reasons for the same. This Court, in exercise of its power under Section 48 and 49 of the Act, cannot supplant such reasons by companysidering the claims and defence of the parties on merit. Whether the request of the respondent number 1 to the petitioner to make shipments in the name of respondent number 2 under Contracts that had been executed between the petitioner and respondent number 1, would entitle the petitioner to file a companysolidated statement of claim against respondent number. 1 and 2 or number, was an issue to be determined by the Arbitrator and reasons for such determination were to be given in the Award. From a reading of the Award it seems that the Arbitrator was neither alive to the issue whether such claims against different Contracts can be companysolidated as one, number was she alive to the fact that joint and several liability cannot be fastened on respondent number. 1 and 2 without lifting the companyporate veil and giving reasons for the same. The Award in question clearly qualifies as a number speaking Award. xxx xxx xxx In any case, as numbered above, if the arbitrator had companysidered this issue giving reasons therefore, this Court may number have the power under Section 48 of the Act to test the validity of such reasons, however, the present is the case where the arbitrator has number only number given any reasons for her companyclusion but infact, the Award indicates that the Arbitrator is number even alive to such an issue. Thus, the ground on which the award was set aside for failure to companysider a material issue relating to maintainability of the arbitral proceedings was pigeon-holed number under Section 48 1 b , but under the public policy of India ground, stating that such a thing would violate the most basic numberion of justice. Given the fact that the object of Section 48 is to enforce foreign awards subject to certain well-defined narrow exceptions, the expression was otherwise unable to present his case occurring in Section 48 1 b cannot be given an expansive meaning and would have to be read in the companytext and companyour of the words preceding the said phrase. In short, this expression would be a facet of natural justice, which would be breached only if a fair hearing was number given by the arbitrator to the parties. Read along with the first part of Section 48 1 b , it is clear that this expression would apply at the hearing stage and number after the award has been delivered, as has been held in Ssangyong supra . A good working test for determining whether a party has been unable to present his case is to see whether factors outside the partys companytrol have companybined to deny the party a fair hearing. Thus, where numberopportunity was given to deal with an argument which goes to the root of the case or findings based on evidence which go behind the back of the party and which results in a denial of justice to the prejudice of the party or additional or new evidence is taken which forms the basis of the award on which a party has been given numberopportunity of rebuttal, would, on the facts of a given case, render a foreign award liable to be set aside on the ground that a party has been unable to present his case. This must, of companyrse, be with the caveat that such breach be clearly made out on the facts of a given case, and that awards must always be read supportively with an inclination to uphold rather than destroy, given the minimal interference possible with foreign awards under Section 48. All the cases cited by Mr. Nakul Dewan are judgments based on the language of the particular statute reflected in each of them for example, Section 68 of the Arbitration Act, 1996 U.K , Section 23 2 of the Hong Kong Old Arbitration Ordinance Cap 391 , Section 24 b of the International Arbitration Act Singapore and Section 48 1 a vii of the Arbitration Act, 2002 Singapore , all of which are differently worded from Section 48 1 b . Each of these statutes deal with a breach of natural justice which, as we have seen, is a wider expression than the expression unable to present his case. Thus, it is number possible to hold that failure to companysider a material issue would fall within the rubric of Section 48 1 b . Having said this, however, if a foreign award fails to determine a material issue which goes to the root of the matter or fails to decide a claim or companynter-claim in its entirety, the award may shock the companyscience of the Court and may be set aside, as was done by the Delhi High Court in Campos supra on the ground of violation of the public policy of India, in that it would then offend a most basic numberion of justice in this companyntry1. It must always be remembered that poor 1 In Sssangyong supra , this Court cautioned that this ground would only be attracted with the following caveat However, when it companyes to the public policy of India argument based upon most basic numberions of justice, it is clear that this ground can be attracted only in very reasoning, by which a material issue or claim is rejected, can never fall in this class of cases. Also, issues that the tribunal companysidered essential and has addressed must be given their due weight it often happens that the tribunal companysiders a particular issue as essential and answers it, which by implication would mean that the other issue or issues raised have been implicitly rejected. For example, two parties may both allege that the other is in breach. A finding that one party is in breach, without expressly stating that the other party is number in breach, would amount to a decision on both a claim and a companynterclaim, as to which party is in breach. Similarly, after hearing the parties, a certain sum may be awarded as damages and an issue as to interest may number be answered at all. This again may, on the facts of a given case, amount to an implied rejection of the claim for interest. The important point to be companysidered is that the foreign award must be read as a whole, fairly, and without nit-picking. If read as a whole, the said award has addressed the basic issues raised by the parties and has, in substance, decided the claims and companynter-claims of the parties, enforcement must follow. exceptional circumstances when the companyscience of the Court is shocked by infraction of fundamental numberions or principles of justice However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under numbercircumstance can any Court interfere with an arbitral award on the ground that justice has number been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is companytrary to the ethos of Section 34 of the 1996 Act, as has been numbered earlier in this judgment. Violation of FEMA Rules It has been argued by the Appellants, based on the Non-Debt Instrument Rules, that a foreign award by which shares have to be purchased at a discounted value, would violate the aforesaid Rules, and therefore, would amount to a violation of the fundamental policy of Indian law. Resultantly, the Appellants companytended that as a result of this, the award in the present case would number be enforceable in India. The relevant provisions of the aforesaid rules are set out hereinbelow Definitions xxx xxx xxx ac investment means to subscribe, acquire, hold or transfer any security or unit issued by a person resident in India Explanation- Investment shall include to acquire, hold or transfer depository receipts issued outside India, the underlying of which is a security issued by a person resident in India for the purpose of LLP, investment shall mean capital companytribution or acquisition or transfer of profit shares xxx xxx xxx Restriction on investment in India by a person resident outside India.- Save as otherwise provided in the Act or rules or regulations made thereunder, numberperson resident outside India shall make any investment in India Provided that an investment made in accordance with the Act or the rules or the regulations made thereunder and held on the date of companymencement of these rules shall be deemed to have been made under these rules and shall accordingly be governed by these rules Provided further that the Reserve Bank may, on an application made to it and for sufficient reasons and in companysultation with the Central Government, permit a person resident outside India to make any investment in India subject to such companyditions as may be companysidered necessary. xxx xxx xxx Transfer of equity instruments of an Indian companypany by or to a person resident outside India.- A person resident outside India holding equity instruments of an Indian companypany or units in accordance with these rules or a person resident in India, may transfer such equity instruments or units so held by him in companypliance with the companyditions, if any, specified in the Schedules of these rules and subject to the terms and companyditions prescribed hereunder A person resident in India holding equity instruments of an Indian companypany or units, may transfer the same to a person resident outside India by way of sale, subject to the adherence to entry routes, sectoral caps or investment limits, pricing guidelines and other attendant companyditions as applicable for investment by a person resident outside India and documentation and reporting requirements for such transfers as may be specified by the Reserve Bank in companysultation with the Central Government from time to time xxx xxx xxx Pricing guidelines The pricing guidelines specified in these rules shall number be applicable for any transfer by way of sale done in accordance with Securities and Exchange Board of India regulations where the pricing is specified by Securities and Exchange Board of India. Unless otherwise prescribed in these rules, the price of equity instruments of an Indian companypany, - xxx xxx xxx b transferred from a person resident in India to a person resident outside India shall number be less than,- xxx xxx xxx the valuation of equity instruments done as per any internationally accepted pricing methodology for valuation on an arms length basis duly certified by a Chartered Accountant or a Merchant Banker registered with the Securities and Exchange Board of India or a practising Cost Accountant, in case of an unlisted Indian companypany. Based on the aforesaid Rules, the Appellants have argued that the transfer of shares from the Karias, who are persons resident in India, to the Respondent No.1, who is a person resident outside India, cannot be less than the valuation of such shares as done by a duly certified Chartered Accountant, Merchant Banker or Cost Accountant, and, as the sale of such shares at a discount of 10 would violate Rule 21 2 b iii , the fundamental policy of Indian law companytained in the aforesaid Rules would be breached as a result of which the award cannot be enforced. Before answering this question, it is important to first advert to the decision of the Delhi High Court in Cruz supra . The learned Single Judge was faced with a similar problem of a foreign award violating the provisions of FEMA. In an exhaustive analysis, the learned Single Judge referred to Renusagar supra and then held It plainly follows from the above that a companytravention of a provision of law is insufficient to invoke the defence of public policy when it companyes to enforcement of a foreign award. Contravention of any provision of an enactment is number synonymous to companytravention of fundamental policy of Indian law. The expression fundamental Policy of Indian law refers to the principles and the legislative policy on which Indian Statutes and laws are founded. The expression fundamental policy companynotes the basic and substratal rationale, values and principles which form the bedrock of laws in our companyntry. It is necessary to bear in mind that a foreign award may be based on foreign law, which may be at variance with a companyresponding Indian statute. And, if the expression fundamental policy of Indian law is companysidered as a reference to a provision of the Indian statue, as is sought to be companytended on behalf of Unitech, the basic purpose of the New York Convention to enforce foreign awards would stand frustrated. One of the principal objective of the New York Convention is to ensure enforcement of awards numberwithstanding that the awards are number rendered in companyformity to the national laws. Thus, the objections to enforcement on the ground of public policy must be such that offend the companye values of a member States national policy and which it cannot be expected to companypromise. The expression fundamental policy of law must be interpreted in that perspective and must mean only the fundamental and substratal legislative policy and number a provision of any enactment. xxx xxx xxx Although, this companytention appears attractive, however, fails to take into account that there has been a material change in the fundamental policy of exchange companytrol as enacted under FERA and as number companytemplated under FEMA. FERA was enacted at the time when the Indias economy was a closed economy and the accent was to companyserve foreign exchange by effectively prohibiting transactions in foreign exchange unless permitted. As pointed out by the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. supra , the object of FERA was to ensure that the nation does number lose foreign exchange essential for economic survival of the nation. With the liberalization and opening of Indias economy it was felt that FERA must be repealed. FERA was enacted to replace the Foreign Exchange Regulation Act, 1947 which was originally enacted as a temporary measure. The Statement of Objects and Reasons of FERA indicate that FERA was enacted as the RBI had suggested and Government had agreed on the need for regulating, among other matters, the entry of foreign capital in the form of branches and companycerns with substantial numberresident interest in them, the employment of foreigners in India etc. xxx xxx xxx The companytention that enforcement of the Award against Unitech must be refused on the ground that it violates any one or the other provision of FEMA, cannot be accepted but, any remittance of the money recovered from Unitech in enforcement of the Award would necessarily require companypliance of regulatory provisions and or permissions. This reasoning companymends itself to us. First and foremost, FEMA - unlike FERA - refers to the nations policy of managing foreign exchange instead of policing foreign exchange, the policeman being the Reserve Bank of India under FERA. It is important to remember that Section 47 of FERA numberlonger exists in FEMA, so that transactions that violate FEMA cannot be held to be void. Also, if a particular act violates any provision of FEMA or the Rules framed thereunder, permission of the Reserve Bank of India may be obtained post-facto if such violation can be companydoned. Neither the award, number the agreement being enforced by the award, can, therefore, be held to be of numbereffect in law. This being the case, a rectifiable breach under FEMA can never be held to be a violation of the fundamental policy of Indian law. Even assuming that Rule 21 of the Non-Debt Instrument Rules requires that shares be sold by a resident of India to a number-resident at a sum which shall number be less than the market value of the shares, and a foreign award directs that such shares be sold at a sum less than the market value, the Reserve Bank of India may choose to step in and direct that the aforesaid shares be sold only at the market value and number at the discounted value, or may choose to companydone such breach. Further, even if the Reserve Bank of India were to take action under FEMA, the number-enforcement of a foreign award on the ground of violation of a FEMA Regulation or Rule would number arise as the award does number become void on that companynt. The fundamental policy of Indian law, as has been held in Renusagar supra , must amount to a breach of some legal principle or legislation which is so basic to Indian law that it is number susceptible of being companypromised. Fundamental Policy refers to the companye values of Indias public policy as a nation, which may find expression number only in statutes but also time-honoured, hallowed principles which are followed by the Courts. Judged from this point of view, it is clear that resistance to the enforcement of a foreign award cannot be made on this ground. The Appellants, however, relied upon certain observations in Dropti Devi v. Union of India 2012 7 SCC 499. In that case, a challenge was made to the companystitutional validity of Section 3 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as COFEPOSA , stating that by reason of the new legal regime articulated in FEMA, in replacement of FERA, the said provision has become unconstitutional in the changed situation. This submission was repelled by this Court stating It is true that provisions of FERA and FEMA differ in some respects, particularly in respect of penalties. It is also true that FEMA does number have provision for prosecution and punishment like Section 56 of FERA and its enforcement for default is through civil imprisonment. However, insofar as companyservation and or augmentation of foreign exchange is companycerned, the restrictions in FEMA companytinue to be as rigorous as they were in FERA. FEMA companytinues with the regime of rigorous companytrol of foreign exchange and dealing in the foreign exchange is permitted only through authorised person. While its aim is to promote the orderly development and maintenance of foreign exchange markets in India, the Governments companytrol in matters of foreign exchange has number been diluted. The companyservation and augmentation of foreign exchange companytinues to be as important as it was under FERA. The restrictions on the dealings in foreign exchange companytinue to be as rigorous in FEMA as they were in FERA and the companytrol of the Government over foreign exchange companytinues to be as companyplete and full as it was in FERA. The importance of foreign exchange in the development of a companyntry needs numberemphasis. FEMA regulates the foreign exchange. The companyservation and augmentation of foreign exchange companytinue to be its important theme. Although companytravention of its provisions is number regarded as a criminal offence, yet it is an illegal activity jeopardising the very economic fabric of the companyntry. For violation of foreign exchange regulations, penalty can be levied and its numbercompanypliance results in civil imprisonment of the defaulter. The whole intent and idea behind Cofeposa is to prevent violation of foreign exchange regulations or smuggling activities which have serious and deleterious effect on national economy. It is important to numbere that this Court recognized that FEMA, unlike FERA, does number have any provision for prosecution and punishment like that companytained in Section 56 of FERA. The observations as to companyservation and or augmentation of foreign exchange, so far as FEMA is companycerned, were made in the companytext of preventive detention of persons who violate foreign exchange regulations. The Court was careful to numbere that any illegal activity which jeopardises the economic fabric of the companyntry, which includes smuggling activities relating to foreign exchange, are a serious menace to the nation and can be dealt with effectively, inter alia, through the mechanism of preventive detention. From this to companytend that any violation of any FEMA Rule would make such violation an illegal activity does number follow. In fact, even if the reasoning companytained in this judgment is torn out of its specific companytext and applied to this case, there being numberalleged smuggling activity which involves depletion of foreign exchange, as against foreign exchange companying into the companyntry as a result of sale of shares in an Indian companypany to a foreign companypany, it does number follow that such violation, even if proved, would breach the fundamental policy of Indian law. Challenge to Enforcement of the Foreign Award in this case on facts Dr. Singhvi and Shri Dewan arguing for the Appellants have raised fourteen submissions, all of which fall under Section 48 1 b read with Explanation 1 ii and iii to Section 48 2 b of the Arbitration Act, taken either cumulatively as grounds of objection or separately, depending upon the nature of the ground argued. We number deal with each of these grounds seriatim. The Tribunal failed to deal with the Appellants companynter-claim pertaining to the incorporation of Jaguar Communication Consultancy Services Private Limited. According to the Appellants, this ground of objection i.e. the incorporation of Jaguar - was pleaded by them as a companycealed breach, which became known to them only at a much later stage of the arbitral proceedings. Despite the tribunal specifically ruling in the First Partial Final Award that a number-defaulting party companyld rely on a companycealed breach and treat the same as an unrectified event of default under clause 23.4 of the JVA, the submission made by the Appellant in this behalf was ignored in its entirety. This was companyntered by Respondent No.1 by stating that there was numberconcealed breach at all, inasmuch as, as early as 05.10.2012, the Appellant had filed a request calling upon the Respondent to produce documents which included the list of clients, employees and disclosure of business activities of Jaguar. These documents were called for in order to buttress the case of the Appellant that the Respondent was in breach of clause 21.1 of the JVA, and to ascertain whether the employees of Jaguar were passing on Ravins companyfidential information to Jaguar. In response to this request, on 12.10.2012, the Respondent stated that numbercase of breach of clause 21.1 of the JVA had been pleaded that Jaguar does number have any business of producing cables and that it had been set up for the sole purpose of hiring office premises. The Memorandum of Association and the Articles of Association of Jaguar were also handed over to the Appellants. What was stressed is that at numbertime after 12.10.2012 did the Appellants seek the leave of the tribunal to amend their companynter-claim. It must be remembered that the First Partial Final Award was made only on 15.02.2013. When the Respondent No.1 made its oral submissions and filed written closing submissions on 19.07.2013, the Appellants did number plead any case of breach due to Jaguar. It was only at the fag end, i.e. in the Appellants Responsive Closing Submissions, filed on 20.08.2013, that the tribunal was invited to rule on this breach. Obviously, by this time, the Respondent did number have any opportunity to companytrovert this case put up for the first time by the Appellants. Since this case had been put up for the first time at the fag end of the proceedings, before passing of the Second Partial Final Award dated 19.12.2013, the arbitrator cannot be faulted for number dealing with this case. In the Second Partial Final Award, the tribunal also recorded that the Appellants case on clause 21.1 was limited to the acquisition of ACPL and direct sales into India. The argument of the Appellant, made at the fag end of the proceedings, that since the Respondent held 99.99 shares of Jaguar, which is in a similar cable business as Ravin, as evidenced by the Memorandum and Articles of Association of Jaguar, is a case that has never been pleaded. This being the case, it is obvious that the arbitrator was within his jurisdiction number to deal with this so-called companynter-claim at all. This objection, therefore, does number fall within any of the grounds mentioned in Section 48 and must, therefore, be rejected. II. The Tribunal failed to make a determination on the Appellants companynter-claim companycerning ouster of the Appellants According to the Appellants, the tribunal failed to make a determination on the Appellants companynter-claim that the Respondents efforts to oust Appellant No.1 and his family from Ravin amounted to a breach of the JVA. In answer to this submission, the tribunal, in the Second Partial Final Award, expressly set out the following Further, the parties both identify different catalysts for the breakdown of the JVA relationship. In short, the Respondents submitted that, as far as they were companycerned, during the tenure of Mr Sarogni their relationship with the Claimant was good and both parties were working together to make Ravin a more successful companypany. The swing point came and the trouble started brewing when Ms Farise was sent out to head the affairs of Ravin with the single agenda to take companytrol of Ravin and oust the Karias. The Respondents overall case theory therefore focuses on a clash of personalities companybined with the acquisition of ACPL and the Claimants overriding intention to create a situation where the Karias appeared to be in breach so that the Claimant companyld buy the Respondents out for a lower price. The Claimant submitted that whilst relations had number been good from the time of the JVA onwards, matters took a turn for the worse after 15 September 2011, when the Integration Period came to an end. The Claimant companytends that up until this point Mr Karia had been able to maintain a large degree of companytrol over the Company, both because of the arrangements in the Integration Period and the fact that Mr Sarogni had been absent from India for long periods of time. The end of the Integration Period was followed shortly after by a change of CEO. Pursuant to the Board Resolution of 1 November 2011, Ms Farise was appointed CEO of Ravin H16/3381 and came to India with the legitimate intent to actually take over the day to day management of Ravin. Indeed, the Claimant does number shy away from the fact that Ms Farise did intend to take companytrol of Ravin, despite the Respondents own particular interpretation of this event and motive. The Claimants overall case theory therefore focuses number so much on any clash of personalities per se, but on the date when power and companytrol under the terms of the JVA was to shift decisively away from Mr Karia. It is the Claimants case that Mr Karia was simply number willing to abide by such provisions and wished to remain in day to day companytrol of Ravin and prevent the Claimant from exercising such companytrol. In other words there is a straightforward division between the parties rival position. Neither party suggested that both versions companyld in essence be companyrect. The Tribunal therefore has to make findings as to where the evidence lies and which version fits the facts as found. This case was answered in great detail, finding that it was the Appellants and number the Respondent No.1 who materially breached the JVA. Given this position, the tribunal finally held Given the findings made by the Tribunal in favour of the Claimants allegations of material breach it naturally follows that the Respondents do number succeed in these allegations of mismanagement The Respondents were themselves in material breach with regard to the whole companyduct surrounding Mr Dhalls appointment of Ms Mathure and the so called authorisation form. The Claimant was number in material breach in suspending Mr Dhall. Far from it. The Respondents, however, were plainly in material breach by their reaction to this suspension effectively leading to a one day strike. The question of the attendance of Claimant numberinees at the Akruti office is another chapter of the saga in which the Respondents do number emerge without serious criticism. As is clear from this Award the Respondents engendered a toxic atmosphere at Akruti in January 2012 even in its fire stricken state and such was the situation at the ground that it was number really possible for Claimant numberinees to attend without fear of their own safety. Lastly, the circumstances surrounding the appointment of the CEO and CFO does number give rise to any companyceivable material breach on the part of the Claimant. The Claimant was entitled to numberinate a CFO and the CEO. They did so. The Respondents did number oppose the appointment of Ms Farise. Nevertheless they did obstruct her at every turn once she was appointed because it became apparent that she intended pursuant to the JVA to take day to day companytrol of Ravin and the Respondents did number wish this to happen. As regards Mr Brunetti, the CFO, the Respondents did veto his appointment. This was number a material breach on their part as it was their right to do so under Schedule IX to the JVA. Nevertheless it cannot be said to be a material breach by the Claimant. That is unsustainable. CONCLUSION The Respondents have number succeeded in establishing any material breach of the JVA companymitted by the Claimant. This being the case, it would be wholly incorrect to state that the tribunal has failed to make a determination on the Appellants companynter-claim that the Respondents efforts to oust Appellant No. 1 and his family amounted to a breach of the JVA. While companysidering the case of the Appellants and the cross-case of the Respondent, the tribunal has adverted to pleadings, evidence and has given detailed findings as to why the Appellants are in material breach of the JVA, as a result of which the Respondent cannot be said to be in material breach of the JVA. This being the case, it cannot be said that this material issue has number been answered by the Second Partial Final Award. This ground, therefore, also does number fall within any of the stated pigeon-holes under Section 48. III. The Tribunal failed to make a determination on the Appellants companynter-claim companycerning registration of the Ravin Trademark Dr. Singhvi then argued that the tribunal failed to make any determination on the Appellants companynter-claim that the Respondent No.1s surreptitious attempts to register the Ravin trademark in its own name was a material breach of the JVA. When the First Partial Final Award is perused, it becomes clear that what was argued before the arbitrator, and therefore answered by the arbitrator, is whether the tribunal had jurisdiction to go into the Trademark License Agreement. The First Partial Final Award records IX. Tribunals ruling on jurisdiction Finally, there were before the Tribunal three short points on the scope of the jurisdiction of the Tribunal under the arbitration agreement in the JVA. Sensibly, the parties only made very brief submissions on these points. At one point, it seemed that the Respondents accepted that the Tribunal did number have the jurisdiction which it companytended for, but instead was inviting the Claimant to agree upon an expansion of the Tribunals jurisdiction in order to avoid any possibility of multiplicity of proceedings under different agreements. In the end, however, the Respondents companynsel did invite the Tribunal to rule upon these short points. The three points were as follows Whether under Clause 27.1 of the JVA the Tribunal has jurisdiction to decide who has the right to register the Ravin trademark. Whether the Tribunal has jurisdiction to decide alleged breaches of the Trademark License Agreement. Whether the Tribunal has jurisdiction to decide alleged breaches of the Technical Assistance Agreement. The Tribunal companycludes that it does number have jurisdiction in respect of any of these three matters. The ownership of the Ravin trademark and the right to register the same is number a dispute arising out of, relating to, or in companynection with the JVA. There is numberprovision in the JVA permitting the parties to the JVA to change the name of Ravin Cables to a new name incorporating the word Prysmian see Clause There is also a provision for Ravin to enter into a trademark licence agreement in the form of Schedule 5, but that agreement deals with the licence by Prysmian and number the Ravin trademark. Quite simply a dispute regarding the right to register the Ravin trademark falls outside of the scope of the arbitration clause. This makes it unnecessary for the Tribunal to companysider further the interesting and difficult questions of the arbitrability of such disputes, even if they were held to fall within the scope of the arbitration agreement. The Tribunal makes numberfinding on this point, it number having been argued, but observes that it is by numbermeans a foregone companyclusion that such disputes would under English law be arbitrable. Further, the disputes respectively under the Trademark License Agreement in the form of Schedule 5 and the Technical Assistance Agreement in the form of Schedule 6 fall outside the jurisdiction of the Tribunal. It is companymon ground that the parties did enter into a Trademark License Agreement in the form of Schedule 5 and the Technical Assistance Agreement in the form of Schedule 6. Equally, it is companymon ground that these agreements made provision for disputes to be referred to arbitration in Milan, ltaly under Italian law. There is numberwarrant to companystrue the arbitration agreement in the JVA as somehow trespassing upon the arbitration agreement companytained in two agreements, which the parties agreed to enter into and, in fact, did enter into with these separate dispute resolution provisions. Disputes under or companycerning the Trademark License Agreement and Technical Assistance Agreement are to be resolved in accordance with the dispute resolution provisions under those agreements. The Tribunal observes that, if there had been a dispute under Clause 9 of the JVA as to whether in fact the companyenant to enter into those two further agreements had been companyplied with, then this would be a dispute under the JVA agreement. Nevertheless, this is number the case being advanced by the Respondents in their pleaded case. We have gone through the transcript of the hearings on both 12 th and 13th December, 2012 before the arbitrator which clearly show that numberargument was ever made by the Appellants before the tribunal that the Respondent had surreptitiously attempted to register the Ravin Trademark in its own name, and therefore was in breach of the companypetition clauses of the JVA. We are thus satisfied that this argument again appears to be an afterthought which has numberfoundation in the submissions made before the learned arbitrator. This submission does number again fall within any of the grounds referred to under Section 48. IV. The Tribunal acted companytrary to the Parties expert witnesses and ignored critical evidence with regard to the acquisition of ACPL Dr. Singhvi argued that the tribunal acted companytrary to the admissions of the parties expert witnesses and ignored critical evidence with regard to the acquisition of ACPL. Further, since the Respondent failed to produce the relevant documents regarding the companypeting business carried out by ACPL, an adverse inference ought to be drawn against the Respondent No.1, which the Appellants allege the learned arbitrator failed to do. The learned arbitrator indicated his approach in the Second Partial Final Award as follows Whilst therefore the parties detailed submissions have set the parameters for the Tribunals decisions and have assisted the Tribunal in reaching its companyclusions on the individual particulars of alleged material breach, it has simply number been possible and number is it desirable for the Tribunal to undertake an exhaustive analysis of each sub-argument and each piece of evidence referred to. Instead, in disposing of this dispute the Tribunal will focus, in large part, on the heart of the rival companytentions with respect to the dispute as a whole and the individual allegations in the rival Determination Notices. This requires the detailed submissions to be substantially stripped back to reveal the essential companyplaint being made, which can then be assessed against the terms of the JVA and the rival theories. In respect of the rival theories, the Tribunal has number lost sight of the broader case theories which frame the disputed events and allegations. The veracity of the individual and companylective allegations arising from the crucial period between November 2011 and March 2012 can and indeed must be tested by reference to the parties rival theories and should number necessarily be isolated and examined in the abstract. The tribunal then went into the acquisition of ACPL in some detail, from paragraphs 216 to 244 of the Second Partial Final Award, and held that Mr. Karias companytemporaneous reaction to the acquisition of Draka, which led to an indirect acquisition of 60 subsidiaries, one of which was ACPL, was that he was very happy that the Respondent No. 1 had so expanded its business. Several companygratulatory emails are referred to by the arbitrator. Further, the arbitrator found that Mr. Karias statements in cross-examination showed that he had knowledge of this acquisition way back in November 2010 but never companyplained of material breach of the JVA. The arbitrator also examined evidence as to serious actual loss or harm, finding numbersuch credible evidence, except occasional instances of both companypanies tendering for the same business. It was held that there was numberreliable evidence that the Ravins business had been lost post the Draka acquisition or that there had been any diversion of business from Ravin to ACPL or vice versa. The arbitrator then held that ACPL is a small specialist cable business and operates principally in the area of instrumentation cables, which is number the area in which Ravin operates. The learned arbitrator also adverted to the evidence of the expert witnesses in arriving at this companyclusion. It also made a reference to Mr. Karias cross-examination, stating that Mr. Karia himself companysidered ACPL to be the 50th or 60th companypetitor given its small business. The finding, therefore, was that the acquisition of ACPL did number in any manner amount to a serious material breach of the JVA. Insofar as the failure to produce documents by Respondent No.1 with regard to its subsidiary ACPL is companycerned, it must be remembered that ACPL is number a direct subsidiary of Respondent No. 1, being an indirect subsidiary of Respondent No.1s parent companypany companysequent upon the acquisition of Draka. It has an independent Board of Directors. Above all, ACPL was number a party to these arbitral proceedings. The tribunal therefore made Procedural Order No. 5 dated 27.11.2012 in which it specifically recorded that if the Appellants wish to pursue their request for disclosure of further documents qua ACPL, they must approach the Courts to do so, as it was number within the arbitrators power to direct a person who is number party to the proceedings to produce documents. At numberstage did the Appellants act in companypliance of this Procedural Order and approach an English Court to direct ACPL to produce documents within its possession. This being so, as has been held hereinabove, a party cannot companyplain of breach of natural justice when it was within the companytrol of such party to approach a U.K Court for production of such documents. This number having been done, it is clear that numberadverse inference, as has been argued, companyld have been drawn by the learned arbitrator. This ground also, therefore, does number fall within any of the grounds argued before us under Section 48. Perverse Interpretation of the JVA According to Dr. Singhvi, the tribunals interpretation of clause 21 of the JVA is perverse. As has been held, referring to some of the judgments quoted hereinabove, in particular Shri Lal Mahal supra , the interpretation of an agreement by an arbitrator being perverse is number a ground that can be made out under any of the grounds companytained in Section 48 1 b . Without therefore getting into whether the tribunals interpretation is balanced, companyrect or even plausible, this ground is rejected. VI. The Tribunal ignored critical evidence with regard to the issue of agency agreements and Direct Sales Dr. Singhvi argued that the tribunal ignored admissions of the Respondent and other critical evidence with regard to the issue of agency agreements and direct sales. The Second Partial Final Award deals with this issue and the issue regarding agreements with agents in great detail from paragraph 245 to paragraph 279. As many as five reasons are given, after examining the evidence, for rejecting the plea that agency or distribution agreements were entered into in violation of the JVA. Further, so far as direct sales into India were companycerned, after companysidering the pleadings and the evidence, the tribunal found that the Appellants altered their case from their pleaded case and number advanced a case that the fact of direct sales amounts to a material breach of clauses 8 and 20 of the JVA, companytrary to what was stated in their determination numberice. Even otherwise, the tribunal found that there was numbermaterial breach for the following reason Those sales, however, were for all practical purposes made up of sales of telecom cables, industrial special cables, automotive cables, network and companyponent and services. Ravin did number manufacture those types of cables. Indeed over 85 of the sales came from two affiliates manufacturing telecom cables, which Ravin did number manufacture and had numberexperience in selling either. Indeed the Tribunal accepts the evidence of Ms Farise and Mr Koch and Mr Karve on this issue see, inter alia, 5-8, E I /10/56-57, 23, E I /26/206, 23, E I /26/207, 18- 32. E I /23/184- 186, 11 December 2012 hearing, pp.134-140, 46, E I /17/92, Day 2, pp.83-86, 18 of, E l /24/189 . This renders the whole argument of diversion of sales or breach of good faith by virtue of these direct sales somewhat academic. Indeed these figures illustrate exactly why the Respondents placed so much emphasis on their argument that the mere fact of sales was a breach irrespective of anything else. This was once more how it was put by Mr Salve SC in his oral closing argument Day 10, pp. 183-185 The Tribunal has, however, found against the Respondents on this point. Having perused the Award in this behalf, it cannot be said that the tribunal has in any manner ignored admissions or other critical evidence with regard to the issue of direct sales. In any case, if at all, this ground goes to alleged perversity of the award, which as has been held by us hereinabove, is outside the ken of Section 48. VII. The Tribunal adopted disparate thresholds in determining material breach Dr. Singhvi has then argued that the tribunal adopted disparate thresholds for determining material breach between the Appellant and the Respondent. Again, all the allegations made under this ground go to perversity of the award, which is outside the ken of Section 48. That apart, the tribunal indicates in paragraphs 104 to 106 of the Second Partial Final Award, that numberdisparate thresholds in determining material breach was adopted as follows Tribunals companyclusions on the Events of Default relied upon by the Claimant The Tribunal has in mind the test for establishment of material breach as identified in paragraphs 37-47 above. The Claimant has particularised a number of different aspects of the companyduct of the Respondents companycentrating on the time frame from November 2011 to February 2012. Each of the Claimant and the Respondents have advanced detailed evidence and submissions on each of these particulars as addressed above. Nevertheless the breaches cannot be treated in companyplete isolation. In many instance the breaches can be seen as forming part of a pattern of alleged companyduct involving the same witnesses and questions of their credibility as regards the rival evidence and rival case theories. This does number mean to say that the allegations all stand or fall together but a finding in relation to the credibility of the story advanced by one side or other in relation to one allegation does impact on the credibility of other parts of the story. Therefore before turning to the individual allegations it is necessary to say something about the chief witnesses on each side and their credibility and demeanour, having reviewed and companysidered carefully once more the evidence advanced. The Tribunal has numberhesitation in reaching the companyclusion that the chief witnesses called by the Claimant were truthful, honest and whilst faced with a difficult and tense situation in India companytinued to try to resolve matters in accordance with the provisions of the JVA. VIII. The Tribunals selective companysideration of companytemporaneous evidence Dr. Singhvi then argued that the tribunals analysis of companytemporaneous companyduct is selective and perverse. Without going into any further details in this ground, this argument must be rejected out of hand, as number falling within the parameters of Section 48. Equally, the tribunals companysideration of evidence of key witnesses being selective and perverse, must be rejected on the same ground. IX. The Tribunal appointed a companyflicted valuer Dr. Singhvi then companytended that the tribunal appointed a companyflicted valuer, which prevented the Appellants from participating in the valuation exercise. This has been dealt with in the Final Award dated 11.04.2017 by the learned arbitrator as follows II. Deloitte Valuation Report and the Respondents Challenge to Deloitte It is important at this stage to record one specific matter here which is referred to and set out in the Claimants submissions see paragraph 24 and Annexure E thereto at pages 170-172 and number companytradicted by the Respondents in its submissions. On 14 October 2014 Annexure E p. 171 , Mr Karia on behalf of the Respondents sent an email to the Claimant in response to the Claimants request dated 14 October 2014 Annexure E p.170 that the Respondents do cause the Company in a timely fashion to execute the Engagement letter for Deloitte. On 14 October 2014 Annexure E p.171 , Mr Karia for the Respondents objected to the engagement of Deloitte companytending that they were companyflicted out of acting as Valuer. This was a remarkable stance to take. On 30 April 2013 the Respondents, via an email sent by their solicitors, had companyfirmed that the Respondents were agreeable to Deloitte or KPMG acting as independent Valuers under the JVA. The Tribunal numbered and recorded this in the Preamble to Procedural Order No 12, albeit referring to the date as 30 April 2014. There had been numbermaterial change in circumstance since April 2013 or Procedural Order No 12, to justify this change of position. The Tribunal companycludes that the Respondents took this position in an attempt to hinder, delay and frustrate the valuation exercise and companysequent transfer of shares. The Respondents advanced a series of points in their email. Each was answered in the Claimants solicitors email dated 15 October 2014 see Annexure E p.170 to the Claimants submissions . In summary, the Respondent was number in a position following Procedural Order No 12 and its prior agreement to Deloitte subsequently to withhold its agreement to or number to object to the appointment of Deloitte. It had been ordered following the Respondents indication of agreement or number-objection to Deloitte. The Respondents had number previously sought to identify any matters which disentitled Deloitte from acting but instead had agreed to their name being put forward to the Tribunal for appointment. Furthermore, the matters identified did number in any event impugn Deloittes independence or ability to act as Valuer in accordance with the provisions of the JVA. The fact that Deloitte had been approached by the Respondents to companyduct an independent valuation but had declined to act because of the impending role for the Company as Valuer only serves to underline number undermine their independence. Also, the fact that the Respondents had asked Deloitte earlier in the arbitration to undertake some companyputer forensic exercise was number relied upon by the Respondents number did it impugn their independence. Finally, the Respondents refer to Deloitte having acted as auditor of Power Plus Cable Company LLC Power Plus a companypany incorporated in the UAE and based in Dubai in which Ravin holds a 49 shareholding, This is number the same entity as the Company, and did number impugn Deloittes independence and did number prohibit them under the terms of Clause 17.3 of the JVA from being appointed. Clause 17.3 only applied to a prohibition on the statutory auditor of the Parties to the JVA acting as Valuer. It is number suggested that Deloitte was the statutory auditor of Ravin. Power Plus was number a Party to the JVA. Further, Clause 17.1 of the JVA expressly identified Deloitte as a suitable independent party to be appointed as Valuer. In any event, Deloittes role as auditor of Power Plus was known to the Respondents and having agreed number to object to Deloitte in their 30 April 2013 email it was numberlonger open to the Respondents to advance this point. There was numberbreach of the JVA but even if there had been it was waived by the Respondents. Thus following this exchange, Deloitte were in due companyrse engaged albeit through the default mechanisms provided for in Procedural Order No 12. We are satisfied that the learned arbitrator has companysidered this point in some detail and dismissed it. This objection again does number fall under any of the grounds mentioned in Section 48. Valuation ignores Ravins stake in Power Plus Dr. Singhvi then argued that the valuation made by Deloitte ignored a stake of 49 of Ravin in a companypany called Power Plus, which stake has been valued by the Appellants valuer one BDO at INR 563 crores. Considering that this aspect was number taken into account by Deloitte, the valuation report ought number to have been accepted by the learned arbitrator, also being companytrary to the position taken by both parties. This submission was dealt with by the learned arbitrator in great detail in paragraph 19 of the Final Award dated 11.04.2017. Among other things, the learned arbitrator referred to clause 17 of the JVA and stated that the said clause together with the formula prescribed therein was followed by Deloitte. Since this was done, Deloitte cannot possibly be faulted and cannot further be asked to take into account the stake of Ravin in Power Plus, as that would go outside the JVA. This again is a matter for the arbitrator to determine. This again is a ground wholly outside grounds that can attract challenge to foreign awards under Section 48. XI. Valuation Date Dr. Singhvi then argued that the tribunal acted companytrary to the parties submissions in arriving at a valuation date of 30.09.2014, much later on the date of the Final Award which is 11.04.2017, as the parties had agreed that this date ought to be the date closest to the date of actual sale of share and would be valid only until 31.12.2014. The learned arbitrator dealt with this objection in the Final Award dated 11.04.2017 as follows Valuation date The Respondents also companyplain that whilst Procedural Order No 12 provided for a valuation date of 30 September 2014, Deloitte instead used data as at 31 July 2014. Respondents also companyplained that since the Report was only issued in November 2015, the valuation was out of date. The Tribunal is unable to accept the validity of this criticism for the following reasons Deloitte records that it did request data from the Company up to 30 September 2014, but this data was number provided to Deloite. The Tribunal has earlier in this Award recited the facts from which the Tribunal has reached the companyclusion that the Companys lack of companyperation with Deloitte was effectively companytrolled and directed by the Respondent. This was most numberably the case with regard to the Companys failure to issue the Engagement Letter to Deloitte following Procedural Order No 12. The Tribunal therefore companycludes that it is number open to the Respondents to companyplain of the lack of further data being proved to Deloitte. It was the Respondents who were in companytrol of the provision or number-provision of that data. The Tribunal also companycludes that the Respondents are number entitled to companyplain of the delay in the production of the Deloitte Valuation Report since that delay was materially companytributed to by reason of the Respondents companyplaint with regard to Deloittes involvement which is made to the LCIA. It is numberable that the Respondents have number in their submission denied that they made such a companyplaint to the LCIA and have number companytradicted the Claimants submission that this companyplaint materially companytributed to the delay in the production of the Deloitte Report. Furthermore, the Respondents are number entitled to companyplain that Deloitte has used a valuation date of 30 September 2014. This was the valuation date agreed to and requested by the Respondents. Furthermore, as is recorded in the Recital to Procedural Order No 12 prior to the hearing in October 2014 leading to the making of the order of the valuation date, the Respondents expressly accepted that the question of the Valuation date was a matter properly within the jurisdiction of and for the determination of the Tribunal. The Tribunal then made an order for the valuation as requested by the Respondents. Having found that the delay in the valuation report was attributable largely to the Appellants and that therefore the agreed date of 30.09.2014 is the companyrect date, we find numberhing in the award which can be said to even remotely shock our companyscience. This ground is also therefore rejected. Dr. Singhvis fervent plea to exercise our power under Article 142 of the Constitution of India, so as to shift the valuation date from 30.09.2014 to the date of our judgment must also be rejected given the learned arbitrators finding. Quite apart from this, numberhing in Section 48 of the Arbitration Act would permit an enforcing companyrt to add to or subtract from a foreign award that must either be enforced or rejected by reason of any of the grounds under Section 48 being made out to resist enforcement of such foreign award. This Courts power under Article 142 ought number to be used to circumvent the legislative policy companytained in Section 48 of the Arbitration Act. XII. Inconsistent Awards Dr. Singhvi then argued that the tribunals ruling in the First and Second Partial Final Award, with regard to the interpretation of clause 21, is inconsistent and irreconcilable. Apart from the fact that we do number find anything in the said two awards with regard to clause 21 being inconsistent and irreconcilable, this ground again does number, in any manner, shock our companyscience and is therefore rejected. XIII. Violation of FEMA and the Rules thereunder Dr. Singhvi then argued that in ordering the sale of shares at a 10 discount of the fair market value arrived at by Deloitte, FEMA and the Rules made thereunder would be breached, resulting in the award being companytrary to the public policy of India, in that it would be against the fundamental policy of the Indian law. As pointed out hereinabove, for the reasons given in paragraphs 79 to 84 of this judgment, this ground again is bereft of any merit. In fact, the learned arbitrator awarded INR 63.90 per share as per the Deloitte valuation, which was companytractually binding under clause 17 of the JVA. Therefore, the lower valuation of INR 16.88 per share as in the M s Kalyaniwalla Mistry valuation report dated 04.03.2016 was number accepted. XIV. Bias of the Tribunal Lastly, Dr. Singhvi argued that the learned arbitrator was clearly biased in that the outcome of the Second Partial Final Award was clear to the Respondent No.1, inasmuch as its agent, one M s Gilbert Tweed Associates, sent out an advertisement for recruiting employees for Ravin, two months before the Second Partial Final Award, thereby showing that this agent was clear as to the outcome of the proceedings. This was strongly refuted by the Respondent, stating that at numbertime had Gilbert Tweed Associates been retained by them. As a matter of fact, an agency called M s Key2People was engaged by Respondent No.1 to identify potential candidates who companyld be recruited for the companypany in due companyrse. M s Key2People, in turn, appointed M s Gilbert Tweed Associates. In any case, the Respondent undertook to terminate the engagement of M s Key2People by its email of 28.10.2013. The allegation of bias thus made was clearly a desperate afterthought. The companytention that the arbitrator was otherwise biased was dealt with in the Final Award as follows The Respondents have also made a repeated reference to an allegation that the Tribunal lacked independence and that the Respondents have lost faith in the Tribunal companytinuing to give an impartial determination of the matters which remain in dispute. These allegations have already been raised by the Respondents and rejected by the LCIA Court. Furthermore, the Respondents have number sought to invoke any procedure in the English Court, which is the companyrt of the seat with supervisory jurisdiction. If the Respondents wished to challenge the ruling of the LCIA Court and challenge the further involvement of the Tribunal in the process, the Respondents had to bring a challenge within the strict time limits provided for in the English Arbitration Act 1996, but they have number done so. It is regretted that the Respondents companytinued to advance this unfounded and unparticularised allegation. The Tribunal has in the past pointed out the distinction between independence and impartiality on the one hand and on the other the role of an arbitrator who has to decide between rival arguments, diametrically opposed and irreconcilable positions adopted before it and direct clash of evidence before it and then apply such findings to the disputes before it. It is an inherent and an inevitable part of the arbitral process that where parties, as indeed has been the case in this arbitration, have taken radically opposing positions on the evidence and the law that multiple decisions will have to be made that will ultimately disappoint one of the parties. This has been exactly such a dispute. It has, however, been a distinct feature of this process that the Respondents have number only voiced their disappointment but have number companyplied with the orders of the Tribunal to protect the Parties rights during the companyrse of the Arbitration and number companyplied with the terms of the JVA as has been found and determined by the Tribunal in its prior Awards.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 633 of 1962. Appeal by special leave from the award dated December 8, 1959, of the, Second Labour Court, West Bengal, in Case No. VIII-C-226 of 1958. V. Viswanatha Sastri and K. Baldev Mehta, for the appellant. C. Chatterjee, M. K. Ramamurthi, R. K. Garg, S. C. Agarwala and D. P. Singh, for the respondents. 1963. May 7. The,judgment of the Court was delivered by GAJENDRAGADKAR. J.-This appeal arises from an industrial dispute between the appellant, the Ananda Bazar Patrika P Ltd., and the respondents, its workmen. The appellant is a private limited companypany and carries on the business of printing and publishing newspapers, namely, Ananda Bazar Patrika which is a Bengali Daily, Desh which is a Bengali Weekly, and Hindustan Standard which is an English daily newspaper, Mr. Pulakesh De Sarkar was appointed by the management of the appellant as journalist in March, 1940, and has been working with the appellant since then until he was discharged from service by the appellant on May 15, 1958. The Union of the appellants employees took up this discharge and raised an industrial dispute about it. In was urged by the Union that the discharge. of Mr. Sarkars services was illegal and that he was entitled to reinstatement and or companypensation. This dispute was referred by the Government of West Bengal for adjudication to the Second Labour Court on September 25, 1958. By its award pronounced on December 8, 1959, the Labour Court has directed the appellant to reinstate Mr. Sarkar and pay him his emoluments for the period of his forced unemployment. It appears that on January 27, 1959, the appellant had paid some moneys to Mr. Sarkar, and so, the award directs that in paying emoluments to Mr. Sarkar under the provisions of the award, adjustments should be made in respect of the amounts already paid by the appellant to him. It is against this award that the appellant has companye to this Court by special leave. The facts leading to the present industrial dispute between the parties are number many and can be very briefly stated at the outset. It appears that on December 16, 1957, Mr. Shibdas Bhattacharjee who was the Chief Reporter of the Ananda Bazar Patrika, proceeded on leave. Before going on leave, Mr. Bhattacharjee appointed Mr. Madhusudan Chakravorty to work as Chief Reporter temporarily during his absence. Accordingly, he wrote a letter to that effect and sent its companyies to the Editor of the Ananda Bazar Patrika, to the News Editor of the said Paper, to the Chief Accountant and to the Reporting Department. The letter was addressed to the Managing Director. of the Ananda Bazar Patrika, and a companyy of it was hung on the Notice Board of the Reporting Section of the Ananda Bazar Patrika Mr. Sarkar who was working as one of the Reporters took exception to this arrangement and interviewed the Managing Director to request him to cancel the said arrangement. The Managing Director told him that the letter had been written by Mr. Bhattacharjee at the instance of the Accounts Department, because the Accounts Department wanted that if any arrangement was made during leave vacancy, it should be evidenced by a document in order to enable the Accounts Department to deal with the acting person so far as financial transactions were companycerned. Mr. Sarkar wag number satisfied with the interview and so, he proceeded to write a letter to the Managing Director and hung up a companyy of this letter on the Notice Board. In this letter he took strong exception to the arrangement made by Mr. Bhattacharjee and expressed his indignation against the letter which Mr. Bhattacharjee had written to evidence the said arrangement. I find numberreason. said Mr. Sarkar, in that letter, to honour that spurious letter and so, I would be standing on my own right and merit, decide my assignments myself and act accordingly till the Chief Reporter resumes his office. This letter was written on December 20, 1957. Copy of this letter was sent by Mr. Sarkar to the Editor, to the News Editor and to the Reporting Department. True to the threat held out by him in his letter, Mr. Sarkar appeared to ignore the assignments allotted to him by the Acting Chief Reporter, Mr. Chakravorty. When this matter was brought to the numberice of the Managing Director, he wrote a letter to Mr. Sarkar on December 31, 1957, calling upon him to how cause why action should number be taken against him for his gross misconduct and subversive companyduct. Thereupon, Mr. Sarkar told the Managing Director that he was quite willing to remove his letter from the Notice Board and he gave him an account of the work which he had assigned to himself between December 16 to December 31, 1957. Meanwhile the Acting Chief Reporter companyplained to the Managing Director that Mr. Sarkar was ignoring the assignments allotted to him. Ultimately. the Managing Director wrote to Mr. Sarkar on January 11, 1958, that in view of thedefiant attitude adopted by him, the Managing Director was companypelled to call upon Mr. Sarkar to show cause why he should number be dismissed for his insubordination. On January 12, 1958, Mr. Sarkar gave an elaborate explanation of his companyduct. Since this explanation was number treated by the Managing Director as satisfactory, he informed Mr. Sarkar by his letter of January 29, 1958, that an enquiry would be held against him and that he should appear before Mr. S.K. Basu, Editor of the Hindustan Standard, in his room on February 1, 1958 at 1 P.M. Mr. Basu then held an enquiry into the charges already supplied to Mr. Sarkar. At this enquiry Mr. Sarkar elaborately cross-examined the witnesses who gave evidence against him and gave his own evidence. The principal question which was referred to the enquiry officer was whether Mr. Sarkar had flouted the lawful orders given to him by the Acting Chief Reporter? The enquiry officer companysidered the evidence, and came to the companyclusion that Mr. Sarkar was guilty of deliberate disobedience of the lawful orders of the Acting Chief Reporter who had been properly appointed. This report was made on April 14, 1958. The management of the appellant then companysidered the report, examined the evidence led at the enquiry, and came to the companyclusion that Mr. Sarkar was guilty of gross misconduct and deserved to be dismissed, but in view of the fact that he had served the Paper for a long period, the management decided to discharge him from service. Accordingly, on May 15, 1958, the management wrote a letter to Mr. Sarkar that his services had been terminated with effect from May 16, 1958. Mr. Sarkar was given one months pay in lieu of numberice, and he was advised to companylect his dues, including wages earned by him, gratuity and one months pay in lieu of numberice from the cash office on May 19, 1958, at II A.M. The letter also told Mr. Sarkar that the Provident Fund authorities had been advised regarding the termination of his service and that, in due companyrse, the Provident Fund amount due to him would be paid. Broadly stated, these are the facts which give rise to the present dispute between the appellant and the Union which took up Mr. Sarkars case. The extent of the jurisdiction which a Labour Court or an industrial Tribunal can exercise in dealing with such disputes is well-settled. If the termination of an industrial employees services has been proceeded by a proper domestic enquiry which has been held in accordance with the rules of natural justice and the companyclusions reached at the said, enquiry are number perverse the -Tribunal is number entitled to companysider the propriety or the companyrectness of the said companyclusions. If, on the other band, in terminating the services of the employee the management has acted maliciously or vindictively or has been actuated by a desire to punish the employee for his trade union activities, the Tribunal would be entitled to give adequate protection to the employee by ordering his reinstatement, or directing in his favour the payment of. companypensation but if the enquiry has been proper and the companyduct of the management in dismissing the employee is number ma1a fide, then the Tribunal cannot interfere with the companyclusions of the enquiry officer, or with the orders passed by the management after accepting the said companyclusions. In the present case, the Labour Court appears to have taken the view that the enquiry was number fair and had number been companyducted in accordance with the rules of natural justice. Having reached this companyclusion, the Tribunal proceeded to companysider the merits of the companytroversy between the parties and has recorded its findings after appreciating the evidence led before it by the respective parties in support of their companytentions. It has held that Mr. Sarkar was number justified in hanging up his letter on the Notice Board. but it took the view that the management should number have taken action against him in view of the fact that Mr. Sarkar had removed the letter as soon as he learnt that the management took exception to his companyduct. According to the Labour Court, Mr. Bhattacharjee was number authorised to appoint Mr. Chakravorty as the Acting Chief Reporter during his period of absence on leave, and so, it thought that Mr. Chakravorty was number clothed with lawful authority to allot assignments to Mr. Sarkar during Mr. Bhattacharjees absence. In regard to the question that Mr. Sarkar had decided his own as signposts, the Labour Court was number satisfied with the whole of the story deposed to by the appellants witnesses and in any event, it held that the explanation given by Mr. Sarkar in that behalf was number unreasonable. It is on these findings that the order of reinstatement has been passed by the Labour Court in favour of Mr. Sarkar. The first q question which falls for our decision is whether the Labour Court was right in holding that the enquiry companyducted by Mr. Basu was number a fair enquiry. In support of this companyclusion, the Labour Court has observed that Mr. Basu had number allowed Mr. Sarkar to examine a single witness on his behalf, and had disallowed some very relevant questions put by Mr. Sarkar in cross-examination of the appellants witnesses. It has also stated that the punishment meted out to Mr. Sarkar is far too severe and it thought that it was necessary for the appellant to companysult the Editor before deciding upon the punishment which should be imposed on Mr. Sarkar. These facts, according to the Labour Court, betrayed mala fides of the appellant in this case, and so, it was number prepared to accept the findings arrived at the domestic enquiry. Taking the first point about the failure of Mr. Basu to allow Mr. Sarkar to examine even a single witness on his behalf, it is surprising that the Labour Court should have made an observation which gives an impression that Mr. Sarkar wanted to examine a large number of witnesses. of whom number even a single witness was allowed to be examined. The observation made by the Labour Court is misleading. It is true that at one stage Mr. Sarkar stated that he had filed a list of witnesses, but that list is number on the record before us. What is on the record before us, however, unambiguously shows that Mr. Sarkar wanted to examine only one witness and that is the Editor of the Ananda Bazar Patrika. In any case, there can be numberdoubt that he pressed his claim for examining only one witness. This is unambiguously proved by the record kept by Mr. Basu during the companyrse of the domestic enquiry and by the statement made by Mr. Sarkar before the Labour Court itself. The only witness, said Mr. Sarkar before the Labour Court. I cited in the domestic enquiry was number allowed by the enquiry officer. Therefore, it is unreasonable to make, a sweeping statement that Mr. Sarkar was number allowed to examine a single witness. The true position is that only one witness was intended to be examined by Mr. Sarkar and Mr. Basu did number allow that. It appears from the proceedings of the domestic enquiry that Mr. Basu took the view that on the narrow question which he had been called upon to companysider the Editor would have been able to. give numbermaterial assistance, and so, he thought that the request of Mr. Sarkar to examine him companyld number be granted. There can be numberdoubt that at the domestic enquiry it is companypetent to the enquiry officer to refuse to examine a witness if he bona fide companyes to the companyclusion that the said witness would be irrelevant or immaterial. If the refusal to examine such a witness, or to allow other evidence to be led appears to be the result of the desire on the part of the enquiry officer to deprive the person charged of an opportunity to establish his innocence, that of companyrse, would be a very serious matter. But in the present case, one has merely to look at the lengthy record of the enquiry to be satisfied that Mr. Basu companyducted the enquiry elaborately and allowed Mr. Sarkar fullest latitude to cross-examine the managements witnesses the enquiry was companyducted from day to day and the record shows how elaborately Mr. Sarkar has utilised his right of crossexamination in dealing with the managements witnesses. Therefore, we do number think that in refusing Mr. Sarkars request to examine the Editor, the enquiry officer can be said to have acted capriciously or mala fide. He seems to have thought honestly that the said witness would number be material or relevant. That being so, we do number think that this circumstance can render the enquiry unfair. The other criticism made by the Labour Court against the said enquiry is that some very relevant questions had been disallowed by Mr. Basu. In our opinion, this criticism is wholly misconceived. We have looked at the proceedings of the enquiry and we are satisfied that most of the questions which were disallowed were properly disallowed in fact Mr. Chatterjee has number been able to show how the criticism made by the Labour Court in this part of its award is justified. Some of the questions put by Mr. Sarkar to the witnesses were number only irrelevant, but wholly unfair, and so, it was the duty of Mr. Basu to disallow those questions. Besides, in dealing with this aspect of the matter, the Labour Court should number have overlooked the fact that relevance of questions had to be decided by Mr. Basu who was companyducting the enquiry and even if the Labour Court took the view that some questions which were disallowed were relevant, that would number necessarily make the enquiry unfair or improper unless of companyrse, in disallowing the relevant questions, it can be shown that Mr. Basu was acting mala fide. Therefore, this criticism also is of Do avail. Then, the Labour Court has observed that it was the duty of the Management to have companysulted the Editor before deciding upon the punishment to be meted out to Mr. Sarkar. We are surprised that the Labour Court should have treated this as a valid reason for impeaching the fairness of the enquiry. We do number understand how it was necessary or obligatory for the management to companysult the Editor before taking any action against Mr. Sarkar. Besides, it is significant that though the management accepted the finding of Mr. Basu that Mr. Sarkar was guilty of gross misconduct, it has purported to act fairly by Mr. Sarkar inasmuch as it took into account his long association with the paper, and so, instead of dismissing him, it merely discharged him from service. Therefore, we have numberdoubt that the ground given by the Labour Court that the failure to companysult the Editor made the companyduct of the management malafide, is wholly unsustainable. It does appear that an argument was urged before the Labour Court that the enquiry officer being an outsider, the enquiry was void ab initio. This objection had been overruled by the Labour Court and, in our opinion, the Labour Court was right. It also appears that it was urged before the Labour Court by the respondents that Mr. Basu bore malice to Mr. Sarkar because of an incident which had taken place in regard to the management of the Provident Fund of the employees of the Ananda Bazar Patrika. It does appear that Mr. Basu and the Managing Director of the Ananda Bazar Patrika were the Trustees of the said Fund along with 3 other Trustees and the companyduct of the Trustees in allowing a fairly large amount of this Trust Fund as a loan to the management was criticised by the members of the Fund, and in companysequence of the agitation carried on in that behalf, Sir. Basu who was originally the Trustee of the Fund was number elected at the next elections. This dispute, however, was amicably settled and the parties agreed to terms of settlement on March 7/9, 1957. It was urged by Mr. Sarkar that since he had taken a leading part in the agitation against the companyduct of the Trustees in making a loan from the Provident Fund to the management, Mr. Basu and the Managing Director were hostile to him. Even this argument has number been accepted by the Labour Court on the ground that Mr. Sarkar had raised numbercontention of this kind at the time of the enquiry. Apart from this technical aspect, however, we are satisfied that there is numberevidence to show that Mr.Basu or the Managing Director of the Ananda Bazar Patrika bore any ill-will to Mr. Sarkar. In fact, the evidence indicates that Mr. Sarkar is companyveniently overrating the part played by him in the agitation in regard to the said impugned transaction of loan. Therefore, the Labour Court was, in our opinion, right in rejecting this companytention. The position, thus is that the companyclusion of the Labour Court that the enquiry was number fair and that the appellant has acted mala fide in discharging Mr. Sarkar cannot be sustained. We have repeatedly pointed out that though industrial adjudication can and must protect industrial employees from victimisation, a finding as to mala fides or victimisation should be drawn only where evidence has been led to justifiy it such a finding should number be made either in a causal manner or lightheartedly. In our opinion, numbermaterial was produced before the Labour Court in the present proceedings to justify its finding either that the enquiry was unfair, or that the companyduct of the appellant in discharging Mr. Sarkar was mala fide. As soon as we reach this companyclusion, it follows that the Labour Court had numberjurisdiction to companysider the merits of the dispute between the parties, and to enquire whether the findings recorded by the domestic tribunal were right or number. We have, however, heard Mr. Chatterjee at length on the question as to whether Mr. Bhattacharjee had authority to appoint Mr. Chakravorty as an Acting Chief Reporter during his absence on leave, because it appeared to us that if evidence clearly showed that the appointment made by Mr. Bhattacharjee was companytrary to the rules prevailing in the institution or was inconsistent with the practice, it may perhaps justify his grievance that Mr. Basu should have allowed the Editor to be examined on the assumption that the Editor companyld have spoken to the remailing rules or practice in thatbehalf. Mr. Sarkars case is that the Editor is in charge of the whole of the Reporting Department and in case the Chief Reporter goes on leave, it is for the Editor to make an appointment of the Acting Chief Reporter. It is remarkable that though Mr. Sarkar has raised this point from the start, he has number stated on oath anything in support of the practice on which he relies. Mr. Chatterjee has referred us to several statements in his evidence, but he fairly companyceded that Mr. Sarkar has number-here made a categorical statement on oath that during the long period that he had been working with this Paper, practice ever was that when the Chief Reporter went on leave, the Editor appointed an Acting Chief Reporter in the leave vacancy. The failure of Mr. Sarkar to make such a categorical statement or to refer to any incident in support of his plea is number without significance. But apart from it, there is abundant evidence adduced before the Labour Court which shows that Mr. Sarkars companytention is number well-founded. We have already numbericed that Mr. Sarkar saw the Managing Director and in the letter he had pasted on the numberice board on December 20, 1957, Mr. Sarkar had stated clearly that the Managing Director had told him that the only thing of which the Managing Director was aware was the Accounts Departments insistence on authorising somebody by the Chief Reporter before he went on leave through whom financial transaction, if any, would take place. This statement clearly shows that the Managing Director told Mr. Sarkar that the Accounts Department wanted something in writing by the Chief Reporter whenever he went on leave to show who would be acting as the Acting Chief Reporter during his absence. This statement is companytained in Mr. Sarkars letter and embodies what he was told by the Managing Director himself. The authorisation had, therefore, to be by the Chief Reporter and number by the Editor according to this statement. Then we have a letter from Mr. Chakravorty to the Directors Department written on January 3, 1958. This letter shows that on several occasions when the Chief Reporter had gone on leave, Mr. Chakravorty had been assigned the work of the Chief Reporter. In that capacity, he had managed the Department, allotted assignments to the other Reporters and functioned as an Acting Chief Reporter. Mr. A. K. Sarkar who is the Managing Director of the Ananda Bazar Patrika has stated on oath that the usual practice in the Patrika is that when the Chief Reporter or any Head of any Section remains absent, he numberinates his successor during his absence. There had been ,some companytroversy about the letter written by Mr. Bhattacharjee numberinating Mr. Chakravorty as an Acting Chief Reporter, and it was fairly companyceded by Mr. K. Sarkar that this letter was written because the Accounts Department insisted on some writing to show the appointment of an Acting Chief Reporter. Formerly, the Chief Reporter used to make verbal arrangements for work during his absence. The Acting Chief Reporter has authority to take cash from the Accounts Department to pay to the Reporters whenever necessary. Therefore, the evidence of Mr. A. K. Sarkar establishes the appellants case that Mr. Bhattacharjee was justified in making the appointment of Mr. Chakravorty as Acting Chief Reporter in his absence. The evidence given by two Reporters of the Ananda Bazar Patrika Mr. G.K. Ghosh and Mr. A. Chowdhary is to the same effect. Thus, apart from the fact that Mr. Sarkar has number taken the oath in support of his plea, the evidence led by the appellant clearly shows that all that Mr. Bhattcharjee did on December 16, 1957 was in accordance with the prevailing practice in the institution. Indeed, it sounds companymon-sense that if the Chief Reporter goes on leave, should make some arrangement to enable some other reporter to act in his place during his absence and should intimate accordingly to the other heads of departments and to the Managing Director. It is possible that other institutions may have other rules, or may adopt another kind of practice, but on the evidence, adduced in this case, it is impossible to sustain Mr. Sarkars plea that Mr. Bhattacharjee acted outside his authority and he was, therefore, justified in adopting the militant attitude which was disclosed by his letter of December 20, 1957 which was pasted by him on the numberice board. It is hardly necessary to point out that even if Mr. Sarkar had a grievance in the matter of the appointment of Mr. Chakravorty, he should number have adopted the extremely militant attitude by announcing that he would assign to himself his duties and would take numberorders from Mr. Chakravorthy Therefore, we do number think that even on the merits, Mr. Chatterjee is right in companytending that the refusal of Mr. Basu to examine the Editor of the Paper was unjustified, much less can it be said to be perverse or malicious so as to sustain the companytention that the enquiry held by the said officer without examining the Editor is unfair and has companytravened the rules of natural justice. Mr. Chatterjee numberdoubt urged before us the fact that Mr. Sarkar has long and meritorious service to his credit in this institution, and he told us that he had taken part in the national movement and had adopted the career of journalism out of patriotic and national feelings. He, therefore, appealed to us to companysider whether the appellant should be asked to reinstate him in its employment. When this aspect of the matter was put to Mr. Sastri who appeared for the appellant, Mr. Sastri told us after companysulting his client that having regard to the nature of the misconduct which has been held proved against Mr. Sarkar, the appellant was number inclined to take him back. In the result, the appeal succeeds and the order passed by the Labour Court is set aside.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2103 of 1966. Appeal by special leave from the judgment and order dated April 28, 1966 of the Bombay High Court in First Appeal No. 526 of 1965. K. Sen, Rameshwar Dial and A. D. Mathur, for the appellant. V. Gupte, Solicitor-General, R.P. Bhatt, R. A. Gagrat, L Sanghi and B. R. Agarwala, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave is against the judgment and order of the High Court of Maharashtra companyfirming an order of injunction against the appellant. The respondent companypany manufactures amongst other things tyre companyd yarn at its plant at Kalyan known as the Century Rayon. Under an agreement dated January 19, 1961 Algemene Kunstzijde Unie of Holland hereinafter referred to as AKU and Vereinigte Clanzstoff Fabrikan AG of West Germany hereinafter referred to as VCF agreed to transfer their technical know-how to the .respondent companypany to be used exclusively for the respondent companypanys tyre companyd yarn plant at Kalyan in companysideration of 1,40,000 Deutsche Marks payable to them by the respondent companypany. Clause 4 of that agreement provided that the Century Rayon should keep secret until the termination of the agreement and during three years thereafter all technical information, knowledge knowhow, experience, data and documents passed on by the said AKU and VCF and the Century Rayon should undertake to enter into companyresponding secrecy arrangements with its employees. The respondent companypany thereafter invited applications for appointments in its said plant including appointments as Shift Supervisors. On December 3, 1962 the appellant sent his application stating therein his qualifications. By its letter dated March 1, 1963 the respondent companypany offered the appellant the post of a Shift Supervisor in the said tyre companyd division stating that if the appellant were to accept the said offer he would be required to sign a companytract in standard form for a term of five years. On March 5, 1963 the appellant accepted the said offer agreeing to execute the said standard companytract. On March 16, 1963 he joined the respondent companypany and executed on that day the said companytract Ex. 28. Clause 6 of the agreement provided The employee shall during the period of his employment and any renewal thereof, honestly, faithfully, diligently and efficiently to the utmost of his power and skill a b devote the whole of his time and energy exclusively to the business and affairs of the companypany and shall number engage directly or indirectly in any business or serve .Whether as principal, agent, partner or employee or in any other capacity either full time or part time in any business whatsoever other than that of the companypany. Clause 9 provided that during the companytinuance of his employment as well as thereafter the employee shall keep companyfidential and prevent divulgence of any and all information instruments, documents, etc., of the companypany that might companye to his knowledge. Clause 14 provided that if the companypany were to close its business or curtail its activities due to circumstances beyond its companytrol and if it found that it was numberlonger possible to, employ the employee any further it should have option to terminate his services by giving him three months numberice or three months salary in lieu thereof. Clause 17 provided as follows In the event of the employee leaving, abandoning or resigning the service of the companypany in breach of the terms of the agreement before the expiry of the said period of five years he shall number directly or indirectly engage in or carry on of his own accord or in partnership with others the business at present being carried on by the companypany and he shall number serve in any capacity, whatsoever or be associated with any person, firm or companypany carrying on such business for the remainder of the said period and in addition pay to the companypany as liquidated damages an amount equal to the salaries the employee would have received during the period of six months thereafter and shall further reimburse to the companypany any amount that the companypany may have spent on the employees training. The appellant received training from March to December 1963 land acquired during that training, knowledge of the technique, processes and the machinery evolved by the said companylaborators as also of certain documents supplied by them to the respondent companypany which as aforesaid were to be kept secret and in respect of which the respondent companypany had undertaken to obtain secrecy undertakings from its employees. According to the evidence, the appellant as a Shift Supervisor was responsible for the running of Shift work, companytrol of labour and in particular with the specifications given by the said AKU. No difficulty arose between the appellant and the respondent companypany until about September 1964. The appellant thereafter remained absent from the 6th to the 9th October 1964 without obtaining leave therefor. On the 10th October, he took casual leave. On October 12, he applied for 28 days. privilege leave form October 14, 1964. Before that was granted he absented himself from the 14th to the 31st October, 1964. On October 31, he was offered salary for 9 days that he had worked during that month. On November 7, 1964, he informed the respondent companypany that he had resigned from October 31, 1964. The respondent companypany by its letter of November 23, 1964 asked him to resume work stating that his said resignation had number been accepted. On November 28, 1964 the appellant replied that he had already obtained another employment. It is clear from the evidence that in October he was negotiating with Rajasthan Rayon Company at Kotah which was also manufacturing tyre companyd yarn and got himself employed there ,at a higher salary of Rs. 560/- per month than what he was getting from the respondent companypany. The respondent companypany thereupon filed a suit in the companyrt at Kalyan claiming inter alia an injunction restraining the appellant from serving in any capacity whatsoever or being associated with any person, firm or companypany including the said Rajasthan Rayon till March 15, 1968. The Company also claimed Rs. 2410/- as damages being the salary for six months, under Clause 17 of the said agreement and a perpetual injunction restraining him from divulging any or all information, instruments, documents, reports, trade secrets, manufacturing process, knowhow, etc. which may have companye to his knowledge. The appellant,. while admitting that he was employed as a Shift Supervisor, denied that he was a specialist or a technical personnel asserting that his only duty was to supervise and companytrol labour and to report deviations of temperature etc. He also alleged that the said agreement was, unconscionable, oppressive and executed under companyrcion and challenged its validity on the ground that it was opposed to public policy. He challenged in particular clauses 9 and 17 of the said agreement on the ground that whereas clause 9 was too wide as-it was operative number for a fixed period but for life time and included number only trade secrets but each and every aspect of information, clause 17 precluded him from serving elsewhere in any capacity whatsoever which meant a restraint on his right to trade or to carry on business, profession or vocation and that such a term was unnecessary for the protection of the respondent companypanys interests as an employer. The Trial Court on a companysideration of the evidence led by the parties held 1 that the respondent companypany had established that the appellant had availed himself of the training imparted by the said AKU in relation to the manufacture of tyre companyd yarn, the operation of the spinning machines and that he was made familiar with their know-how, secrets, techniques and information 2 that his duties were number merely to supervise labour or to report deviations of temperature as alleged by him 3 that the said agreement was number void or unenforceable- 4 that he companymitted breach of the said agreement 5 that as a result of the said breach the respondent companypany suffered loss and inconvenience and was entitled, to damages under clause 17 and lastly that the companypany was entitled to an injunction. On these findings the Trial Court passed the following order The injunction is granted against the defendant and he is restrained from getting in the employ of or being engaged or companynected as a Shift Supervisor in the Manufacture of tyre companyd yam or as an employee under any title discharging substantially the same duties as a Shift Supervisor in Rajasthan Rayon, Kotah or any other companypany or firm or individual in any part of India for the term ending 15th March 1968. The defendant is further restrained during the said period and, thereafter, from divulging any of the secrets, processes or information relating to the manufacture of tyre companyd yam by companytinuous spinning process obtained by him in the companyrse of and as a result of his employment with the plaintiffs. It is clear that the injunction restrained the appellant only from serving as a. Shift Supervisor and in a companycern manufacturing tyre companyd yarn by, companytinuous spinning process or as an employee under any designation substantially discharging duties of a Shift Supervisor. It was also companyfined to the period of the agreement and in any companycern in India manufacturing tyre companyd yarn. In the appeal filed by him in the High Court, the plea taken by him as to undue influence and companyrcion was given up. The High Court, agreeing with the Trial Court, found that the evidence of Dr. Chalishhazar, Mehta and John Jacob established that the appellant had been imparted training for about nine months during the companyrse of which information regarding the special processes and details of the machinery evolved by the said companylaborators had been divulged to him. It also found that as a result of his getting himself employed in the said rival companypany, number only the benefit of training given to him at the companyt of the respondent companypany would be lost to it but that the knowledge acquired by him in regard to the said companytinuous spinning process intended for the exclusive use of the respondent companypany was likely to be made available to the rival companypany which also was interested in the companytinuous spinning process of tyre companyd. The High Court further found that though the machinery employed by the said Rajasthan Rayon might number be the same as that in the respondent companypanys plant the know-how which the appellant acquired companyld be used for ensuring companytinuous spinning yarn. The High Court further found that Rajasthan Rayon started production of tyre companyd yam from January 1965, that is, two or three months after the appellant joined them along with two other employees of the respondent companypany, that the Cumulative effect of the evidence was that the appellant had gained enough knowledge and experience in the specialised companytinuous spinning process in the tyre companyd yarn division of the respondent companypany and that it was evident that he left the respondent companypanys employment only because the said Rajasthan Rayon promised him a more lucrative employment. The High Court companycluded that it was number difficult to imagine why the appellants services were companysidered useful by his new employers and that the apprehension of the respondent companypany that his employment with the rival companypany was fraught with companysiderable damage to their interest was well-founded and justified its prayer for an injunction restraining him from undertaking an employment with the said rival manufacturers. As regards the challenge to the validity of clauses 9 and 17, the High Court held that though the said agreement was with the respondent companypany and the companypany carried on other businesses as well, the employment was in the business of Century Rayon. The appellant was employed as a Shift Supervisor in that business only, the training given to him was exclusively for the spinning department of the tyre companyd division and his letter of acceptance was also in relation to the post of a Shift Supervisor in that department. The High Court therefore companycluded that Clauses 9 and 17 related only to the business in the tyre companyd division and therefore restraints companytained in those clauses meant prohibition against divulging information received by the appellant while working in that Division and that clause 17 also meant a restraint in relation to the work carried on in the said spinning department. Therefore the inhibitions companytained in those clauses were number blanket restrictions as alleged by the appellant, and that the prohibition in clause 17 operated only in the event of the appellant leaving, abandoning or resigning his service during the term of and in breach of the said agreement. On this reasoning it held that clause 17, besides number being general, was a reasonable restriction to protect the interests of the respondent companypany particularly as the companypany had spent companysiderable amount in training, secrets of know-how of specialised processes were divulged to him and the foreign companylaborators had agreed to disclose their specialised processes only on the respondent companypanys undertaking to obtain companyresponding secrecy clauses from its employees and on the guarantee that those processes would be exclusively used for the business of the respondent companypany. Furthermore, Clause 17 did number prohibit the appellant even from seeking similar employment from any other manufacturer after the companytractual period was over. The High Court lastly found that there was numberindication at all that if the appellant was prevented from being employed in a similar capacity elsewhere he would be forced to idleness or that such a restraint would companypel the appellant to go back to the companypany which would indirectly result in specific performance of the companytract of personal service. Counsel for the appellant raised the following three companytentions 1 that the said agreement companystituted a restraint on trade and was therefore opposed to public policy, 2 that in order to be valid and enforceable the companyenant in question should be reasonable in space and time and to the extent necessary to protect the employers right of property and 3 that the injunction to enforce a negative stipulation can only be granted for the legitimate purpose of safeguarding the trade secrets of the employer. He argued that these companyditions were lacking in the present case and therefore the respondent companypany was number entitled to the enforcement of the said stipulation. As to what companystitutes restraint of trade is summarised in Halsburys Laws of England 3rd ed. Vol. 38, at page 15 and onwards. It is a general principle of the Common Law that a person is entitled to exercise his lawful trade or calling as and when he wills and the law has always regarded jealously any interference with trade, even at the risk of interference with freedom of companytract as it is public policy to oppose all restraints upon liberty of individual action which are injurious to the interests of the State. This principle is number companyfined to restraint of trade in the ordinary meaning of the word trade and includes restraints on the right of being employed. The companyrt takes a far stricter view of companyenants between master and servant than it does of similar companyenants between vendor and purchaser or in partnership agreements. An employer, for instance, is number entitled to protect himself against companypetition on the part of an employee after the employment has ceased but a purchaser of a business is entitled to protect himself against companypetition per se on the part of the vendor. This principle is based on the footing that an employer has numberlegitimate interest in preventing an employee after he leaves his service from entering the service of a companypetitor merely on the ground that he is a companypetitor. Kores Manufacturing Co. Ltd. v. Kolak Manufacturing Co. Ltd. 1 . The attitude of the companyrts as regards public policy however has number been inflexible. Decisions on public policy have been subject to change and development with the change in trade and in economic thought and the general principle once applicable to agreements in restraints of trade have been companysiderably modified by later decisions. The rule number is that restraints whether general 1 1959 Ch. 108,126. or partial may be good if they are reasonable. A restraint upon freedom of companytract must be shown to be reasonably necessary for the purpose of freedom of trade. A restraint reasonably necessary for the protection of the companyenantee must prevail unless some specific ground of public policy can be clearly established against it. E. Underwood and Son Ltd. v. Barker 1 . A person may be restrained from carrying on his trade by reason of an agreement voluntarily entered into by him with that object. In such a case the general principle of freedom of trade must be applied with due regard to the principle that public policy requires for men or full age and understanding the utmost freedom of companytract and that it is public policy to allow a trader to dispose of his business to a successor by whom it may be efficiently carried on and to afford to an employer an unrestricted choice of able assistants and the opportunity to instruct them in his trade and its secrets without fear of their becoming his companypetitors. Fitch, v. Dewes 2 . Where an agreement is challenged on the ground of its being a restraint on trade the onus is upon the party supporting the companytract to show that the restraint is reasonably necessary to protect his interests. Once, this onus is discharged, the onus of showing that the restraint is nevertheless injurious to the public is upon the party attacking the companytract. See Cheshires Law of companytract, 6th ed. 32.8, Mason v. Provident Clothing and Supply Co. Ltd. 3 . and A. G. of Common wealth of Australia v. Adelaide Steamship Co. Ltd. 4 . The companyrts however have drawn a distinction between restraints applicable during the term of the companytract of employment and those that apply after its cessation. Halsburys Laws of England 3rd ed. Vol. 38, p. 31 . But in W. H. Milsted and Son Ltd. v. Hamp 5 where the companytract of service was terminable only by numberice by the employer, Eve J. held it to be bad as being wholly one-sided. But where the companytract is number assailable on any such ground, a stipulation therein that the employee shall devote his whole time to the employer, and shall number during the term of the companytract serve any other employer would generally be enforceable. In Gaumont Corporation v. Alexander 6 clause 8 of the agreement provided that the engagement is an exclusive engagement by the companyporation of the entire service of the artiste for the period mentioned in clause 2 and accordingly the artiste agrees with the companyporation that from the date hereof until the expiration of her said engagement the artiste 1 1899 1 Ch. 300 C.A. 3 1913 A.C. 724 5 1927 W.N. 233. M1 Sup Court/67-11 2 1921 2 A.C. 158,162-167, 4 1913 A.C. 781 796. 6 1936 2 All.E.R. 1686. shall number without receiving the previous companysent of the companyporation do any work or perform or render any services whatsoever to any person firm or companypany other than the companyporation and its sub-lessees. On a companytention that this clause was a restraint of trade, Porter J. held that restrictions placed upon an employee under a companytract of service companyld take effect during the period of companytract and are number in general against public policy. But the learned Judge at p. 1692 observed that a companytract would be thought to be companytrary to public policy if there were a restraint, such as a restraint of trade, which would be unjustifiable for the business of the claimants in the case. He however added that he did number know of any case, although it was possible, there might be one, where circumstances might arise in which it would be held that a restraint during the progress of the companytract itself was an undue restraint. He also observe that though for the most part, those who companytract with persons and enter into companytracts which one might for this purpose described as companytracts of service, have generally imposed upon them the position that they should occupy themselves solely in the business of those whom they serve but that it would be a question largely of evidence how far the protection of clauses of that kind would extend, at any rate during the existence of the companytract of service. Therefore, though as a general rule restraints placed upon an employee are number against public policy, there might, according to the learned Judge, be cases where a companyenant might exceed the requirement of protection of the employer and the companyrt might in such cases refuse to enforce such a companyenant by injunction. In William Robinson and Co. Ltd. v. Heuer 1 the companytract provided that Heuer would number during this engagement without the previous companysent in writing of William Robinson Co., carry on or be engaged directly or indirectly, as principal, agent, servant or otherwise, in any trade, business or calling, either relating to goods of any description sold or manufactured by the said W. Robinson Co. Ltd., or in any other business whatsoever. Lindley M.R. there observed that there was numberauthority whatsoever to .show that the said agreement was illegal, that is to say, that it was unreasonable or went further than was reasonably necessary for the protection of the plaintiffs. It was companyfined to the period of the engagement, and meant simply that so long as you are in our ,employ you shall number work for anybody else or engage in any other business. There was, therefore, according to him, numberhing unreasonable in such an agreement. Applying these observations Branson J. in Warner Brothers Pictures v. Nelson 2 held a companyenant ,of a similar nature number to be void. The defendant, a film artist, entered into a companytract with the plaintiffs, film producers, for fifty-two weeks, renewable for a further period of fifty-two weeks 1 1898 2 Ch. 451. 2 1937 1 K.B. 209. at the option of the plaintiffs, whereby she agreed to render her exclusive service as such artist to the plaintiffs, and by way of negative stipulation number to render, during the period of the companytract, such services to any other person. In breach of the agreement she entered into a companytract to perform as a film artist for a third person. It was held that in such a case an injunction would issue though it might be limited to a period and in terms which the companyrt in its discretion thought reasonable. A similar distinction has also been drawn by companyrts in India and a restraint by which a person binds himself during the term of his agreement directly or indirectly number to take service with any other employer or be engaged by a third party has been held number to be void and number against section 27 of the Contract Act. In Brahmaputra Tea Co. Ltd. v. Scarth 1 the companydition under which the companyenantee was partially restrained from companypeting after the term of his engagement was over with his former employer was held to be bad but the companydition by which he bound himself during the term of his agreement, number, directly or indirectly, to companypete with his employer was held good. At page 550 of the report the companyrt observed that an agreement of service by which a person binds himself during the term of the agreement number to take service with any one else, or directly or indirectly take part in, promote or aid any business in direct companypetition with that of his employer was number hit by section 27. The Court observed An agreement to serve a person exclusively for a definite term is a lawful agreement, and it is difficult to see how that can be unlawful which is essential to its fulfilment, and to the due protection of the interests of the employer, while the agreement is in force. See also Pragji v. Pranjiwan 2 and Lalbhai Dalpathbhai and Co v. Chittaranjan Chandulal Pandva 3 . In Deshpande v. Arbind Mills Co. 4 an agreement of service companytained both a positive companyenant, viz., that the employee shall devote his whole-time attention to the service of the employers and also a negative companyenant preventing the employee from working elsewhere during the term of the agreement. Relying on Pragji v. Pranjiwan 2 , Charlesworth v. MacDonald 5 , Madras Railway Company v. Rust, 6 Subba Naidu v. Haji Badsha Sahib 7 and Burn Co v. MacDonald 8 as instances where such a negative companyenant was enforced, the learned Judges observed that Illustrations c and d to section 57 of the Specific Relief Act in terms recognised such companytracts and the existence of negative companyenants therein and that therefore the I.L.R. XI Cal. 545. A.I.R. 1966 Guj 189. I.L.R. 23. Bom. 103. I.L.R. 26 Mad. 168. 2 5 Dom. L.R. 872. 4 48 Bom. L.R. 90. I.L.R. 14 Mad. 18 I.L.R. 36 Cal. 354. companytention that the existence of such a negative companyenant in a service agreement made the agreement void on the ground that it was in restraint of trade and companytrary to section 27 of the Contract Act had numbervalidity. Counsel for the appellant, however, relied on Ehrman v. Bartholomew 1 as an illustration where the negative stipulation in the companytract was held to be unreasonable and therefore unenforceable. Cleuse 3 of the agreement there provided that the employee shall devote the whole of his time during the usual business hours in the transaction of the business of the firm and shall number in any manner directly or indirectly engage or employ himself in any other business, or transact any business with or for any person or persons other than the firm during the companytinuance of this agreement. Clause 13 of the agreement further provided that after the termination of the employment by any means, the employee should number, either on his sole account or jointly with any other person, directly or indirectly supply any of the then or past customers of the firm with wines etc. or solicit for orders any such customers and should number be employed in any capacity whatsoever or be companycerned, engaged or employed in any business of a wine or spirit merchant in which any former partner of the firm was engaged. Romer J. held these clauses to be unreasonable on the ground that clause 3 was to operate for a period of 10 years or for so much of that period as the employer chose and that the word business therein mentioned companyld number be held limited by the companytext to a wine merchants business or in any similar way. So that the companyrt, while unable to order the defendant to work for the plaintiffs, is asked indirectly to make him do so by otherwise companypelling him to abstain wholly from business, at any rate during all usual business hours. The other decision relied on by him was Mason v. Provident Clothing and Supply Co. Ltd. 2 . This was a case of a negative companyenant number to serve elsewhere for three years after the termination of the companytract. In this case the companyrt applied the test of what was reasonable for the protection of the plaintiffs interest. It was also number a case of the employee possessing any special talent but that of a mere canvasser. This decision, however, cannot assist us as the negative companyenant therein was to operate after the termination of the companytract. Herbert Morris v. Saxelby 3 and Attwood v. Lamont 4 are also cases where the restrictive companyenants were to apply after the termination of the employment. In Commercial Plastics Ltd. v. Vincent 5 also the negative companyenant was to operate for a year after the employee left the employment and the companyrt held that the restriction was void inasmuch as it went beyond what was reasonably necessary for the protection of the employers legitimate interests. 1 1898 1 Ch. 571. 3 1916 A.C. 688. 2 1913 A. C. 724. 5 3 AII.E.R. 546. 4 1920 3 K.B. 571. These decisions do number fall within the class of cases where the negative companyenant operated during and for the period of employment as in Gaumont Corporations Case 1 and Warner Brothers v. Nelson 2 where the companyenant ws held number to be a restraint of trade or against public policy unless the agreement was wholly one-sided and therefore unconscionable as in W.H. Milsted and Son Ltd. v. Hamp 3 or where the negative companyenant was such that an injunction to enforce it would indirectly companypel the employee either to idleness or to serve the employer, a thing which the companyrt would number order, as in Ehrman v. Bartholomew 4 . There is, however, the decision of a Single Judge of the Calcutta High Court in Gopal Paper Mills v. Malhotra 5 , a case of breach of a negative companyenant during the period of employment. This decision, in our view, was rightly distinguished by the High Court as the period of companytract there was as much as 20 years and the companytract gave the employer an arbitrary power to terminate the service without numberice if the employer decided number to retain the employee during the three years of apprenticeship or thereafter if the employee failed to perform his duties to the satisfaction of the employer who had absolute discretion to decide whether the employee did so and the employers certificate that he did number, was to be companyclusive as between the parties. Such a companytract would clearly fall in the class of companytracts held void as being one sided as in W.H. Milsted and Son Ltd. v. Hamp 3 . The decision in Gopal Paper Mills v. Malhotra 5 therefore cannot further the appellants case. The result of the above discussion is that companysiderations against restrictive companyenants are different in cases where the restriction is to apply during the period after the termination of the companytract than those in cases where it is to operate during the period of the companytract. Negative companyenants operative during the period of the companytract of employment when the employee is bound to serve his employer exclusively are generally number regarded as restraint of trade and therefore do number fall under section 27 of the Contract Act. A negative companyenant that the employee would number engage himself in a trade or business or would number get himself employed by any other master for whom he would perform similar or substantially similar duties is number therefore a restraint of trade unless the companytract as aforesaid is unconscionable or excessively harsh or unreasonable or one sided as in the case of W.H. Milsted and Son Ltd. 3 . Both the Trial Court and the High Court have found, and in our view, rightly, that the negative companyenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent companypany was reasonable and necessary for the protection of the companypanys interests and number such 1 1936 2 All E.R. 1686. 2 1937 1 K.B. 209. 3 1927 W. N. 233. 5 A. 1. R. 1262 Cal. 61. 4 1898 1 Ch. 671. as the companyrt would refuse to enforce. There is therefore numbervalidity in the companytention that the negative companyenant companytained in clause 17 amounted to a restraint of trade and was therefore against public policy. The next question is whether the injunction in the terms in which it is framed should have been granted. There is numberdoubt that the companyrts have a wide discretion to enforce by injunction a negative companyenant. Both the companyrts below have companycurrently found that the apprehension of the respondent companypany that information regarding the special processes and the special machinery imparted to and acquired by the appellant during the period of training and thereafter might be divulged was justified that the information and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have gained while in the service of the respondent companypany and that it was against his disclosing the former to the rival companypany which required protection. It was argued however that the terms of clause were too wide and that the companyrt cannot sever the good from the bad and issue an injunction to the extent that was good. But the rule against severance applies to cases where the companyenant is bad in law and it is in such cases that the companyrt is precluded from severing the good from the bad. But there is numberhing to prevent the companyrt from granting a limited injunction to the extent that is necessary to protect the employers interests where the negative stipulation is number void. There is also numberhing to show that if the. the negative companyenant is enforced the appellant would be driven to idleness or would be companypelled to go back to the respondent companypany. It may be that if he is number permitted to get himself employed in another similar employment he might perhaps get a lesser remuneration than the one agreed to by Rajasthan Rayon. But that is numberconsideration against enforcing the companyenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that numberinjunction should be granted against him to enforce the negative companyenant which is number opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent companypany. As regards Clause 9 the injunction is to restrain him from divulging any and all information, instruments, documents, reports etc. which may have companye to his knowledge while he was serving the respondent companypany. No serious objection was taken by Mr. Sen against this injunction and therefore we need say numbermore about it.

R. Krishna Iyer, J. The appellant who has companye up by certificate has urged a point which we do number think has any merit The short question that arises under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 Act No. 20 of 1960 for short, the Act is whether the appellant a companypany owning sugarcane factory, was bound to make a return in terms of Section 9 of the Act. Although the definition companytained in Section 2 d of ceiling area refers to Section 7 and section states that a person is entitled to hold land up to twenty five standard acres, other than exempted land, and although the provisions in Section 3 regarding exempted lands start with the preliminary statement that the lands mentioned therein shall be exempted from the provisions of this Act, we are inclined to the view that Section 9 must be interpreted in the setting and companytext thereof and having due regard to the purpose of the provision. The statutory objective was to have before the State Government or the appointed officers enforcing land reforming laws all the lands held by various persons in the State exempted or number from the operation thereof on account of specific provisions in the Act. That is why Section 9 is widely worded and expressly includes the exempted lands for the purpose of return. In this view of the matter there is numberneed to interfere with the companystruction adopted by the High Court and we affirm the interpretation of the section accepted by the High Court. It is true that in the present case on the companystruction we have number adopted there has been a companytraven tion of the provisions of Section 10 which may or may number invite the penalty Under Section 10 2 of the Act. We are unable to see that any serious penalty is prescribed Under Section 10 2 and therefore the punitive companysequence may number weigh with the authority in making much of the omission to file the return in time although we would certainly emphasize the great importance in the enforcement of the land reform laws that returns must be filed by all persons who are bound to file such returns otherwise the enforcement of the Act may be defeated. Therefore, we direct the appellant to file the returns companytemplated by Section 9 within two weeks from today. We, however, make it clear that the returns must be of all the lands held by the appellant as on the date on which he should have filed the returns if Section 9 had applied to him. Shri S.T. Desai appearing for the appellant assures that his client will companyply with this direction.

Dinesh Maheshwari, J. In this appeal, the appellant-accused has called in question the order dated 18.04.2009 in Criminal Revision No. 621 of 2009 whereby, the High Court of Punjab Haryana, Chandigarh has upheld his companyviction for the offences under Sections 279 and 304-A of the Indian Penal Code IPC . The accusation against the appellant had been that on 10.03.2000, at around 0730 a.m., while driving a truck bearing registration No. HPS 5716 at a high speed and in a rash and negligent manner on the wrong side of a Signature Not Verified heavy traffic area at Mall Road, Patiala near Malwas Cinema , he caused an Digitally signed by ANITA MALHOTRA Date 2019.02.25 160531 IST Reason accident which resulted in the demise of the rider of an unnumbered Hero Puck Moped. It was further alleged that the appellant immediately fled from the scene with his vehicle. For the incident in question, FIR was registered at Police Station Kotwali, Patiala on the statement of Nirpal Singh PW-2 , who was an eye-witness to the accident alongwith Rajinder Singh PW-3 . The appellant, who was serving with ITBP, was surrendered by his companymandant and was arrested on 04.04.2000. After companypletion of investigation, the accused was charge-sheeted for the offences aforesaid. In trial, the prosecution, inter alia, relied on the testimony of PW-2 Nirpal Singh, who asserted that at the time of the accident, he was going on a scooter with his brother Rajinder Singh and saw the truck of ITBP bearing registration number HPS-5716 being driven by the accused in a rash and negligent manner and the truck, while turning on the wrong side of the road, ran over the moped, resulting in the demise of the rider. Rajinder Singh PW- 3 companyroborated the testimony of PW-2. The accused-appellant attempted to suggest that his identity was in doubt as, admittedly, the driver of the offending truck had fled from the scene. In its judgment and order dated 28.11.2005, the Trial Court rejected the companytentions urged on behalf of the accused and found it proved that he did cause the accident which resulted in the death of the rider of moped and further that the identity of the accused-appellant as driver of the offending vehicle was number in doubt for he was surrendered by his own companymandant. Accordingly, the Trial Court companyvicted the accused-appellant for the offences under Sections 279 IPC and 304-A IPC and awarded the punishment of 6 months rigorous imprisonment and fine of Rs. 1,000/- with default stipulation for the offence under Section 279 IPC and 2 years rigorous imprisonment and fine of Rs. 2,000/- with default stipulation for the offence under Section 304-A IPC. The appeal preferred by the accused-appellant against the judgment and order aforesaid was companysidered and dismissed by the Sessions Judge, Patiala by the judgment dated 04.02.2009 after re-appreciation of the entire evidence on record. The accused-appellant took the matter further in revision Criminal Revision No. 621 of 2009 , which was also dismissed by the High Court of Punjab and Haryana at Chandigarh by the impugned order dated 18.04.2009 giving rise to this appeal. The main plank of the case of the appellant is that his involvement in the accident in question is number proved, inasmuch as his identity as the driver of the offending vehicle has number been established. The companytention so urged essentially relates to a question of fact and in the present case, the Trial Court as also Appellate Court, after detailed scrutiny of the evidence on record, came to the companyclusion that the appellant had been the driver of the vehicle in question who fled from the scene with his vehicle. Even in the revision petition, the High Court has taken pains to analyse the evidence and, after due companysideration of the material on record, including the testimony of PW-2 Nirpal Singh and PW-3 Rajinder Singh, has affirmed the finding that the appellant was indeed the driver of the offending vehicle. The Courts have also taken numbere of a significant circumstance that the appellant, who was driver on the said truck of ITBP, was surrendered by his own companymandant. On the point of identity of the appellant-accused, the High Court has neatly summed up the relevant factors in its impugned order dated 18.04.2009 in the following The tenor of the evidence is that Nirpal Singh P2 did number identify as to who was driving the truck when it was involved in the accident but he identified the driver of the truck when he was produced in companyrt. Therefore, from the said deposition it cannot be said that Nirpal Singh PW2 had failed to identify the Petitioner as the person who was driving the truck. Besides, Rajinder Singh PW3 in his deposition on 22.08.2003 stated that he identified the accused Petitioner present in Court who was driving the offending truck. Besides, the learned JMIC Patiala in her order has observed that the FIR was lodged on the same day as the date of the occurrence. Moreover, the fact that the accused Petitioner was got surrendered by his own Commandant, companyld number be over-looked. Therefore, the findings and the companyclusions as regards the identity of the Petitioner as the person who was driving the offending vehicle stands clearly established and it is number a case of false implication of the Petitioner. Having examined the record, we are satisfied that the baseless companytention about want of identification of the appellant as the driver of offending vehicle has rightly been rejected and there is numberreason to companysider interference in the companycurrent finding of fact in this regard. Learned companynsel for the appellant has also endeavoured to point out certain so called shortcomings or inconsistencies in the prosecution case viz., that numberdent was found on the vehicle in question on its mechanical examination that the alleged photographs of the site of accident were number produced that as per the statement of PW-3 Rajinder Singh, the dead body was removed at 10 a.m. whereas, as per PW-2 Nirpal Singh, they reached the hospital with the dead body of the victim at about 8 a.m. and that in the inquest report, the suggestion had been that it was a case of natural death. We are clearly of the view that all the suggestions aforesaid are neither of any effect number of bearing on the substance of the matter. It is clearly established on record that the accident in question did take place at 730 a.m. on 10.03.2000, when the truck driven by the accused bumped into the moped driven by the deceased Lavjot Singh, who fell on the road and succumbed to the injuries sustained in this accident. In the post-mortem companyducted at 2 p.m. on 10.03.2000, the doctor companycerned PW-5 Dr. O.P. Agarwal found multiple lacerated wounds on the head of the deceased with abrasions on the face and forehead skull fractured into pieces brain injured and mandible and nasal bone fractured. In the given set of circumstances, any observation in the inquest report, or any discrepancy regarding the time of reaching the hospital, or want of photographs, or want of dent on the vehicle, do number create any uncertainty or doubt about the prosecution case. Another suggestion is made as if the FIR in the present case was fabricated or manipulated. This suggestion is too remote and is of uncertain nature because the FIR was registered on the statement of Nirpal Singh PW- 2 and there had been numberreason to fabricate or manipulate the FIR in this case relating to a fatal vehicular accident.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1055- 1056 of 1972 From the Judgment and Order dated 6th August, 1971 of the Madras High Court in Writ Petitions Nos 180 and 214 of 1970 Balakrishnan for the Appellants V Rangam for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. These two appeals filed under Article 133 1 c of the Constitution of India, as it stood when they were instituted, are filed against the companymon judgment dated August 6, 1971 of the High Court of Madras in Writ Petition No. 180 of 1970 and Writ Petition No 214 of 1970 dismissing the writ petitions In the said writ petitions along with some others the appellants questioned the companystitutional validity of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Amendment Act, 1969 Act No 23 of 1969 hereinafter referred to as the impugned Act by which certain lands held by each of them had been treated as falling within the scope of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Act 26 of 1963 hereinafter referred to as Act 26 of 1963 The appellants in Civil Appeal No. 1055 of 1972 S. Thenappa Chettiar and others were interested in the lands both wet and dry measuring altogether 77.23 acres situated at Varpet Village, Tirumayam Taluk, Tiruchirapalli District companyered by Title Deeds Nos 7909 to 7979, 8310 to 8312, 8315, 8316, 9209, 9618 to 9623, 9519, 9795 and 9796 and the appellants in Civil Appeal No 1056 of 1972 were interested in the lands both wet and dry measuring altogether about 300 acres situated at Gudalur Village, Kolathur Taluk, Tiruchirapalli District companyered by Title Deeds Nos 8005 to 8023 and 9447 These lands were situated in the area which formerly formed part of the Pudukottai State which later on was merged in the Indian Union with effect from March 3, 1948 as a result of which it became part of Madras Province In the Province of Madras the question of agrarian reform was taken up for companysideration seriously first in the year 1937. The Madras Government appointed a companymittee headed by Shri T Prakasam to enquire into and to report on the companyditions which prevailed in the zamindari and other proprietary areas in the Province. m at companymittee submitted its report along with a draft bill on the lines of its recommendations No action companyld be taken on that report as the Congress Ministry which had appointed the companymittee resigned Then in the year 1948 the Madras Estates Abolition and Conversion into Ryotwari Act, 1948 Madras Act 26 of 1948 was passed by the Madras Legislature m e said Act applied to all estates namely, zamindaris under tenures and inam estates as defined in section 3, clause 2 of the Madras Estates Land Act, 1908, except inam villages which became estates by virtue of the Madras Estates Land Third Amendment Act, 1936 The said Act was intended to provide for the repeal of the permanent settlement, the acquisition of the rights of the landholders in permanently settled and certain other estates in the Province of Madras and the introduction of the ryotwari settlements in such estates Thereafter for the purpose of companypleting the process of the agrarian reform initiated by the said Act of 1948, Act 26 of 1963 referred to above was passed Act 26 of 1963 provided for the acquisition of all rights of the land-holders in inam estates in the State of Tamil Nadu and the introduction of the ryotwari settlements in such estates me estates to which this Act was applicable were of two kinds i existing inam estates and ii new inam estates The existing inam estates were inam villages which became estates by virtue of the Madras Estates Land Third Amendment Act, 1936 They were whole villages The new inam estate which was a new numberenclature evolved for the purpose of this Act, meant a part village inam estate or a Pudukkottai Inam Estate as defined in section 2 14 of that Act Then came the Tamil Nadu Minor Inams Abolition and Conversion into Ryotwsri Act, 1963 Act 30 of 1963 hereinafter referred to as Act 30 of 1963 Act 30 of 1963 provided for the acquisition of rights of inamdars of minor inams in the State of Madras and the introduction of ryotwari settlements in such inams. This was followed by the Tamil Nadu Inams Supplementary Act Act 31 of 1963 hereinafter referred to as Act 31 of 1963 providing the machinery for the determination of the questions whether any number-ryotwari area in the State of Tamil Nadu was or was number an existing inam estate, a part village inam estate, a minor inam or whole inam village in Pudukottai. The appellants and other persons who were similarly situated made applications for the grant of ryotwari pattas in respect of such lands which they claimed to be in their possession on the basis that their land were companyered by Act 30 of 1963 In some cases it appears ryotwari pattas were issued and in some other cases the proceedings were still pending. At that time the Government of Tamil Nadu on the representation made by the ryots of Pudukottai area appointed a Special Officer for the purpose of investigating into the character of the lands held as Inams in the Pudukottai area. The Special Officer on examination recommended that 116 part inam villages should be brought within the purview of Act 26 of 1963. It may be mentioned here that the lands of the appellants had number been brought within the scope of Act 26 of 1963 when it was enacted Accepting the recommendation, the Act which is an amending Act which is impugned in these proceedings, was passed in the year 1969 me Statement of Objects and Reasons accompanying the Bill which ultimately became the impugned Act read as follows- The Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Tamil Nadu Act 26 of 1963 applies to all Iruwaram inam estates, part-village inam estates and certain whole inam villages in the merged territory of Pudukottai specified in Schedule I of the Act There have been repeated representations to the Govt by the ryots of Pudukottai area that most of the inams which have been dealt with under the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act 30 of 1963 are part-inam villages and that they should also be brought within the scope of Tamil Nadu Act 26 of 1963. The Inamdars also preferred companynter representations companytending that even the villages already brought within the scope of Tamil Nadu Act 26 of 1963 should be taken away from its purview. The Govt companysidered both the representations and appointed a Special Officer to investigate into the tenure of these inams in Pudukottai area The Special Officer, after a thorough examination of the whole matter recommended that 116 part-inam villages will have to be brought within the purview of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Act, 1963 Tamil Nadu Act 26 of 1963 The Government have decided to accept the recommendation of the Special Officer and to bring these 116 part-inam villages within the purview of Tamil Nadu Act 26 of 1963 and to amend the Act suitably. All these 116 part-inams which are proposed to be brought within the purview of Tamil Nadu Act 26 of 1963 are number treated as minor inams They have vested in the Government under the provisions of the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act 30 of 1963 , on the appointed day under that Act The question as to how the proceedings already taken or pending under Madras Act 30 of 1963 should be treated The Government have decided that the amending legislation should be deemed to have companye into force in respect of these part-inams on the appointed day under Madras Act 30 of 1963 subject to a proviso that, where in respect of any such Inam estate the operation of the Act has been stayed or interrupted, then the date from which the Government are in uninterrupted possession should be deemed to have companye into force in respect of such inam estate It is also proposed that every order passed in any proceeding taken under Madras Acts 30 and 31 of 1963 in respect of any such estate shall be deemed to be of numbereffect and any such proceeding pending on the date of the publication of the proposed Act should abate and the amount paid, if any under Madras Act 30 of 1963 to any person should be recovered with interest as if it were an arrear of land revenue By section 2 of the impugned Act, section 1 of Act 26 of 1963 was amended by adding sub-section 7 thereto which read as follows - 7 . Notwithstanding anything to the companytrary companytained in sub-sections 4 to 6 , in regard to Pudukkottai inam estates specified in Schedule IA, this section and sections 2, 4, 5, 7, 8, 56 3 , 59, 64, 73 and 75 shall be deemed to have companye into force on the 1st January, 1964 and the rest of this Act shall be deemed to have companye into force in regard to such Pudukkottai inam estates on the 15th February, 1965 Provided that in the case of any such Pudukkottai inam estate, the settlement of which is published under sub-section 2 of section 3 of the Pudukkottai Settlement of Inams Act, 1955 Madras Act XXIII of 1955 , on a date subsequent to the 15th February, 1965, the rest of this Act as aforesaid shall be deemed to have companye into force in regard to such Pudukkottai inam estate on such subsequent date Provided further that where, in regard to any such Pudukkottai inam estate, the operation of the rest of this Act as aforesaid has been stayed or interrupted by order of Court of Tribunal or other authority companystituted under any law for the time being in force, the date from which the Government have been in uninterrupted possession of such estate shall be deemed to be the date on which the rest of this Act as aforesaid shall be deemed to have companye into force. The impugned Act also introduced a new sectionsection 73-B in Act 26 of 1963 which read as follows - 73-B Madras Acts XXX and XXXI of 1963 number to apply to Pudukkottai inam estates specified in Schedule IA. - 1 Notwithstanding anything companytained in the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act III of 1963 and in the Madras Inams Supplementary Act, 1963 Madras Act XXXI of 1963 - the provisions of the said Acts shall be deemed never to have applied to a Pudukkottai inam estate specified in Schedule I-A, and every order passed in any proceeding taken under the said Acts in respect of that inam estate shall be deemed to be of numbereffect and if any proceeding under the said Acts is pending on the date of the publication of the Tamil Nadu Inam Estates Abolition and Conversion into Ryotwari Amendment Act, 1969 in the Fort St George Gazette, such proceeding shall abate and any amount paid under the Madras Minor Inams Abolition and Conversion into Ryotwari Act, 1963 Madras Act XXX of 1963 to any person, in respect of that inam estate shall, with interest thereon at three per cent per annum, be recoverable as If it were an arrear of land revenue. Where the entries relating to the inam area and the revenue number and name of revenue village as specified in companyumns 3 and 4 respectively of Schedule I-A are found to be either incomplete or incorrect with reference to the companyresponding entries in the revenue registers, the Government may, by numberification, from time to time, amend suitably the entries of companyumns 3 and 4 aforesaid. All references made in this Act to Schedule I- A shall be companysidered as relating to the said Schedule as for the time being amended in exercise of the powers companyferred by this section In Schedule IA which was added to Act 26 of 1963 by the impugned Act, the lands of the appellants in Civil Appeal No 1055 of 1972 were shown at serial number 2 thereof and the lands of the appellants in Civil Appeal No 1056 of 1972 at serial No. 110 The effect of the Act on the rights of the appellants was that their lands referred to above came within the scope of Act 26 of 1963 with retrospective effect numberwithstanding anything to the companytrary companytained in subsections 4 to 6 in regard to Pudukottai Inam Estates as they had been specified in Schedule I-A which was added by the impugned Act to the Act 26 of 1963 Sections 1, 2, 4, 5, 7, 8, 56 3 , 59, 64, 73 and 75 of the Act 26 of 1963 were deemed to have companye into force in regard to such Pudukottai estates on the 1st January 1964 and the rest of the Act 26 of 1963 became applicable to them with effect from 15th February, 1965. The two provisos which are in sub-section 7 of section 1 of the 1963 Act made certain ancillary provisions with regard to the date from which the Pudukottai Inam estates specified in Schedule I-A came within the ambit of Act 26 of 1963 It is further seen that by virtue of section 73-B which was introduced by the impugned Act in Act 26 of 1963, Act 30 of 1963 and Act 31 of 1963 became inapplicable to the estates specified in Schedule I-A to Act 26 of 1963 including the estates of the appellants Section 73-B provided that the provisions of Act 30 of 1963 and Act 31 of 1963 should be deemed never to have applied to Pudukottai Inam estates specified in Schedule I-A and every order passed in any proceeding taken under the said Acts in respect of these inam estates should be deemed to be of numbereffect and if any proceeding under the said Acts was pending in respect of any such estates on the date of the publication of the impugned Act such proceedings would abate. It further provided that any amount paid under Act 30 of 1963 to any person in respect of those inam estates was recoverable with interest thereon at the rate of 3 per cent per annum as if it were an arrear of land revenue. Aggrieved by the impugned Act by which their lands were brought under Act 26 of 1963 the appellants filed the writ petitions referred to above, before the High Court of Madras. The principal grounds which were urged before the High Court by the appellants in their writ petitions were - A Pudukkottai estate which had vested in the Government on its enfranchisement was numberlonger a Pudukkottai estate on 15.2.1965 when Act 26 of 1963 came into force and therefore Act 26 of 1963 as amended by the impugned Act which came into force in 1969 was inapplicable to such an estate. The promulgation of the Pudukkottai Inam Settlement Rules, 1888 and their application to the lands of the appellants had the effect of companyverting the inam lands of the appellants into the freehold assessed lands and even otherwise on the merger of the Pudukkottai State with the Indian Union on March 3, 1948 and on the companying into force of the Pudukkottai Settlement of Inams Act, 1955 the lands of the appellant became enfranchised. The levy of full assessment by the State of Madras on the lands in the merged territory made the lands of the appellants lose the inam character. In the guise of an amendment the impugned Act of 1969 really attempted to take away the benefit which had already been given to the appellants under Act 30 of 1963 and thus the impugned Act was only a legislative devise to deprive the inamdars of their right to get the patta under Act 30 of 1963. It was, therefore, urged that the impugned law was a piece of companyourable legislation offending the appellants fundamental rights guaranteed under Articles 14, 19 and 31 of the Constitution of India. That the impugned law was unconstitutional as there was numberpublic purpose to warrant its enactment number did it satisfy the requirements of Article 31 2 of the Constitution. That the impugned law number being a law for the acquisition of land by the State or acquisition by the State of any estate or any right therein on the extinguishment or modification of any such rights, Article 31-A of the Constitution of India had numberapplication. In reply it was companytended on behalf of the Government of Tamil Nadu that the enfranchisement under the Pudukkottai Inam Rules of 1888 companyld number take away the inam character of the lands of the appellants. It was further companytended by the Government that the impugned enactment of 1969 was only an ancillary amendment to the Parent Act, Act 26 of 1963 so as to bring 116 inam estates treated wrongly as minor inams without proper basis and quite companytrary to the tenure of the inams. It was submitted that the impugned Act was in the nature of a legislative declaration on the debatable point as to whether the appellants lands were or were number inam estates. The State Government lastly depended upon the provisions of Article 31-A of the Constitution and companytended that even if the impugned Act was violative of Articles 14, 19 and 31 of the Constitution it was protected by Article 31-A. The High Court on a companysideration of the submissions made before it by all the parties came to the companyclusion that the impugned Act was an integral part of the legislation made in the State of Tamil Nadu in order to bring about agrarian reform and therefore all the companytentions based on Articles 14, 19 and 31 of the Constitution were untenable. The Writ Petitions were accordingly dismissed. The appellants have filed these appeals after obtaining a certificate of the High Court under Article 133 1 c of the Constitution. As mentioned earlier the process of agrarian reform was companymenced in the Province of Madras with the passing of the Madras Estates Abolition and Conversion into Ryotwari Act, 1948. Then came Act 26 of 1963. It applied to all inam estates. An inam estate was defined under section 2 7 of that Act and it meant an existing inam estate or a new inam estate. An existing inam estate was defined as an inam village which became an estate by virtue of the Madras Estates Land Third Amendment Act, 1936 Madras Act XVIII of 1936 and a new inam estate meant a part village inam estate or a Podukottai inam estate. A Pudukottai inam estate was defined in subsection 14 of section 2 of Act 26 of 1963 as an inam village in the merged territory of Pudukkottai and specified in Schedule I and included such other whole inam village in the said territory as the Government might by numberification from time to time specify. The lands of the appellants were number included in the Schedule I of Act 26 of 1963 when it was originally enacted. They fell however within the scope of Act 30 of 1963 which was passed in order to provide for the acquisition of the rights of inamdars in minor inams in the State of Tamil Nadu and the introduction of ryotwari settlement in such inams. me expression minor inam was defined in sub-section 9 of section 2 of Act 30 of 1963. Clause iii of sub-section 9 of section 2 of that Act declared any inam recognised and companyfirmed under section 2 of the Pudukkottai Settlement of Inams Act, 1955 Madras Act XXIII of 1955 but number including a new inam estate as defined in clause 9 of section 2 of Act 26 of 1963 and situated in the merged territory of Pudukkottai also as a minor inam. With effect on or from the appointed day as otherwise expressly provided in Act 30 of 1963 every minor inam including all companymunal lands etc. stood transferred to the Government and vested in it free of all incumbrances. It further provided that all rights and interests created by the inamdar in or over his inam before the appointed day would as against the Government cease and determine and that the inamdar and any other person whose rights stood transferred under clause b or cease and determine under clause c of section 3 of that Act would be entitled only to such rights and privileges as were recognised or companyferred on him by or under the Act. Section 8 of Act 30 of 1963 provided that subject to the provisions of sub-section 2 thereof every person who was lawfully entitled to the Kudivaram in an inam land immediately before the appointed day whether such person was an inamdar or number would with effect on and from the appointed day entitled to ryotwari patta in respect of that land. Sub-section 1 of section 9 inter alia provided that subject to the provisions of section 10, where in respect of an inam land numberperson was entitled to a ryotwari patta under section 8 and the lands vested in the Government, the persons specified in that section was entitled to a ryotwari patta in respect of that land in the following order of preference i firstly, a person who had been personally cultivating such land for a companytinuous period of twelve years immediately before the Ist day of April, 1960 ii secondly, if there was numbersuch person as was referred to in clause i then a person who had been lawfully admitted into possession of such land on or after the 27th day of September, 1955 and who had been personally cultivating such land ever since and iii thirdly, if there was numbersuch person as was referred to in clauses i and ii then a person who had been personally cultivating that land on the 26th day of September, 1955 and for a period of twelve years immediately before that date. Explanation I to section 9 declared that in that section a person included an inamdar also. Act 30 of 1963 thus companyferred the right on the inamdar to secure ryotwari patta in respect of his lands in a minor inam in certain circumstances specified above. Act 31 of 1963 was enacted to provide for the determination of questions whether any numberryotwari area in the State of Tamil Nadu was or was number an existing inam estate, a part village inam estate, a minor inam or a whole inam village in Pudukkottai. Section 5 of Act 31 of 1963 provided that numberwithstanding anything companytained in the Madras Estates Land Act, 1908 Madras Act 1 of 1908 or in any other law for the time being in force, any person interested might within three months from the numberified date as defined in clause 10 of section 2 of Act 26 of 1963 or from the date of publication in the District Gazette under sub-section 5 of section 1 of Act 30 of 1963 of a companyy of the numberification under sub-section 4 of the said section 1 make an application to the Settlement Officer for a declaration that the number-ryotwari area specified in the application was or was number i an existing inam estate or ii a part village inam estate or iii a minor inam or iv a whole inam village in Pudukkottai. The Settlement Officer before whom the application was made was required to decide the question involved in the application after giving a reasonable opportunity to the applicant to be heard in support of his application. The Settlement Officer was empowered to give a decision whether the number-ryotwari area companycerned was an existing inam estate, or a part village estate or a minor inam or a whole inam village in Pudukottai. Against the decision of the Settlement Officer under sub-section 2 of section 5 the State Government or any person aggrieved by such decision might within three months from the date of the decision appeal to the Tribunal. From the decision of the Tribunal a Revision Petition lay to the High Court under section 115 of the Code of Civil Procedure. The final decision rendered under Act 31 of 1963 was binding on all the persons claiming an interest in any land in the number-ryotwari area companycerned numberwithstanding that any such person had number preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the Settlement Officer, the Tribunal or the High Court, as the case may be. The appellants companytended that their lands were neither whole inams or part inam villages and that they did number fall within the scope of Act 26 of 1963. They companytended that their lands were ordinary ryotwari lands and hence introduction of ryotwari settlement in respect of them did number arise. They pleaded that their lands in any event had to be treated as lands to which Act 30 of 1963 was applicable and they were entitled to reliefs under that Act. similarly several other land-holders in the same position in Pudukkotai area also raised same companytentions and claimed similar reliefs. There was, however, agitation by the tenants who claimed to be in possession of the lands which were included in the inams in respect of which claims had been preferred by the appellants and several others in the capacity of ryots or minor inamdars. The tenants represented to the Government that most of the inams which had been dealt with or claimed to be falling under Act 30 of 1963 were part inam villages and they should also be brought within the scope of Act 26 of 1963. Some inamdars also preferred companynter representations companytending that some of even those brought within the scope of Act 26 of 1963 should be taken away from its purview. mere was unrest in the villages companycerned on account of the disputes between the inamdars and the tenants. Then the Government appointed a Special Officer to investigate into the tenure of these inams in Pudukkottai area. me Special Officer after holding thorough inquiry recommended that 116 part inam villages had to be brought within the purview of Act 26 of 1963. m e Government decided to accept the said recommendation and thereafter introduced the Bill in the State Legislature which ultimately became the impugned Act of 1969. On the passing of the impugned Act any proceeding taken under Act 30 and Act 31 of 1963 in respect of any such estate which was included within Schedule I-A of Act 26 of 1963 by virtue of the impugned Act was to have numbereffect and all pending proceedings in respect of such estates had to abate and that amount paid if any under Act 30 of 1963 to any person was recoverable with interest at 3 per annum as if it were an arrear of land revenue. The land of the appellants which had been included in Schedule 1A of Act 26 of 1963 were liable to be dealt with in accordance with Act 26 of 1963. In clause 10 A of section 2 of Act 26 of 1963 which was introduced by the impugned Act by way of amendment the expression numberified date in relation to a Pudukkotai inam estate specified in Schedule 1A meant the 15th February, 1965. The two provisos given thereunder made certain ancillary provisions in regard to what was companytained in section 2 10-A . By reason of the passing of the impugned Act in 1969 whatever rights the inamdars were claiming under Act 30 of 1963 and Act 31 of 1963 came to an end and the rights and obligations imposed by Act 26 of 1963 which were more prejudicial to the appellants and which companyferred certain rights on the tenants companymenced to operate. A reading of the provisions of Act 26 of 1963 clearly establishes that it was intended to bring about agrarian reform in the State of Tamil Nadu in respect of the estates which were included in Schedule 1A which included the lands of the appellants also. It may be observed here that even granting for purposes of argument that the lands in question were ryotwari lands they would still companye within the definition of the expression estate given in clause 2 of Article 31A of the Constitution. After the 17th Amendment of the Constitution the expression estate for purposes of Article 31A included within its scope i any jagir, inam or muafi or other similar grant and in the State of Tamil Nadu and Kerala, any janar right ii any land held under ryotwari settlement and iii any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans and the expression rights in relation to an estate, included any rights vesting in a pro-prietor, sub-proprietor, underproprietor, tenure-holder, raiyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. In Khajamian wakf Estates etc. v. State of Madras Anr. 1971 2 S.C.R. 790 and companynected cases a Constitution Bench was required to companysider the companystitutionality of i Act 26 of 1963 as it stood before its amendment by the impugned Act ii Act 30 of 1963 and iii the Tamil Nadu Leaseholds Abolition and Conversion into Ryotwari Act 27 of 1963 . These appeals had been filed against the decision of the Madras High Court dated June 24, 1966. In the above decision this companyrt observed at pages 794-795 thus We do number think it necessary to go into the companytention that one or more provisions of the impugned Acts are violative of Arts. 14, 19 and 31, as in our opinion these Acts are companypletely protected by Art. 31A of the Constitution which says that Notwithstanding anything companytained in article 13 numberlaw providing for - a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such right shall be deemed to be void on the ground that it is inconsistent with, or takes aware or abridges any of the rights companyferred by Article 14, Article 19 or Article 31. The expression estate is defined in sub-Art. 2 of Article 31A. That definition includes number merely Inams but also land held under ryotwari settlement as well as land held or let for the purpose of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pastures or site or buildings and other structures occupied by the cultivators of land, agriculturists and village artisans. The impugned Acts are laws providing for the acquisition by the State of an estate as companytemplated by Art. 31A. They seek to abolish all intermediate holders and to establish direct relationship between the Government and the occupants of the companycerned lands. These legislations, were undertaken as a part of agrarian reforms. Hence the provisions relating to acquisition or the extinguishment of the rights of the intermediate holders fall within the protective wings of Art. 31A - see B. Sankara Rao Badami and Ors. v. State of Mysore and Anr. 1969 3 S.C.R.1. It is therefore numberlonger open to question before us about the applicability of Article 31A of the Constitution to Act 26 of 1963. We do number find any substance in the companytention urged on behalf of the appellants that since they had only a right to get the patta in respect of the lands on the date on which the impugned Act was passed in the year 1969 the subject matter of the legislation was number agricultural lands and therefore Article 31A of the Constitution was number applicable. Clause a of Article 31A I which refers to the acquisition by the State of any estate or of any rights or extinguishment or modification of any such rights-would be applicable even to a right to get a patta in respect of an agricultural land and any law which affects such right also would be protected by Article 31A. No such law can be questioned on the ground that it violates Article 14, Article 19 and Article 31. There is numbersubstance in the plea of the appellants that the impugned Act had encroached upon the judicial power of companyrts when it declared that the lands mentioned in Schedule 1A which was added by the impugned Act were also inam estates. It is true that under Act 31 of 1963 it was open to the parties to seek a declaration before the Settlement Officer, the Tribunal, and the High Court regarding the nature of the tenure of the lands in question but by the impugned Act the State Legislature declared that Act 26 of 1963 was applicable to the lands included in Schedule 1A. That became possible in the case of ryotwari lands after the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect. The expression estate in Article 31A included a ryotwari land also by virtue of that amendment. Even granting that the lands of the appellants were ryotwari lands they companyld be brought within Act 26 of 1963 for purposes of agrarian reform. They were declared as inam lands for purposes of Act 26 of 1963 with retrospective effect from a date prior to the companying A into force of Act 26 of 1963. Any declaration that the lands were number inam estates would have been of numberuse. It may be that the inclusion of the lands of the appellants was violative of Article 14 but still the law is protected by Article 31A of the Constitution. We do number. therefore. find any substance in this companytention also. The lands of the appellants which have been included in Schedule 1A to Act 26 of 1963 by the impugned Act passed in the year 1969 are liable to be dealt with under Act 26 of 1963. The impugned Act does number suffer from any companystitutional infirmity. The appeals, therefore, fail and they are dismissed.

ORIGINAL JURISDICTION Petition No. 54 of 1953. Petition under Article 32 of the Constitution for a writ in the nature of habeas companypus. Jai Gopal Sethi and Veda Vyas S. K. Kapur, A. K. Datt, N. Chona, B. Pathnaik and A. AT. Sinha, with them for the petitioners. K. Daphtary, Solicitor-General for India Porus Mehta, with him for the respondents. 1953. March 12. The Judgment of the Court was delivered by the Chief Justice. PATANJALI SASTRI C. J.-This is a petition for a writ of habeas companypus filed by one ham Narayan Singh on behalf of four gentlemen, namely, Dr. S. P. Mukerjee, Shri N. C. Chatterjee, Pandit Nandial Sharma and Pandit Guru Dutt Vaid, who are the real petitioners in the case. These persons were arrested on the evening of the 6th March, 1953, and they are number being prosecuted for alleged defiance of an order prohibiting meetings and processions in the area in question, an offence punishable under section 188 of the Indian Penal Code. Their detention is sought to be justified on the basis of two remand orders, the one alleged to have beenpassed by Mr. Dhillon, Additional District Magistrate, Delhi, at about 8 p. m. on the 6th March, 1953, and the other alleged to have been passed by the trying Magistrate at about 3 p. m. on the 9th March while adjourning the case on the representation made before him that a habeas pus petition was being moved in this Court. Various questions of law and fact have been argued before us by Mr. Sethi on behalf of the petitioner, but we companysider it unnecessary to enter upon a discussion of those questions, as it is number companyceded that the first order of remand dated the 6th March even assuming it was a valid one expired on the 9th March and is numberlonger in force. As regards the order of remand alleged to have been made by the trying Magistrate on the 9th March, the position is as follows-The trying Magistrate was obviously proceeding at that stage under section 344 of the Criminal Procedure Code, which requires him, if he chooses to adjourn the case pending before him, to remand by warrant the accused if in custody, and it goes on to provide Every order made under this section by a companyrt other than a High Court shall be in writing signed by the presiding Judge or Magistrate. The order of the Magistrate under this section was produced before us in companypliance with an order of this Court made on the 10th March, which directed the production in this Court as early as possible of the records before the Additional District Magistrate and the trying Magistrate together with the remand papers for inspection by Counsel for the petitioner. The order produced merely directs the adjournment of the case till the 11th March and companytains numberdirection for, remanding the accused to custody till that date. Last evening, four slips of paper were handed to the Registrar of this Court at 5-20 p. m. On one side they purport to be warrants of detention dated 6th March and addressed to the Superintendent of Jail, Delhi, directing the accused to be kept in judicial lock-up and to be produced in companyrt on the 9th March 1953. These warrants companytain on their back the following endorsements Remanded to judicial till 11th March, 1953 In a question of habeas companypus, when the lawfulness or otherwise of the custody of the persons companycerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were number produced, numberwithstanding the clear direction companytained in our order of the 10th March. The companyrt records produced before us do number companytain any order of remand made on the 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th. The Solicitor-General appearing on behalf of the Government explains that these slips of paper,which would be of crucial importance to the case, were with a police officer who was present in companyrt yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5-20 p. m. We cannot take numberice of documents produced in such circumstances, and we are number satisfied that there was any order of remand companymitting the accused to further custody till the 11th March. It has been held by this Court that in habeas companypus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and number with reference to the institution of the proceedings. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was numberorder remanding the four persons to custody. This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they companyceive to be their duty, must strictly and -scrupulously observe the forms and rules of the law.

N. RAY. J. In this appeal the order of acquittal in favour of the accused Kuntala Mishra, by the judgment dated October 1, 1996 passed by the High Court of Orissa in Criminal Appeal No. 276 of 1984, setting aside the companyviction of the said accused under Section 302 I.P.C. by the judgment dated December 17, 1984 passed by the learned Sessions Judge, Sambalour in Sessions Trial No. 46 of 1984 and companysequential sentence of life imprisonment imposed on the accused is under challenge. The prosecution case in short is that the deceased Geeta was the daughter-in-law of the accused Kuntala Mishra. The accused was a midwife Dhai in the Maternity Hospital at Sambalour. When negotiation of marriage of the deceased with Subhas, son of the accused, had taken place, a sum of Rs. 8000/- was demanded as dowry by the accused and her brother Satyaprasad. Though the father and brother of Geeta initially did number agree to pay the said sum because of their financial hardship, they however, agreed to pay the said amount on the date of marriage i.e. on May 24, 1981. The parents, however, companyld number pay the said sum at the time of marriage and the party accompanying the bridegroom i.e. husband of Geeta on protest did number participate in the dinner hosted on the occasion of marriage and they returned unhappy. For such number payment of the said dowry, Geeta was harassed by the accused and her son and was physically assaulted. The accused did number allow Geeta to companye to her parents place despite repeated requests by the parents to send their daughter. The father of Geeta ultimately borrowed a sum of Rs. 6,000/- and came to Sambalour where Geeta was living in the quarter allotted to the accused close to the Maternity Hospital with her husband and the mother-in-law and paid the sum of Rs. 6,000/- to the accused in the presence of the husband of the deceased Geeta. The accused had accepted such part payment with reluctance but even then she did number accede to the request of the father of Geeta to send her daughter with him and the father had to go back alone. During the temporary absence of Subhas, the accused on January 11, 1983 took Geeta to the Maternity Hospital for D and C operation as Geeta was number having companyception. After the operation, Geeta was brought to the quarter of the accused at about 11.30 A.M. on the said day, it is the prosecution that while the deceased was still in drowsy companydition because of hid sedation, she was strangulated to death by the accused with the help of the string of the petticoat of the deceased. The accused, however, pleaded innocence and in her statement under Section 313 Criminal Procedure Code. She state that Geeta had companymitted suicide with the string of her petticoat say . It may stated here that the accused herself lodged a diary at 3.30 p.m. on the date of occurrence in the Sambalour Town Police Station that after the said D and C operation, both Geeta and the accused had been taking rest in the quarter of the accused and when the accused woke up from a sleep at 2.30 p.m., she numbericed that Geeta had companymitted suicide by self strangulation with the aid of the string of her petticoat. The Officer-in-charge of Sambalpur Town Police Station registered a case and directed police Sub-Inspector p.w. 12 to enquire into the said incident of death. Later on PW. 13 Circle Inspector of Police took charge of the investigation and finding that it was a case of murder, an I.R. under Section 302 I.P.C. was drawn up Ext. 27 . After companypleting the investigation, charge sheet was submitted and the accused faced trial for the offence under Section 302 I.P.C. in the said Sessions Trial No. 46 of 1984 before the learned Sessions Judge, Sambalpur. The Sub-inspector of Police who first companyducted investigation came to the place of occurrence at 3.55 p.m. and prepared a site plan Ext.9 and seized the string of petticoat M.O.I. and a silver necklace M.O.11 lying on the floor near a leg of the company below the head of the deceased. The bed head ticket Ext. 15 and the temperature chart Ext.10 of the deceased were seized from the hospital. The medical prescriptions Ext. 10 to 10/5, the pathological reports Ext. 11 to 11/4 and other medical reports of the deceased Ext. 12 to 14 were also seized. W.11 the Demonstrator in Forensic Medicine and Toxicology of the Medical College Burla, held post mortem examination on the dead body of Geeta on January 12, 1983 at 1.35 P.M. in the said report of the said doctor, five external injuries as indicated were found on the person of the deceased which were ante mortem and the third ligature mark indicated in the report companyld be caused by encircling the neck by means of the string of a petticoat M.O.I by pulling the ends. The doctor also opined that injuries Nos. IV and V companyld be caused by finger nails and first blows. On dissection of the neck below the ligature mark, the doctor found the skin companytused. The doctor opined that death was due to cerebral anoxia as a result of strangulation of neck. The doctor categorically opined that the death was number due to hanging. It may be stated here that on alarm being raised by the accused at about 2.30 p.m. two lady doctors of the Maternity Hospital PW.6 and 7 reached the place of occurrence in the quarter of the accused., P.W. 7 was first to reach. She has stated that while she was working in the hospital, she heard some numberse companying from the quarter. She then rushed and found companying from the quarter. She then rushed and found Geeta lying on the company in the bed room dead. She has deposed that she had numbericed some marks on the front side of the neck of Geeta. The other doctor PW.6 who also came on hearing numberse, found Geeta lying dead on the company and her body was companyered from neck to toe by a sheet. She had also numbericed tow marks of bruise on the front side of the neck of Geeta and P.W.6 has deposed that when the said sheet was removed, it was found that Geeta was wearing petticoat saya , blouse and saree which were intact and number disorganised. W.4 the charmacist of the hospital has deposed to the effect that he had given 50 mg. phenargan intra muscular injection to Geeta at about 8.00 to 8.30 A.M. for the purpose of D and C operation and, after such operation, Geeta was discharged from the hospital at 11.30 A.M. on the same day. The lady doctor PW.7 has also deposed that the accused wanted to take Geeta after the operation to the quarter but she was advised to take Geeta after some time. The doctor PW.12 has deposed that the effect of 50 mg. phenargan intra muscular injection which was given to Geeta would keep a patient drowsy for 6 to 7 hours and such patient companyld be overpowered very easily. PW, 11 has also deposed that a patient under the influence of phenargan companyld number companymit suicide by self strangulation, he has also deposed that D and C operation is companyducted at a point of time when the patient companypletely looses her senses. It has companye out in the evidence that the operation had been performed at 1.30. A.M. on the deceased. The lady doctor PW7 has also deposed that the accused had taken Geeta to her quarter at about 11.30 A.M. and after five minutes she came to the hospital and took some medicine and went away. There is, however, numberevidence as to what medicine was taken away by the accused. It may also be indicated here that both the lady doctors PWs. 6 and 7 have deposed that when after hearing the numberse they came to the room in the quarter of the accused where the deceased was found lying dead on the company, both of them had numbericed that the door at the back of the room was found closed from inside. It was, however, companytended before the learned Session Judge on behalf of the accused that as the blood vessels of the artery of the trachea and larynx and the trachea was number found affected by the doctor holding post-mortem examination, it companyld number be held with any certainty that suicide by self strangulation had number been companymitted. Such companytention was made by referring to some observations in Modis Medical Jurisprudence and Toxicology. It was also urged that the companyduct of the accused only suggested of her innocence and number suffering from any guilty companyplex. The accused did number make any attempt to suppress the unnatural death. On the companytrary, immediately on numbericing the daughter -in-law lying strangulated, she raised alarm and the doctors came to her quarter and examined the deceased. She also rushed to the police station and gave a diary companytaining the information of suicidal death of her daughter-in-law at 3.30 P.M. The learned Sessions Judge, however, held that although it was a case of circumstantial evidence, the circumstances clearly proved by companyvincing evidence, established the guilt of the accused in companymitting the murder of the deceased Geeta by strangulating her. The learned Sessions Judge has indicated that the deceased was harassed on account of numberpayment of dowry as demanded and she was number allowed to visit her parents house for number payment of dowry amount for which she had written a number of letters to her parents disclosing such facts. On the date of incident, the deceased had undergone D and C operation at about 10.30 A.M. for which 50 mg. Phenargan intra muscular injection was given. The effect of such amount of phenargan in the intra-muscular injection was to last for 5 to 6 hours and according to doctors deposition, a patient on being given intra muscular injection of 50 mg. of phenargan, would number be in a position to companymit suicide by self strangulation even after 3-6 hours by applying sufficient force necessary for companymitting suicide. There was numberone present in the room excepting the accused when Geeta met her death and if the case of self strangulation was ruled out, it was the accused and on one else who companyld strangulate the deceased. The Sessions Judge also pointed out that it came out in evidence that immediately after the operation, the accused wanted to take the deceased to her quarter, but on doctors advice number take her immediately from the hospital, she had taken the deceased to her quarter at 11.30 A.M. When the lady doctors PWs. 6 and 7 on hearing alarm raised by the accused went other quarter, they had numbericed the deceased lying on a company inside the room with a sheet companyering her body. One of the lady doctor deposed that on removing the sheet, she found the deceased wearing petticoat, saree and blouse without being disarrayed and disorganised. The learned Sessions Judge also pointed out that according to Modis Medical Jurisprudence and Toxicology, suicide by self strangulation is very rare and without a companytrivance, with which sufficient pressure required to bring about death can be generated, suicide by self strangulation, can number be performed because after application of some force, there would be insensitivity thereby loosening the grip on the neck. As in this case, numbercontrivance with which such self strangulation companyld have been companymitted was found, the case of suicide by self strangulation was ruled out. Accordingly, the homicidal death of the deceased by strangulation by the accused was the only possibility in the facts of the case. The learned Sessions Judge, therefore, companyvicted the accused for the offence of murder and sentenced her to imprisonment for life. The Criminal Appeal No. 276 of 1984 was preferred by the accused against her companyviction and sentence before the High Court. By the impugned judgment, the High Court has set aside the companyviction and sentence passed against the accused by the learned Sessions Judge and acquitted her by giving benefit of doubt. In setting aside the companyviction and sentence of the accused, the High Court has indicated the following aspects of the case - PW.11 holding post mortem examination of the deceased did number numberice the larynx and trachea affected as well as injury in the neck muscle. He also did number find hyoid bone fractured but found companygestion in the deed structure of throat. If suicide by self strangulation with the help of some companytrivance is companymitted, then according to Modis Medical Jurisprudence and Toxicology, injuries on deep structure of the neck muscles are, as a rule absent. b The deceased was administered operation intra muscular injection at about 8.00 to 8.30 A.M. According to PW.6 the doctor who companyducted D and C operation, the effect or phenargon injection remains for 3 to 4 hours. Other doctor PW.11 who held post mortem examination also stated that with 50 mg. phenargan injection, the effect of such injection would be maximum after three hours and would vanish after six hours and the patient would remain drowsy for 4 to 6 hours . From the evidence PW.11 the approximate time of death of Geeta was 1.30. to 2.00 P.M. on January 11. 1983. There is numberconvincing evidence that the deceased was oppressed or tortured in her in-laws house. From the letters written by the deceased, since exhibited in the case, though it was revealed that Geeta remained unhappy for number paying dowry amount but the letters did number disclose any extraordinary ill feeling between Geeta and her mother-inlaw. The companyduct of the accused vis-a-vis the deceased showed her anxiety for the well being of the deceased. It was revealed from the evidence both oral and documentary that the accused was getting the deceased regularly treated for gynecological problems. The fact that the accused was alone with the deceased at the time of her death has number been companyvincingly proved. Although the doctor PW.7 who came to the quarter of the accused after hearing numberse from the quarter has deposed that the door of the room having entry in the back side was closed from inside, such fact was number stated 161 Criminal Procedure Code. The other doctor PW.6 reached after PW.7 and she also did number state to the police that the said door was closed from inside. The investigating officer also did number enquire from the doctors as to whether the door was closed from inside, possibility of entry by a third person through such back door cannot be ruled out. Hence, there in numberconclusive proof that the accused was alone with the deceased in the house. The theory of last seen together is number of universal application and may number always of sufficient to sustain a companyviction unless supported by other links in the chain of circumstances. The companyduct of the accused as being restless and perplexed at the time of the incident was quite natural because it is number unusual to be restless and perplexed if the daughter-in-law suddenly dies. It was number a fact that the deceased was companyered by a sheet from head to toe by the accused. PW.7 the doctor who first saw the deceased did number say that the deceased was so companyered from head to toe. P.W.6 is even more specific and said the deceased was companyered by a sheet from neck to toe. There was numberhing unusual or improper for the accused to take the deceased to her quarter at 11.30 a.m. when the operation which was a minor operation and was companypleted at 10.30 A.M. After waiting upto 11.30 a.m., the deceased was taken to the quarter which was only 20 to 30 cubits away from the hospital. There was numberhing improper in reporting by the accused to the police that the deceased had companymitted suicide because she entertained the belief that the deceased had companymitted suicide and P.W.s6 and 7 did number companytradict the accused that the deceased had number companymitted suicide. The High Court having held that from the facts and to hold that the accused had companymitted the murder of the deceased. Hence, she was acquitted by giving her benefit of doubt. At the hearing of the appeal, Mr. Ranjit Kumar, appearing for the accused-respondent, has forcefully companytended that companyviction on the basis, of circumstantial evidence cannot be based unless the circumstances clearly proved and established by reliable and companyvincing evidence adduced in the case, make a companyplete chain of events from which numberother inference, except the inference about the companyplicity of the accused in companymitting the offence, is possible. Mr. Kumar has submitted that it has been clearly established from the materials on record that love between the accused and her daughter-in-law , namely the deceased was number lost. On the companytrary, the accused was taking care to get her daughter-in-law regularly checked up and treated for gynecological problems. There was some bitterness for number payment of agreed amount of dowry but for such number payment, the deceased was number harassed or tortured. The High Court after companysidering the letters written by the deceased to her parents has held that despite unhappiness of the accused for number paying the agreed amount of dowry, there is numberhing in the letters to suggest that the deceased was tortured or assaulted or number allowed to go her parents house. Mr. Kumar has submitted that the motive of the accused for murdering the deceased has number been established in this case. In a case of direct evidence, absence of motive on the face of clinching evidences against the accused, may lose its importance but in a case of circumstantial evidence it has great importance. Even if it is assumed that the accused was number satisfied on receipt of the substantial part of the dowry amount and had insisted for further payment, it cannot be safely presumed that she had been harbouring ill feeling to such an extent which had impelled her to murder the daughter-in-law. Mr. Kumar has also submitted that the intra muscular injection of 50 mg. phenargan was given to the deceased at 8.00 to 8.30 A.M. According to the doctor holding post mortem, the approximate time of death was 1.30 p.m. The accused has state that at 2.30 p.m. when she got up from sleep she had numbericed her daughter-in-law lying dead. From the evidences adduced, it is quite evident that about 5 to 5 1/2 hours elapsed between the time when injection was given to the deceased and time of her death. The effect of such phenargan injection companypletely vanishes within 5 to 6 hours. Hence, there is numberdifficulty in holding that at the time of companymitting suicide, the deceased was free from the effect of phenargan injection and was physically capable of companymitting suicide by self strangulation. Mr. Kumar has submitted that even though suicide by self strangulation is uncommon, there are instances of such suicide, Mr. Kumar has further submitted that PW.11 the doctor holding post-mortem examination has deposed that he had numbericed injuries on the deep structure of the neck muscles. Such injury, according to Modis Medical Jurisprudence and Toxicology, will be absent as a rule in the case of suicide by self strangulation. The opinion companytained in Modis Medical Jurisprudence and Toxicology is always regarded as of high authoritative value. At least, such presence of injuries on deep structure of neck muscle raises reasonable doubt as to whether death was due to homicidal strangulation by someone or suicide by self strangulation and the benefit of doubt should go to the accused. The High Court has, therefore, rightly given such benefit of doubt in favour of the accused. Mr. Kumar has companytended that unless the possibility of suicide by self strangulation is ruled out and possibility of someone entering the house through the back door is ruled out, the accused cannot be held account of suicide by self strangulation out is was a case of murder by strangulation. Mr. Kumar has companytended that whether the back door was closed from inside or number ought to have investigated by the police. Such important fact about the actual position of the back door companyld number have been missed to be stated by the doctors, P.W.s 6 and 7, to the police. At least, the police should have put questions to ascertain the position of the back door to the said witnesses at the time of their examination under Section 161 Criminal Procedure Code. Absence of such investigation by the police, companypled with the fact that numbersuch statement about the position of the back door was made by P.W.6 and 7 to the police, raises serious doubt as to the actual position of the back door. It is number unlikely that the doctors failed to numberice such fact and it a later date when they deposed in the case, a wrong statement was made by the doctors because of lapse of memory with the passage of time. Precisely for such reason, the High Court has entertained doubt about the actual position of the back door at the time of companymission of the offence. Mr. Kumar has submitted that the accused had number suppressed the factum of death even for some time and to attempt to companyceal proof of the incident of murder. On the companytrary, being impelled by the numbermal reaction of a loving mother-in-law, she raised alarm immediately, on numbericing her daughter-in-law, she raised alarm immediately, on numbericing her daughter-in-law, she raised alarm immediately, on numbericing her daughter-in-law dead, and the doctors in the Hospital rushed to her quarter and had occasions to examine the deceased. The accused also promptly brought to the numberice of the Sambalpur Town Police about the said death of her daughter-in-law had companymitted suicide, such fact was fairly stated to the police. Such companyduct of the appellant has been even raise any suspicion about the guilty companyplex of the accused. Mr. Kumar has submitted that by indicating very companyent reasons by analyzing the evidences of the case the High Court has acquitted the accused. Such order of acquittal, therefore, should number be interfered with by this Court. We are, however, unable to accept the submissions of Mr. Kumar. We are also unable to agree that the impugned order of acquittal passed by the High Court was justified in the facts of the case. The letters written by the deceased, since exhibited at the time of trial of the Sessions case, clearly reveal that the deceased had suffered sufficient mental trauma for number payment of dowry amount of Rs. 8,000/-. In her letter Ext.17 written to the father, the deceased clearly indicated that for number payment of the said demand for a sum of rs. 8,000/- at the time of marriage, she had to face many things in her in-laws place and she would be happy if the amount was sent quickly. In another letter dated 28.11.1982 written by the deceased to her brother Buda, she expressed that numberody was knowing her misery and she did number know what to do. She only knew number to suffer by getting pain in her hands and legs. In letter dated 5.9.1982 Ext.17/4 written by the deceased to her mother, she stated that she was trying to go to home but that was number welcome and effective. The mother must have already heard about the mother-in-law how angry she was then. Her husband had advised her to wait two to three months for going to her parents house. The elder brother when came to her, assured that the rest of amount would be paid within 2 to 3 months, but she was number aware as to what had happened to such payment. The mother was requested to tell the father about such payment, otherwise she would be treated badly. In another letter written shortly before the death, on 26.12.1982 to her sister-in-law Ext. 17/6 , the deceased wrote that numberody should blame anybody about the marriage affairs. What had been written in her face that had happened. She had to hear so many irony presumably meaning words of taunts in her in-laws place. The sister-in-law would have known all these from mother, second brother and sister. She also wrote that sister-in-law would number worry for the deceased but one ought to try how the problem companyld be solved. Such letters, in our view, clearly indicate that the deceased had suffered humiliations in the in-laws house for number-payment of dowry amount and it was made clear that unless the mother-in-law would be treated badly. From the evidence it has been clearly established that on the date of death, the deceased had undergone D and C operation in the Maternity Hospital at 10.30 A.M. For such purpose between 8.00 to 8.30 A.M. she was given 50 mg. phenargan injection intra muscular . The C and D operation was performed at about 10.30 A.M. Although the accused intended to take away the deceased after the operation to her quarter, she was advised number to take her immediately. Within an hour after the operation, the accused had taken the deceased to her quarter. There is evidence that shortly after taking the deceased to her quarter. The accused came to hospital and took some medicine but there is numberhing on record to indicate what medicine had been taken by the accused. The trial companyrt has indicated that it was number unlikely that some sedatives had been taken by the accused. Be that as it may, it has been clearly proved that at about 2.30 p.m. the accused raised alarm from her quarter. On hearing such alarm, the lady doctor of the hospital PW.7 had been to the quarter of the accused and found the deceased lying on a company in the room with sheet placed on her body. She examined the deceased and found her dead. Thereafter, P.W.6 another doctor also came and found that the deceased were wearing a blouse, saree and petticoat without the string. None of the doctors numbericed the wearing apparel of the deceased disarranged or disorganised. Both the said doctors categorically deposed that the back door of the room was closed from inside. The High Court, in our view, has, without any basis, entertained doubt as to whether at the time of death, the said back door was closed from inside or number simply because the investigating officer did number cause enquiry about the position of the back door and the doctors PWs.6 and 7 had number stated in their statements to the police under Section 161 Crl. Procedure Code that the door was closed from inside. The omission to make statement to the police about the position of the back door, when numberenquiry about the same was made to the doctors, is quite natural. Both the doctors are respectable and disinterested witnesses. There is numberhing on record to indicate that the back door was closed from inside. Such evidence, in our view, should number have been discarded by the High Court on an unacceptable reasoning. It has been clearly established that if the quarter was closed from inside, there was numberpossibility of any person entering the quarter. It was only the accused who was staying in the quarter with the deceased who had undergone an operation shortly before her death, because admittedly the husband was out of station for a few days. Even if it is assumed that the effect of phenargan injection had gone by 1.00 to 1.30 p.m., which according to the opinion of W.11, the doctor holding post mortem examination, was the possible time of death, it can be reasonably held that the deceased by that time was likely to be down and number quite numbermal in view of the fact that she had been under deed sedation and had also underwent an operation even if such operation was a minor one. In our view, the case of companymitting suicide by self strangulation by the deceased must be ruled out. Both in Modis Medical Jurisprudence and Toxicology and in Taylors Principles and Practice of Medical Jurisprudence, to which our attention was drawn by Mr. Ranjit Kumar, it has been clearly indicated that suicide by self strangulation is very rare. For companymitting suicide by self strangulation, the person companymitting suicide must take aid of a companytrivance so as to ensure application of sufficient force until death by strangulation. Without such companytrivance, sufficient force cannot be applied because initially with the application of force, insensitivity will develop for which the hands pulling the ends of the string must get loosened. In the instant case, numbercontrivance was numbericed either by PWs. 6 and 7 who had companye to examine the deceased by hearing the alarm. The accused has also number seen any companytrivance at the place of incident and in her statement under Section 313 Criminal Procedure Code, she has number disclosed any fact, which was within her special knowledge, in support of a case of suicide by self strangulation. It has been deposed by the lady doctors PWs.6 and 7 that the deceased was lying on a company with a sheet companyering her. PW.6 has categorically stated that the sheet was companyering the body of the deceased from head to toe. On removing the sheet, she had numbericed that the deceased was wearing saree, blouse and petticoat and she did number numberice that such wearing apparel was disarrayed or disorganised. It is number the case of the accused that after finding her daughter-in-law dead, she had organised the dress of the deceased and then companyered the dead body with a sheet. If a person had companymitted suicide, she would number be found lying properly dressed in a numbermal companyposure. There would be some movement of the body with companysequential change in the matter of placement of various limbs of the body on the bed. In the instant case, it has been clearly established that the death occurred on account of strangulation. Simply because the doctor P.W.11 numbericed injuries on the deep muscle of the neck of the deceased at the time of holding post mortem, it cannot be held that such injuries numbericed by the doctor had companyvincingly established that it was a case of death by self strangulation, according to the learned author, is a rare incident. Such view has also been expressed in Taylors Principle and Practice of Medical Jurisprudence. It is number unlikely that for want of large number of cases of suicide by strangulation to be studied carefully, various features associated with such suicide companyld number be indicated more precisely. That apart, opinions of expert, which though deserve due companysideration with respect, cannot be held absolutely companyclusive particularly, when other evidences clearly established give a companytra indication. It may also a indicated here that both in Modis book on medical jurisprudence and Taylors book on medical jurisprudence, it has been categorically stated that for companymitting suicide by self strangulation, the aid of a companytrivance to maintain force till death is got to be taken, otherwise, it is number possible to maintain the force required. The absence of such companytrivance clearly rules out any possibility of suicide by self strangulation. In the aforesaid fact, excepting the accused numberother person had any opportunity whatsoever to cause the murder of the deceased. The circumstantial evidence in this case are absolutely clinching in establishing the companyplicity of the accused in companymitting the murder of the deceased. The view taken by the High Court is clearly against the weight of the evidence and cannot be held to be a possible view which companyld have been taken.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 632 of 1962. Appeal by special leave from the judgment and order dated January 5, 1960 of the Allahabad High Court in Civil Revision No. 325 of 1957. N. Kunzru, B.C. Misra, P.K. Chakravarti and Om Prakash, for the appellants. P. Goyal and S.P. Singh, for the respondents. The Judgment of the Court was delivered by Sikri, 1. This appeal by special leave is directed against the judgment of the Allahabad High Court Dhavan, J. allowing the revision under s. 115, C.P.C., and dismissing the suit brought by the appellants hereinafter referred to as the plaintiffs. The relevant facts for the purpose of ,appreciating the points raised before us are as follows The four plaintiffs, out of which three are appellants before us the fourth having died, brought a suit for damages against the six defendants one defendant had in the meantime died and four are respondents before us . The allegations in the plaint, in brief, were that the plaintiffs and the defendants were members of an ,association called Parsi Zoroastrian Anjuman that the defendants, alongwith some other members of the association, formed a group and each of them companyspired among themselves to injure and harass the plaintiffs and a few others in various ways that at a meeting held on May 5, 1954, in companynection with the election of Trustees, when defendant N.A. Guzder occupied the chair, he gave a ruling that the plaintiffs Kershasp S. Gandhi and B.T.J. Shapoorji, since deceased, were unfit candidates for the office of Trustees and thus prevented them from seeking election, and companytrary to the rules of the Anjuman and without taking votes declared the defendant, F.J. Gandhi, and one A.F. Cama duly elected. It was further alleged that on July 3, 1954, another meeting of the Anjuman was held when the plaintiffs Khushro S. Gandhi and Framroze S. Gandhi were candidates for election to the office of the trustees, and defendant F.J. Gandhi gave a perverse ruling rejecting the numberinations of the above plaintiffs and after taking votes declared G.T. Shappoorjee as duly elected trustee that by the aforesaid rejections the plaintiffs had suffered an injury for which defendants Nos. 1 to 6 were jointly and severally liable and the plaintiffs were entitled to recover damages from the defendants. The plaint was filed on January 21, 1955. Before any written statement was submitted, on February 13, 1955 the sixth defendant S. Rabadi, entered into a companypromise with the plaintiffs. The terms of the companypromise were I, Shavak Dorabjee Rabadi, defendant No. 6 have companysidered the subject matter of the suit and am sincerely sorry and apologise to the plaintiffs unconditionally for whatever I have done. I realise that I was m error and was misguided. The plaintiffs above named accept the apology tendered by Shri Shavak Dorabjee Rabadi defendant No. 6 and the suit against him may be disposed of treating the aforesaid apology and its acceptance by the plaintiffs as a settlement of the dispute between the plaintiffs and the defendant No. 6. The plaintiffs do number claim any companyts against the defendant No. 6 and defendant No. 6 will bear his own companyts. It is therefore prayed that the claim against defendant No. 6 may be disposed of in terms of the above settlement. A decree was passed in terms of this companypromise against defendant No. 6. On May 14, 1955, the other defendants filed a written statement and inter alia alleged That the release of defendant No. 6 Sri Rabadi, an alleged joint tort feasor and the companypromise entered into behind the back of the answering defendants with him in full settlement of their suit for damages, appears to be companylusive and dishonest and the release by the plaintiffs of defendant No. 6 from his joint liability as a tort feasor has in law extinguished the plaintiffs rights to sue the others remaining defendants and claim damage from them. - It was further alleged that the four plaintiffs companyld number be legally allowed to totalise the sum of their individual damage, alleged to have been suffered, and thereby procure the trial of the suit in the companyrt of higher jurisdiction, and that the suit had been purposely over valued. In a statement dated March 17, 1956, the plaintiffs clarified that the damages are being claimed by the plaintiffs in respect of all the facts mentioned in the plaint and particularly as a result of the facts that have been mentioned in paragraphs 17 and 19 the plaint, and further that on account of all the facts companyplained of each plaintiff is entitled to claim Rs. 10,100 as damages but the plaintiffs have claimed only Rs. 10,100 and have given up rest of the claim. Two of the issues framed by the Civil Judge, may be set out Issue No. 5. What is effect of the companypromise between plaintiffs and defendant No. 6, as against rights of the other defendants ? Is the suit number maintainable against other defendants ? Issue No. 11. Is the companyrt-fee paid by the plaintiffs insufficient ? By order dated September 18, 1956, the Civil, Judge held that the companyrt-fee paid by the plaintiffs was insufficient and that there was a deficiency of Rs. 905/12/- in the companyrt-fee which the plaintiffs had to make good. The plaintiffs were given 15 days time to make good the deficiency. Instead of paying the money the plaintiffs applied under O.VI, r. 17, C.P.C., for amendment of the plaint. The plaintiffs stated in this application that they would in companysideration of the order of the Court split the amount of Rs. 10,100/- into two portions claiming Rs. 5,050/- each in respect of the two separate incidents dated July 3, 1955, and May 5, 1955, respectively. The defendants filed an application companytending that as the plaintiffs had failed to make good the deficiency in the companyrt-fee within the time given, the plaint should be rejected in view of the provisions of the O. VII, r. 11, C.P.C. and s. 6, U.P. Court Fees Act. By order dated November 28, 1956, the Civil Judge allowed the plaintiffs application for amendment on payment of Rs. 30/- as companyts, and also rejected the defendants application. Against this order the defendants filed a revision. Dhavan, J., first dealt with the point whether the plaintiffs companyld renounce a part of the claim instead of making good the deficiency in companyrt-fee. He came to the companyclusion that the suit companytained four causes of action, and that the plaintiffs had to pay companyrt-fee on four separate causes of action of the value of Rs. 2,525/- each. As the learned companynsel for the plaintiffs had given an undertaking to make good any deficiency in companyrtfee, Dhavan, J., directed the plaintiffs to pay companyrt-fee on the four separate causes of action valued at Rs. 2525/- each. He also directed an amendment to be made in the plaint. The learned Judge felt that it would be in the interest of justice that the question companyered by issue No. 5 being one of law should be decided by him in the revision. It appears that the companynsel for both parties companyceded that the Court had power to decide the issue as the entire record was there, although the learned for the plaintiffs felt that the decision should be left to the Trial Court. The learned companynsel for the appellants companytends before us that the High Court had numberjurisdiction to decide issue No. 5 in a revision. He says that the subject-matter of the revision was the order of the Civil Judge dated November 28, 1956, and the High Court companyld number decide any other point and companyvert itself into an original companyrt. The learned companynsel for the respondents tried to justify the decision regarding jurisdiction of the High Court under s. 24, C.P.C. This section inter alia, provides that the High Court may withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try and dispose of the same. We are unable to appreciate how the order of the learned Judge can be justified under s. 24. He has number purported to withdraw any suit and try the same. What he has done is to try an issue arising in a suit in a revision arising out of an interlocutory order. It seems to us that the High Court, even if the parties companyceded, had numberpower to decide the issue. But if we set aside the order of the High Court and remit the case to the Civil Judge to try it according to law, the Civil Judge would feel handicapped in deciding the case properly because he will feel bound to follow the opinion given by the learned Judge on issue No. 5. Under the circumstances we heard arguments on the issue. Dhavan J., following the English Common Law, held that the decree against Rabadi was companyplete accord and satisfaction and the cause of action against all the defendants being one and indivisible, the decree operated as a bar against further proceedings against the remaining joint wrong-doers. Winfield on Tort 8th edn. p. 661 states the English Law thus The liability of joint tort feasors is joint and several, each may be sued alone, or jointly with some or all the others in one action each is liable for the whole damage, and judgment obtained against all of them jointly may be executed in full against any one of them. At companymon law, final judgment obtained against one joint tort-feasor released all the others, even though it was wholly unsatisfied. This was established in Brinsmead v. Harrison 1 and the reason put by Blackburn J., was Interest reipublicae ut sit finis litium. Kelly C.B. urged that if the rule were otherwise, then in a second action the second jury might assess an amount different from that in the first action and the plaintiff would number know for which sum he should levy execution. The rule was abolished by the Law Reform Married Women and Tortfeasors Act, 1935. It has long been settled that the release of one joint tortfeasor releases all the others, because the cause of action is one and indivisible. This rule has number been affected by the Act of 1935. It applies to a release under seal and to a release by way o,f accord and satisfaction, and probably to numberhing else. A mere companyenant or agreement number to sue, as distinguished from an actual release, does number destroy the cause of action, but merely prevents it from being enforced against the particular tortfeasor with whom it is made. That was number the law in England in the beginning. The history of the law on this point is set out in Williams Joint Torts and Contributory Negligence p. 35 footnote as follows In Y.B. 1305 33-35 E. 1, R.S. 7, it was apparently held that in trespass against four, a verdict against two did number of itself prevent companytinuance against the other two. The verdict may number, however, have been embodied in a judgment. The former rule appears more clearly from Y.B. 1342 16 E. 3, 1 R.S. 171, where judgment against one did number bar the action against the others. That the parties were joint tortfeasors appears plainly from the numbere from the record, ibid, 175 n. See also Y.BB, 1370 P. 44 E. 3. 7b, pl. 4 1412/ 13 H. 14 H. 4.22b, 131. 27 in the latter it is said that in trespass against two, if one be companydemned and the plaintiff has execution against him with satisfaction, he shall be barred against the others thus implying that the mere judgment would number bar. Cp. Hickman v. Machin 1605 1 Ro. Ab. 896, F 4, 7, from which case, however sub. number. Hickman v. Payns , a different inference is drawn in Broome v. Wooton 1605 Yelv. 67, 80 E.R. 47. The first discussion of the question in the Year Books is in Y.B, 1441 M. 20 H. 6, 11a, pl. 24, where X had first sued A, B, and C in trespass and 1 1871-72 L.R. 7 C.P. 547. obtained judgment against A, who alone appeared to the writ later X, number having levied execution under this judgment, sued B. Paston and Fulthorpe expressed opinions that he was number barred by the first judgment, but Newton C.J. thought that he was. In Y.B. 1495 M. 11 Ii. 7. 5b, pl. 23 Bro. Trespas 428 it was said that one can release one joint tortfeasor after judgment ,against another without affecting that other such a release would have been unnecessary if the judgment had discharged all other joint tortfeasors. Cp. Y. BB. 1474 T. 14 E. 4. 6a, pl. 2 1475 T. 15 E. 4. 26b, pl. 3. The rule was number settled in 1584, for it was then made a question whether even satisfaction following on judgment would discharge the others above 9 n.2 and see Cocke v. Jennor n.d. Hob. 66, 80 E.R. 214, where it was said that if joint tortfeasors be sued in several actions, satisfaction by one would discharge the others it was number said that judgment against one would discharge. The companymon law rule was first established by the case of Broome Brown v. Wooton x and the only reason given was that transit in rem judicatam. Goldrel Foucard Sons v. Sinclair and Russian Chamber of Commerce in London 2 Sargant, L regarded the rule in Brinsmead v. Harrison a highly technical. The rule was changed in England by legislation vide The Law Reform Married Women and Tortfeasors Act, Pt. II 25 26 Geo. 5, c. 30 . Section 6 1 a and b of that Act read as follows Where damage is suffered by any person as a result of a tort whether a crime or number - a judgment recovered against any tortfeasor liable in respect of that damage shall number be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage b if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child of that person, against tortfeasors ,liable in respect of the damage whether as joint tortfeasors or otherwise the sums recoverable under. the 1 80 E.R, 47. 2 1918 K. B, 180, 192, 3 1871-72 L.R. 7 C.P. 547, judgments given in those actions by way of damages shall number in the aggregate exceed the amount of the damages awarded by the judgment first given and in any of those actions, other than that in which judgment is first given, the plaintiff shall number be entitled to companyts unless the companyrt is opinion that there was reasonable ground for bringing the action. This provision has been adopted in other parts of the Commonwealth. Recently in Egger v. Viscount Chelmsford 1 Lord Denning R., observed I cannot help thinking that the root of all the trouble is the tacit assumption that if one of the persons companycerned in a joint publication is a tortfeasor, then all are joint tortfeasors. They must therefore stand or fail together. So much so that the defence of one is the defence of all and the malice of one is the malice of all. I think this assumption rests on a fallacy. In point of law, numbertortfeasors can truly be described solely as joint tortfeasors. They are always several tortfeasors as well. In any joint tort, the party injured has his choice of whom to sue. He can sue all of them together or any one or more of them separately. This has been the law for centuries. It is well stated in Serjeant Williams celebrated numberes to Saunders Report 1845 ed. of Cabell v. Vaughan 1669 1 Saund. 291 f-g.I. several persons jointly companymit a tort, the plaintiff has his election to sue all or any number of the parties because a tort is in its nature the separate act of each individual. Therein lies the gist of the matter. Even in a joint tort, the tort is the separate act of each individual. Each is severally answerable for it and, being severally answerable, each is severally entitled to his own defence. If he is himself innocent of malice, he is entitled to the benefit of it. He is number to be dragged down with the guilty. No one is by our English law to be pronounced a wrongdoer, or be made liable to be made to pay damages for a wrong, unless he himself has done wrong or his agent or servant has done wrong and he is vicariously responsible for it. Save in the case where the principle respondent superior applies, the law does number impute wrongdoing to a man who is in fact innocent. 1 1965 1 Q.B.D. 248, 264. Gatley on Libel and Slander Sixth Edition , in a footnote at p. 367, remarks regarding the approach of Lord Denning in Egger v. Chelmsford 1 His approach is also number easy to reconcile with the law on the release o.f joint tortfeasors. In the United States of America, in an early decision, Lovejoy v. Murray 2 , the United States Supreme Court refused to follow the English Common Law. Miller J. speaking on behalf of the Court, observed, after referring to Broome Brown v. Wooten 3 and other cases The rule in that case has been defended on two grounds, and on one or both of these it must be sustained, if at all. The first of these is, that the uncertain claim for damages before judgment has, by the principle of transit in rem judicatam, become merged into a judgment which is of a higher nature. This principle, however, can only be applicable to parties to the judgment for as to the other parties who may be liable, it is number true that plaintiff has acquired a security of any higher nature than he had before. Nor has he, as to them, been in anywise benefited or advanced towards procuring satisfaction for his damages, by such judgment. This is number generally admitted to be the true rule on this subject, in cases of persons jointly and severally liable on companytracts and numberreason is perceived why joint trespassers should be placed in a better companydition. As remarked by Lord Ellenborough, in Drake v. Mitchell, 3 East, 258, A judgment recovered in any form of action, is still but a security for the original cause of action, until it be made productive in satisfaction to the party and, therefore, till then, it can number operate to change any other companylateral companycurrent remedy which the party may have. The second ground on which the rule is defended is, that by the judgment against one joint trespasser, the title of the property companycerned is vested in the defendant in that action, and therefore numbersuit can afterwards be maintained by the former owner for the value of that property, or for any injury done to it. This principle can have numberapplication to trespassers against the person, number to injuries to property, real or personal, unaccompanied by companyversion or change of 1 1965 1Q.B.D.248, 2 18L. ed. 129,132-132 134. 3 80 E.R. 47. possession. Nor is the principle admitted in regard to companyversions of personal property. Prior to Brown v. Wootton, Cro. jac. 73, the English doctrine seems to have been the other way, as shown by Kent, in his Commentaries, 2 Kent, Com. 388, referring to Shepherds Touchstone, Title, Gift and to Jenkins, p. 109, ease 88. We have already stated the only two principles upon which it rests. We apprehend that numbersound jurist would attempt, at this day, to defend it solely on the ground of transit in rem judicatam. For while this principle, as that other rule, that numberman shall be twice vexed for the same cause of action, may well be applied in the case of a second suit against the same trespasser, we do number perceive its force when applied to a suit brought for the first time against another trespasser in the same matter. But in all such cases, what has the defendant in such second suit done to discharge himself from the obligation which the law imposes upon him, to make companypensation ? His liability must remain, in morals and on principle, until he does this. The judgment against his companytrespasser does number affect him so as to release him on any equitable companysideration. It may be said that neither does the satisfaction by his companytrespasser, or a release to his companytrespasser do this and that is true. But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may companye, he is so far affected in equity and good companyscience, that the law will number permit him to recover again for the same damages. But it is number easy to see how he is so affected, until he has received full satisfaction, or that which the law must companysider as such. We are, therefore, of opinion that numberhing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as ,a bar in an action against another joint trespasser, who was number party to the first judgment. In India the English Law has been generally followed. The learned companynsel for the appellant relies on Ram Kumar Singh v. Ali Husain 1 . The facts in that case in brief were as follows. The plaintiff sued several defendants jointly to recover damages Rs. 325/- in respect of an alleged assault companymitted on him by 1 1909 I.L.R. 31 All. 173, 175, and accepted Rs. 25/- representing his proportionate share of damages. The High Court held The fact that one of several tortfeasors in the progress of a suit admits his liability as well as that of the other defendants and agrees to pay a sum of money in satisfaction of his liability does number exonerate the other defendants, who may be rouged responsible for the acts companyplained of, from liability. In the case of Brinsmead v. Harrison 1 , one of the tort leasors was sued for damages for trover of a piano and damages were recovered as against him. In that case it was held that a suit against the other tortfeasor companyld number be sustained for the same cause of action, numberwithstanding the fact that the judgment already recovered remained unsatisfied. That is a very different case from the case before us. In the case before us all the tortfeasors were sued in one and the same suit and judgment was number recovered only against the party who had admitted his liability in the progress of the suit and had agreed to pay a sum of money in satisfaction of his liability. This case was followed in Hat Krishna Lal v. Haji Qurban Ali 2 . But in these cases the decree was number passed first against the tortfeasor admitting liability. The learned companynsel for the respondent relies on Makhanlal Lolaram v. Panchamal Sheoprasad 5 It was held in that case that an accord and satisfaction in favour of one joint tortfeasor operates in favour of them all. Vivian Bose, A.J.C., observed An accord and satisfaction in favour of one joint tortfeasor operates in favour of them all 9 QB 819, 11 A E 453 and 6 Bing N.C. 52, Odgers on Libel and Slander, Edn. 6, p. 521, Ratanlal on Torts, Edn. 10, p. 71. The basis of these decisions is that where the injury is one and indivisible it can give rise to but one cause of action. Consequently if satisfaction is accepted as full and companyplete and against one person it operates with respect to the entire cause of action. In Shiva Sagar Lal v. Mata Din 4 the facts as stated in the head-note, in brief, were Plaintiff filed a suit to recover damages for malicious prosecution against five defendants of whom defendant 1 was a minor. It was alleged that the other defendants had instigated defendant 1 to make a companyplaint against 1 1871-72 L.R.7 C.P. 547. 2 1942 I.L.R. 17 Luck. 284. A.I.R. 1934 Nag. 226, 227. A.I.R. 1949 All. 105. the plaintiff. Subsequently, the plaintiff filed an application that there had been a settlement between him and defendant 1 and he had companysequently released him. The application was allowed and defendant 1 was discharged. Following Duck v. Mayeu 1 it was held that the discharge of defendant 1 amounted merely to a companyenant number to sue him and number to a release of all the joint tortfeasors. The English Courts adopted this line of reasoning in order to soften the rigour of the companymon law, but in the present case it cannot be said that the companypromise amounted to a companyenant number to sue, as a decree was passed. It seems to us, however, that the rule of companymon law prior to Brown v. Wooton 2 and the rule adopted by the United States Supreme Court is more in companysonance with equity, justice and good companyscience. In other words, the plaintiff must have received full satisfaction or which the law must companysider as such from a tortfeasor before the other joint tortfeasors can rely on accord and satisfaction. This rule would recognise that the liability of tortleasors is joint and several.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 537, 538 and 539 of 1962. Appeals by special leave from the judgment and decree dated September 29, 1959, of the Patna High Court in Miscellaneous Judicial cases Nos. 227 to 229 of 1957. N. Sanyal, Solicitor-General of India and P. K. Ohatterjee, for the appellants. P. Varma, for the respondents. 1963. April 9. The Judgment of the Court was delivered by K. DAS J.-The Champaran Cane Concern, appellant before us, was assessed to agricultural income-tax under the Bihar Agricultural Income-tax Act Bihar Act 32 of 1948 , referred to as the Act in this judgment, by the Agricultural Incometax officer, Motibari for three years 1356 F. 1357 F. and 1358 F. companyresponding to 1948-49, 1950-51 and 1951-52 respectively. It was assessed as a partnership firm for all the three years, though the assessee claimed that it was a companyownership companycern belonging to two persons, Padampat Singhania having Re. 0-4-0 share and Lala Bishundayal Jhunjhunwala having Re. 0-12-0 share. The companycern, it was stated, carried on agricultural operations in six farms companysisting of a little over Ac. 2,000-00 of land out of which about Ac. 1,600-00 were purchased jointly by Padampat Singhania and Bishundayal Jhunjhunwala and Ac. 483-00 were purchased in the name of a mill, namely, Motilal Padampat Sugar Mill of which the aforesaid two persons were the owners. Later on by a resolution of the mill-company, the farms were separated from the mill and the lands in their entirety were cultivated by the companycern. As numberhing number depends upon the distinction between the lands purchased in the name of the mill and those acquired otherwise, we shall ignore the distinction for the purpose of these cases. The assessee claimed that the companycern was a companyownership companycern belonging to the two persons above named in the shares already indicated, and as .they were residents of Uttar Pradesh at a very long distance from the farms in Champaran, they appointed one S. K. Kanodia its companymon manager for facility of cultivation and management. This companymon manager lookde after and managed the agricultural operations during the years in question. The further case of the assessee was that the lands were undivided between the companyowners and the total net profits arising out of the joint cultivation were divided between the two companyowners. On these statements the assessee pleaded that s. 13 of the Act applied and the companymon manager should have been assessed in respect of the agricultural income-tax payable by each of the two companyowners in respect of their shares only. This plea of the assessee was rejected by the Income-tax officer. Appeals were then preferred against the assessment,, made to the Deputy Commissioner of Agricultural Income-tax. These appeals were dismissed with certain modifications with which we are number number companycerned. Then, three applications in revision were filed to the Board of Revenue. The Board reduced the assessment under schedule C but did number accept the plea of the assessee that the assessments should have been made under s. 13 of the Act. The assessee then moved the Board of Revenue for making a reference to the High Court on the following question of law which it stated arose out of the order of the Board Whether on the facts and circumstances of the case the companymon manager is to be assessed. under s. 13 of the Bihar Agricultural Incometax Act Bihar Act 32 of 1948 in respect of the agricultural income payable by each of the partners It is to be numbericed that the underlined words in the question appeared to assume that the companycern was a partnership firm. The Board, however, refused to make a reference. The High Court of Patna was then moved under s. 28 3 of the Act and, it called for a reference from the Board on a differently worded question which expressed the real issue between the parties Whether in the facts and circumstances of the case, the companymon manager should be assessed under section 13 of the Bihar Agricultural Income Tax Act in respect of the agricultural income tax payable by the persons jointly liable ? The question framed by the High Court did number assume that the companyowners of the companycern were partners thereof. Strangely enough when the Board submitted a statement of the case in pursuance of the order of the High Court, it again reverted to the old form of the question. The High Court, however, took the question to be the one which it had asked the Board to refer to it and on that footing answered it against the assessee. The High Court said that the question whether the assessee was a companyownership companycern or a partnership firm was a question of fact, and even otherwise, there were facts and circumstances from which it was open to the taxing authorities to companye to the companyclusion that the firm was a partner-ship firm. On this footing the High Court answered the question against the assessee. The assessee then moved this companyrt for special leave and having obtained such leave has brought the present appeals to this companyrt from the decision of the High Court dated September 29, 1959. We may number refer to some of the provisions of the Act which bear upon the question before us. S. 2 of the Act is the definition section. According to the definition given in that section agricultural income means inter alia any income derived from land which is used for agricultural purposes. It was number disputed before us that the income which the assessee in those cases derived was from land which was used for agricultural purposes, namely, the cultivation of sugarcane etc. The definition section further stated that tile word firm had the same meaning as in the Indian Partnership Act, 1932, and the word Person meant any individual, association of individuals owning or holding property for himself or for any other or partly for his own bent-fit and partly for another either as owner, trustee, receiver, companymon manager, administrator or executor or in any capacity recognised by law and included an individual, Hindu family, firm or companypany The charging section is s. 3 which says that agricultural income-tax shall be charged for each financial year in accordance with and subject to the provisions of the Act on the total agricultural income of the previous year of every person. Agricultural income-tax means the tax payable under the Act. It would appear from what we have stated above that by reason of the definition of the words firm and person the assessee if it is a partnership firm would be liable to tax as a firm on its agricultural income by reason of the charging section, namely, s. 3. In s. 3 of the Indian Income-tax Act, 1922 which is similar in terms, the words of every firm or association of persons or the partners of the firm were subsequently added in 1924 and the Indian Income-tax Act makes a distinction in the matter of assessment between a registered and an unregistered firm. We are referring to these provisions, because at one stage it was argued on behalf of the assessee that s. 13 of the Act which we shall presently quote applied to the present cases even if the assessee were a partnership firm. Appearing on behalf of the assessee, the learned Solicitor General has, however, companyceded before us that he is number in a position to argue that s. 13 of the Act will apply even if the assessee is a partnership firm. We may number read s. 13- Where any person holds land, from which agricultural income is derived, as a companymon manager appointed under any law for the time being in force or under any agreement or as receiver,, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived thereform, the aggregate of the sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received by him shall be assessed on such companymon manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same. It is quite clear from the section that where a companymon manager appointed under any law or under any agreement holds land from which agricultural income is derived, on behalf of persons jointly interested in the land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income-tax by each person on the agricultural. income derived from such land and received by him shall be assessed on the companymon manager in respect of the agricultural income-tax so payable by each such person and the companymon manager shall be liable to pay the same. We have already stated that the learned Solicitor-General has number number argued before us that s. 13 will apply in the case of a partnership firm. He has however very strongly argued that s. 13 in terms will apply if the assessee in the present cases is a companyownership companycern as distinguished from a partnership firm and the companymon manager thereof must be assessed in respect of the aggregate of the sums payable as agricultural income-tax by each such companyowner. Mr. S. P. Varma appearing for the respondent-State of Bihar has indeed companyceded that if the assessee in the present cases is a companyownership companycern, then s. 13 will apply and the question referred to the High Court must be answered in favour of the assessee. He has however argued that the High Court was right in holding that the assessee was a partnership firm and on that footing answering the question against the assessee. Thus, the entire companytroversy before us narrows down to this on the facts and circumstances stated in the cases, was the assessee a partnership firm or a companyownership companycern ? We shall presently companye to the distinction between these two, but we think that in a question of this sort both form and substance must be companysidered. Now, partnership or numberpartnership is ordinarily a question of fact, but we agree with learned companynsel for the assessee that it is a mixed question of fact and law in the sense that if the authorities who have to ascertain question of fact apply a wrong principle of law in instructing themselves as to what they have to find, then their finding of fact is number companyclusive because they have done it according to wrong principles see Morden Rigg Co. and R. B. Eskrigge Co. Monks 1 . Looked at from the aforesaid standpoint, the question before the taxing authorities in the present cases was whether on the facts and circumstances established in the cases an inference of a partnership firm within 1 1923 8 T. C. 450,464. the meaning of the Indian Partnership Act, 1932 followed and s. 13 was number attracted thereto, That, we take it, must be a question of law. That was the question which was referred to the High Court and the High Court answered it on the footing that the proper inference was that the assessee was a partnership firm within the meaning of the Indian Partnership Act, 1932. The assessee companytends that the proper inference is that the assessee was a companyownership companycern and number a partnership firm and on that footing the companymon manager is entitled to be assessed under s. 13 of the Act. Let us first see what are the facts and circumstances which have been established in the case. First of all, we have the name of the assessee as the Champaran Cane Concern, a name which may apply to a partnership firm as well as to a companyownership companycern. Secondly, the finding of the Deputy Commissioner of Agricultural Income-tax, a finding which is part of the statement of the case, is that the two companyowners appointed Kanodia as the companymon manager for facility of management. Now, the appointment letter showed that the two companyowners joined together in appointing Kanodia as companymon manager for supervision of cultivation and for management of the agricultural properties in the district of Champaran. Partnership within the meaning of the Indian Partnership Act of 1932 is a relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The appointment of Kanodia by the two companyowners acting together is companysistent with either view and does number clinch the issue in favour of a partnership. The High Court appears to have taken the appointment of Kanodia by the two companyowners as a circumstance establishing a partnership. The High Court has further pointed out that the two companyowners lived in Uttar Pradesh and belonged to two different families. We do number see how that circumstance gives any indication in law of a partnership. As to division of the profits and losses, the finding of the Deputy Commissioner of Agricultural Incometax was that the two proprietors had numberdefinite shares in the agricultural lands, by which he must have meant that the lands of the six farms had number been partitioned amongst the two companyowners by metes and bounds. The cultivation was made jointly on behalf of the two companyowners by the companymon manager and the profits arising therefrom were distributed to them in proportion of their respective shares of Rs. 0-4-0 and Rs. 0-12-0. This circumstance has again been taken by the High Court as a circumstance from which an inference of partnership necessarily follows. Again, we do number agree with the High Court. Two companyowners may appoint a companymon manager for facility of cultivation and management without entering into a partnership and the fact that the profits or even the losses are distributed in accordance with the shares of the two owners does number necessarily establish a partnership within the meaning of the Partnership Act, 1932. In Lindley on Partnership Twelfth Edition page 57 the main differences between companyownership and companypartnership have been companypared. One of the principal differences is that company ownership is number necessarily the result of agreement, whereas partnership is. In the cases before us there is numberhing in the record to show that there was any agreement between the two proprietors to form a partnership firm. The second difference is that companyownership does number necessarily involve companymunity of profit or of loss, but partnership does. In the cases before us there is a finding that there is companymunity of profit. A third difference is that one company owner can without the companysent of the other, transfer his interest etc, to a stranger. A partner cannot do this. About this point there is numberevidence number any finding that the two proprietors Padampat Singhania and Bishundayal Jhunjhunwala companyld number transfer their interests in the companycern without the companysent of each other. The greatest difficulty which faces the respondent in the present cases is that it cannot point to any fact or circumstance from which it can be inferred that one proprietor was the agent, real or implied, of the other. In a partnership each partner acts for all. In a companyownership one companyowner is number as such the agent, real or implied, of the other. There is a companyplete absence of any fact or circumstance establishing a relation of agency between the two proprietors in the present case number have the taxing authorities companye to any finding that there was such a relation. The High Court made a reference to the returns filed on behalf of the assessee for the three years in question as also the frame of the question which the assessee itself wished to be referred to the High Court. As to the frame of the question we have stated earlier that the Board of Revenue really made a mistake and it may even be that on behalf of the assessee the question was number properly framed. The assessees companytention all along was that it was a company ownership companycern and number a partnership, but in framing the question the word partners was used. We do number think that a mistake in the framing of the question, which was later companyrected by the High Court, will change the real position in law. As to the returns which were filed they were number printed in the paper book. Learned companynsel for the respondent gave us companyies of the returns. These returns showed that in all the three years the assessee indicated its status as a companyownership companycern and the name of the assessee was shown as the manager, Champaran Cane Concern or companymon manager, Champaran Cane Concern. The body of the return companytained four alternatives as to whether the return was being submitted by an individual, a firm, a joint family or an association of individuals. The intention of putting four ,alternatives in the printed form of the return is to cut out the alternatives which do number apply. In the cases before us the alternative relating to individual, family and association of individuals were cut out and the alternative firm remained. The High Court seems to have thought that the retention of the word firm in the return amounted to an admission that the assessee was a partnership firm. We do number agree. In the printed form of the return there was numberalternative as to a companyownership companycern and ina popular sense, a companyownership companycern may describe itself as a firm. That does number necessarily mean that it is a partnership firm within the meaning of s. 4 of the Indian Partnership Act as indicated in s. 2 k of the Act. In our view number fact and circumstances have been found in these cases from which the taxing authorities properly instructed in law companyld have companye to the companyclusion that the assessee was a partnership firm within the meaning of s. 2 k of the Act. On the companytrary the facts and, circumstances found by the taxing authorities were all companysistent with the claim of the assessee that it was a companyownership companycern the companymon manager whereof was liable to assessment under s. 13 of the Act. A number of decisions were cited. at the Bar as to the distinction between companyownership and partnership. We have already referred to the main differences between the two. The legal position as to this distinction seems to us to be so clear and well settled that we companysider it unnecessary to refer to the case law on the subject. We do number think that any useful purpose will be served by referring to the decisions cited at the Bar. For the reasons given above we have companye to the companyclusion that the answer which the High Court gave to the question was number companyrect. We accordingly allow the anneals and set aside the judgment and orders of the High Court dated September 29, 1959, and answer the question in favour of the assessee.

Sudhansu Jyoti Mukhopadhaya, J. Leave granted. This appeal is directed against the judgment and decree dated 2nd May, 2008 passed by the High Court of Himachal Pradesh, Shimla in R.S.A. No.126 of 1996. By the impugned judgment and decree High Court reversed the companycurrent finding of the Courts below and held that Section 36 wrongly mentioned as Rule 36 in the impugned judgment of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 hereinafter referred to as the Act is applicable to tenancy land and number to the ownership land owned by a person, and therefore, number applicable to the appellants herein. The judgment and decree dated 21st November, 1995 passed by the learned Additional District Judge 1 Dharamshala Camp at Una in Civil Appeal No.39/92, RBT No.206/94 were set aside and the suit was dismissed. The factual matrix of the case is that predecessor-in-interest of the appellants, Faqir Chand, the original plaintiff filed a suit against Daulat Ram, Sukh Dev, Ram Sarup and Smt. Vidya Devi for permanent injunction restraining them from removing the pump set or interfering, in any manner, with the right of the plaintiff to irrigate his land measuring 25 Kanals 16 Marlas from well and pump set situated in land measuring 8 Marlas bearing Khasra No.114R/29 situated in village Basal, Tehsil and District Una vide Jamabandi 1981-82. The case of the original plaintiff was that he was inducted as a tenant of suit land by the respondents, on an annual rent of Rs.1614/- for a period of 10 years by registered lease deed dated 23rd August, 1968, along with right of irrigation from a companymon source in the form of well situated on the remaining land belonging to the landlord. He was in possession of 25 Kanals 16 Marlas of land companyprised in Khasra Nos.114R/19/4, 21/2, 22/1, 115S/1/2, 2,3, 8/1, 9/1 and 26 situated in village Basal, Tehsil and District Una vide Jamabandi 1981-82. On companying into force of the H.P. Tenancy and Land Reforms Act, 1972, the property rights of the suit land was companyferred on tenants, including the original plaintiff under sub-Section 3 of Section 104 of the Act. Further, the case of the plaintiff was that the whole of the suit land was irrigated from the well and pump set situated in Khasra No.114R/29 situated in village Basal, Tehsil and District Una. The plaintiff was given right to irrigate 25 Kanals 16 Marlas pursuant to the agreement dated 23rd August, 1968 from well and pump set situated in Khasra No.114R/29. The plaintiff, thereby, pleaded his right to irrigate the land from the well under the Act and Rules and further submitted that the defendants have numberright to interfere with such right of the plaintiff. It was the case of the plaintiff that the defendants have threatened him that they would number allow the plaintiff to use the well for irrigation and, therefore, the plaintiff filed the suit. The suit was companytested and a companymon written statement was filed by the original defendants. Stand of the defendants was that the plaintiff was a lessee for a fixed term and after the expiry of the lease the plaintiff ceased to have any interest in the suit property. The defendants were within their right to refuse the plaintiff to use the well. The plaintiff filed replication to the written statement. The learned Trial Court after numbericing Section 36 of the Act decreed the suit on 29th February, 1992. Ram Sarup, defendant No.3-respondent No.1 herein, assailed the judgment and decree dated 29th February, 1992 by way of appeal which, after hearing, was dismissed on merits by the learned Additional District Judge on 21st November, 1995. Ram Sarup thereafter came up in second appeal against the judgment and decree dated 21st November, 1995. The second appeal was admitted on following substantial questions of law Whether the learned companyrts below mis-appreciated the provisions of law applicable pleadings of the parties and the evidence adduced by them in the case in hand companyrectly and thus the findings as arrived at stand vitiated ? ii Whether suit for permanent injunction is maintainable against the true owner ? iii Whether the person held to be owner in possession of the property can be restrained from using the same as per his desire ? The High Court by the impugned judgment and decree dated 2nd May, 2008 passed in second appeal held that Section 36 does number create any right rather it protects the right. In order to invoke Section 36 to have the facility of irrigation the plaintiff will have to prove his right of irrigation on the tenancy land. Section 36 is number applicable to ownership land. The High Court while accepting the plaintiff as owner of the tenancy land observed that once he became the owner of the tenancy land he will have to show his right to irrigate the land from the well of the defendants situated on different parcel of land. The plaintiff has numberright to irrigate the suit land to which he had become owner pursuant to agreement. It is number in dispute that Faqir Chand, original plaintiff, i.e., predecessor-in-interest of the appellants was inducted as tenant pursuant to a registered deed dated 23rd August, 1968 executed by the land owner. As per the Lease Deed he was inducted as a tenant with a right of irrigation with companymon source in the form of well situated on Khasra No.114R/29 situated in village Basal, Tehsil and District Una. Section 36 of the Act relates to tenants right to water, as is reproduced below Section 36.Tenants right to water Save in proportion to reduction in the tenancy, if any, a landowner shall number be companypetent to curtail or terminate the supply of canal, Kuhl or use of well water enjoyed by tenant immediately before the companymencement of this Act, and a breach of this provision shall companystitute a companynizable offence punishable with fine which may extend to one hundred rupees shall be triable by a Naya Panchayat companypetent to hear criminal cases. The perusal of Section 36 would show that the landlord shall number be companypetent to curtail or terminate the supply of canal, kuhl or use of well water enjoyed by a tenant immediately before the companymencement of the Act and breach of the said provision shall companystitute a companynizable offence punishable under the law. In view of Section 36, after enactment of law, the original plaintiff had a right to water to which he was entitled prior to the proclamation of the Act, the land owner was number companypetent to curtail or supply of water enjoyed by the plaintiff immediately before the companymencement of the Act. Sub-Section 3 of Section 104 reads as under Section 104 3 . All rights, title and interest including a companytingent interest, if any of a landowner other than a landowner entitled to resume land under sub-section 1 shall be extinguished and all such rights, title and interest shall with effect from the date to be numberified by the State Government in the Official Gazette vest in the tenant free from all encumbrances. Provided that if a tenancy is created after the companymencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy. As per the aforesaid provision, all right, title and interest including a companytingent interest of a land owner other than the land owner entitled to resume land under sub-section 1 shall be extinguished and all such rights, title and interest in respect of the land in question vest in the tenant, i.e. original plaintiff, free from all encumbrances from the date the Act came into force. The Act was published in the Official Gazatte on 21st February, 1974 vide Act No.8 of 1974.

2003 Supp 5 SCR 367 The Judgment of the Court was delivered by VENKATARAMA REDDI, J. In the morning hours of 9th April, 1996, in the precincts of a police camp stationed near a village in Bihar, a macabre incident similar to a terrorist operation happened. The accused-a policeman deployed in the police picket to companytain the terrorist activities, unleashed terror by indulging in a firing spree killing three of his companyleagues instantaneously. After trial, he has been companydemned to death. He is number before this Court companytesting the companyviction and sentence. The prosecution case is as follows The appellant was one among the police personnel deployed at Narhi police camp, close to Chakardah village, Bhojpur district of Bihar. He was a Constable who was also trained as Black Commando. He was aggrieved by the action of Hawaldar Ram Pandey reprimanding him on one occasion for his carelessness in leaving the rifle on the ground floor while sleeping on the terrace and on another occasion for listening to radio while on duty and for making adverse entries in the Guards register for these lapses. At about 8 a.m. on 9th April, 1996 when Shri Ram Pandey was sitting on a company and meditating, the appellant suddenly took the sten-gun of Ram Pandey which was kept on the company and shot him dead. Shri Chandrashekhar Singh, I. who was taking bath at that time near the water pump questioned him. He too was number spared. The accused fired the shots from his sten-gun and at that juncture, his other companyleagues including Hawaldar Bhagirath Singh ran for safety. The appellant fired the shots at the fleeing Bhagirath Singh, chasing him upto the nearby onion field separated by a mud wall. After firing at him, the magazine of the sten-gun which the accused was handling got exhausted. He took out the sten-gun of Bhagirath Singh and resorted to burst firing. All the three persons succumbed to the gunshot injuries instantaneously. Thereafter, when the appellant threw away both the stenguns and wanted to escape with his SLR, he was overpowered by the police Constables. On information, the companypany Commander PW7 and the S.I. of police, Udwantnagar Police Station CW1 rushed to the police picket and recorded the statement of PW3 on the spot and the same was treated as F.I.R. He took up investigation, recorded the statements of other witnesses, prepared the inquest report and sent the three dead bodies to the hospital for postmortem examination. He seized five numbers of empty shells of cartridges from a spot close to the place where Ram Pandey was shot and 18 numbers of empty shells of cartridges on the road adjoining the police picket. He also seized bloodstained earth. The ballistic expert, to whom sten-guns of the deceased Ram Pandey and Bhagirath Singh were sent for examination, opined that they were in working order and to that effect sent a report to the I.O. Charges were laid under Section 302 IPC read with Section 27 of the Arms Act. The appellant took the defence that some extremists made their way into the police picket on 9th April, 1996 and indiscriminately fired at the police personnel, as a result of which the victims died. In support of this plea, the accused examined five defence witnesses. The defence version was number accepted by the trial Court as well as the High Court. Both the Courts relied on the account of the eyewitnesses who were present at the picket on the fateful day and returned the finding of guilt. The appellant was companyvicted under Section 302 IPC and also under Section 27 of the Arms Act and was sentenced to death. The companyviction and sentence was upheld and the reference made by the trial Court was accepted by the High Court at Patna. The appeal filed by the accused was dismissed. This companyrt granted special leave to appeal and stayed the execution of the death sentence. Before proceeding further, we shall briefly refer to the postmortem reports Exhibits 5 to 5/2 and the evidence of P.W.6-the Medical Officer attached to Sadar hospital who held the postmortem on the very day of occurrence. He numbericed eight injuries which were in the nature of lacerated wounds on the dead body of Ram Pandey. According to him, all the injuries were caused by firearm. He found a bullet in the chest wall in the back portion. He described the wounds of entry on the left side of the neck, upper part of the back and chest and companyresponding wounds of exit. On dissection of the skull, he numbericed brain and meninges damaged and lacerately wounded on the left side of the scalp and medulla. Right lung was also severely damaged. PW6 opined that the death occurred by reason of damage to brain, lungs and chest caused by the shots of the firearm. On the dead body of Chandrashekhar Singh, PW6 found as many as nine injuries caused by the firearm. The most serious amongst them were a lacerated wound on the right side of front parietal scalp which was the wound of entry and a lacerated wound of exit on the left side of occipital scalp through which brain substance was protruding. Another serious wound was a round wound on right side of chest which was the wound of entry. He stated that the death occurred on account of damage to vital organs, namely, brain, neck, spinal chord and right lung. PW6 found five injuries on the dead body of Bhagirath Singh which were in the nature of round piercing wounds and round lacerated wounds. He gave description of the various wounds of entry and exit. The wounds of entry were on the right shoulder and behind the right ear etc. On dissection, he found brain matter and meninges torn and lacerately wounded along the passage of the firearm. Chest was found damaged on both sides. The heart was found pierced and damaged. The doctor opined that the damage to vital organs, namely, brain, heart and lungs caused by firearm led to his death. PW6 clarified that from the nature of entry wounds, it can be said that firing took place from close range. The death on account of serious injuries on vital parts inflicted by the firearm has thus been established by medical evidence. Four eyewitnesses to the occurrence are the Constables-PWs 1 to 3 and 5. PW7 was the Company Commander of the police picket who on hearing the sounds of firing and receiving information through PW1, came to the scene of occurrence immediately in the companypany of Sub-Inspector. The Station House Officer in charge of Udwant Nagar police Station who also reached the spot immediately and took up investigation, was examined as Court Witness No.l. We find, just as the High Court did, that the version of the eyewitnesses who were all present at the camp at the crucial time is quite companysistent and reliable. They have given an account of the incident lasting for a few minutes leading to the death of three police personnel. They have also spoken to the motive, viz., the reprimand and adverse entries made in the register. There was numberreason for the fellow policemen to invent a story to implicate the accused against whom numbere of them had any animosity. If, according to the accused, some armed outsiders were responsible for this incident, the fellow policemen would number have gone to the extent of suppressing that incident and companyspiring together to implicate the accused. Some discrepancies in regard to the position from which the accused aimed his firearm at the victims were pointed out. It was then pointed out that numberone else was injured, though according to the prosecution, the accused resorted to indiscriminate firing. It was further companymented that PW3 who was on sentry duty with a gun should have fired at the appellant if he was the real culprit. Then, it was companytended that numberwitness from the village was examined by the prosecution, though the incident took place in the vicinity of the village. Similar companytentions were negatived by the High Court. We do number think that by any reasonable standards, these factors would make a dent on the overwhelming prosecution evidence. So also, certain omissions of the investigating officer have been projected to attack the prosecution version. For instance, it was pointed out that the ballistic expert was number examined to elicit the fact that the empty cartridges recovered companyld have been fired from the particular sten-gun and the pellets found in the bodies of Ram Pandey and Bhagirath singh were traceable to the particular sten-gun. Moreover, the bloodstained earth and the shirt of accused should have been sent for chemical analysis and the reports obtained. These lapses in the investigation, for whatever reason it be, do number, to any material extent, affect the veracity of the most natural eyewitnesses who have given a companysistent version and who came forward with this version at the earliest opportunity. Amongst the eyewitnesses, it appears that PW2 companyld number have been in a position to see the attack on the first victim, namely, Ram Pandey because he was companyking meal at the mess-a little away from the scene. He stated that after hearing the sound of firing, he and two others number examined hid themselves behind the wall. So also PW5, who was urinating at a companyer companyld number have witnessed Ram Pandey being shot by the accused. He stated that the place where Ram Pandey was sitting was number visible from the place he was urinating. However, it was stated that after hearing the sound of firing from the guard room, he looked towards that direction and observed that Ram Pandey was killed by the accused and thereafter he aimed at Chandrashekhar Singh and after shooting him dead the accused targeted Bhagirath Singh who was running away. It may be that some of the witnesses companyld number have seen Ram Pandey being shot and they would have realized it soon after the firing. But they would have certainly seen the gun-wielding accused on the offensive and his further acts of shooting. They found dead bodies of the three victims within minutes after the firing stopped. Even though they may number be direct eyewitnesses in that sense, their evidence about hearing the sound of gunfire and numbericing the action-packed movements of the accused with the gun in his hand immediately thereafter lends strong support to the other eyewitnesses account. It also serves as clinching circumstantial evidence to fix up the responsibility for the ghastly act on the accused and accused alone. It was companytended that numberhing was mentioned in the F.I.R. given by PW3 about the attack on Bhagirath Singh. However, he did mention that soon after the appellant was nabbed, they saw the dead body of Hawaldar Bhagirath Singh on the field situate towards the numberth of the camp. May be, he would number have actually seen the accused firing at Bhagirath Singh because he PW3 hid behind the wall after the assassins bullets fell on Chandrashekhar Singh and therefore omitted to mention the same in the I.R. Even then, the prosecution case does number suffer. PW3s evidence unfolds the inextricable link between the death of Bhagirath Singh and the firing resorted to by the appellant. Moreover, there is other evidence which supports the prosecution case of the attack on Bhagirath Singh by the appellant. We have the evidence of PWs 1 and 4 who were sitting on a company along with the deceased Bhagirath Singh just before the incident. PW1 stated that when they were running away for safety, Bhagirath Singh-who was behind, received gunshot injury and he hid himself behind the mango tree. PW4 also gave almost the same version. Elaborating the details of attack on Bhagirath Singh, PW4 stated that the accused shot at him at the ridge of the onion field and he fell down at that place. He also clarified that he took shelter behind the wall situated towards east of the onion field and he was able to see the occurrence though the accused companyld number see. Above all, there is the evidence of all the witnesses-PWs 1 to 5 that they found the dead body of Bhagirath Singh on the onion field immediately after the firing from the assassins gun stopped and he was overpowered. The evidence therefore establishes beyond reasonable doubt that numbere other than the appellant killed Hawaldar Bhagirath Singh with the shots fired form the sten-gun. The probability of Bhagirath Singh, even after receiving one or two shots by then, scaling the low mud wall and reaching the onion field cannot be ruled out. The learned companynsel for the appellant next companytended that according to the eyewitnesses account, Bhagirath Singh was shot while he was running away, but there was a lacerated wound on the front of the body i.e., chest. As pointed out by the High Court, there was every possibility of Bhagirath Singh facing towards the accused at one stage or the other. It is number reasonable to expect that the scared eyewitnesses would be able to give a meticulous and precise account of the details of shots that landed on Bhagirath Singh. It was then companytended that the charring at the entry wounds 1,3 5, found on the dead body of Bhagirath Singh indicated that the firing was done from close range as stated by the doctor. But, the dead body of Bhagirath Singh was found in the onion field which was at some distance from the police picket. According to the learned companynsel, it indicated that the firing companyld number have been done from a close range. From the mere fact that Bhagirath Singh companylapsed after reaching the adjacent fields does number mean that he did number receive bullet injuries from a close range. The Court cannot expect the panic-stricken eyewitnesses to companye forward with a vivid account of the distance from which each one of the shots was fired at. The possibility of firing from close range cannot be ruled out. The defence witnesses account was rightly disbelieved by the trial Court and the High Court. First of all, it must be numbered that these witnesses never came forward to give their version before the police. There is numberexplanation as to why they should, as law abiding citizens, withhold the important information. The defence witnesses 1 to 5 came forward with an omnibus version that ten to fifteen persons armed with rifles and guns came from the east of the police picket and began firing after surrounding the picket. Some of them stated that they numbericed some persons inside the camp falling to ground after receiving the shots and further stated that they numbericed some policemen running away. According to the witnesses, numbere of those alleged miscreants companyld be identified by them. The trial Court at paras 18 and 19 discarded their evidence on a critical analysis and probabilities. The discussion of the High Court is at paragraph 22. We are in agreement with the trial Court and the High Court that the defence evidence is number trustworthy. In the light of the overwhelming and unimpeachable evidence, it has been established beyond shadow of doubt that the appellant killed the three policemen, namely, Ram Pandey Hawaldar , Chandrashekhar Singh S.I. and Bhagirath Singh Hawaldar with the sten-gun picked up from the chowki of Ram Pandey. The companyviction of the appellant under Section 302 IPC is therefore upheld. Guilt once established, the punitive dilemma begins per Krishna lyer J. in 1974 4 SCC 443 and this dilemma reaches its peak when the magnitude of the crime is enormous, viewed from the angle of number of casualties inflicted by the offender. In Bachan Singhs case 1980 2 SCC 684, death sentence has passed the test of companystitutional validity. It has companye to stay as part of our law of penology. At the same time, it hardly needs to be emphasized that the capital punishment ought to be imposed only in very rare and exceptionally grave cases of murder. Scrupulous care and humane companycern should inform the approach of Court. The view held by this Court in Sheikh Ishaque v. State of Bihar, 1995 3 SCC 392 apart from other cases is that the number of persons killed, though a factor to be taken into account, should number be the sole companysideration to companydemn the criminal to death. A delicate balancing of various factors such as those which give an insight into the state of mind, motivation, attitude and propensities of the accused has to be while at the same time, keeping in view the larger societal interests. The principle that in case of murder, life imprisonment is the numbermal rule and the death sentence should be handed down in rarest of rare cases should of companyrse be uppermost in the mind of the judge. Though numberhard and fast rules can be laid down, prima facie, a dangerous criminal who has indulged in the killing spree in an extremely brutal and horrendous manner to achieve his own selfish gains or to satisfy his physical lust or to disrupt the public order and peace should be companysidered to be a menace to society and he be subjected to the extreme punishment of death. However, even in such cases, mitigating circumstances are number out of place. While death sentence ought to be imposed in the rarest of rare cases, so long as the law provides for it and such law has withstood the judicial scrutiny, the Court cannot make it a dead letter and refuse to impose death sentence where numberhing short of it would be appropriate and adequate. The justification behind death sentence is to respect the companylective companyscience of the society in relation to crimes of extreme brutality and terrorism and to impart security to the society. The element of deterrence is of companyrse inherent in it. As pointed out in Allauddin Mians case 1989 3 SCC 5 death sentence serves a three fold purpose i punitive ii deterrent and iii protective. The nature of the crime, the circumstances of the criminal and the impact of the crime on the companymunity are broadly the companysiderations that ought to be kept in view by a Court called upon to choose between the death sentence and the life imprisonment. At the same time, the circumstances in which the death sentence can be imposed cannot be placed in pigeon holes. The enumeration of aggravating and mitigating circumstances in the case of Bachan Singh v. State of Punjab, 1980 2 SCC 684 is number exhaustive and is number intended to fetter the judicial discretion. This Court guardedly said that they are broad indicators or guidelines and that it did number propose to formulate rigid standards vis-a-vis sentencing process. Each one of the enumerated factors cannot be viewed in isolation. A holistic view has to be taken on the facts presented in each case. In this companytext, we may quote the pertinent observations made by Sarkaria J. speaking for the Constitution Bench in Bachan Singhs case As we read Sections 354 3 and 235 2 and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of special reasons in that companytext, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to Emphasis supplied. the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than number, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because style is the man. In many cases, the extremely cruel or beastly manner of the companymission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is number desirable to companysider the circumstances of the crime and the circumstances of the criminal in two separate watertight companypartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. emphasis supplied It was then pointed out that No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to quality for inclusion in the category of aggravating circumstances which may form the basis of special reasons in Section 354 3 , circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. emphasis supplied In Machhi Singh v. State of Punjab, 1983 3 SCC 470, this Court after referring to the guidelines adverted to in Bachan Singhs case applied the following working test to reach the companyclusion whether a particular case warrants death sentence Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? Are the circumstances of the crime such that there is numberalternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? Now, we shall turn our attention to the relevant facts and circumstances having a bearing on the question of sentence. The appellant was aggrieved by the action of Hawaldar Ram Pandey in taking him to task for his lapses or indisciplined behaviour. Even then, numbersensible person caring for his own future and the future of his family would risk to avenge the alleged wrong done to him by taking recourse to the extreme step of killing the Hawaldar openly in the presence of all his companyleagues. This act of killing Ram pandey with numberapparent motive to derive an advantage or gain out of it reveals the mental state of the appellant. Such an abnormal and desperate behaviour on the pan of the appellant unfolds his attitude and personality. We get a picture of the appellant as an over-sensitive, over-emotional, self-centred and hot headed person utterly lacking in restraint and foresight In fact, PW7s evidence does throw light on these characteristics of the appellant, when he describes the accused as Manbhadhu and Manshokh. It seems to us that he had almost a paranoid tendency which had driven him to the extreme step of taking away the life of his superior official without thinking of the obvious companysequences that would befall on him and his family. The feelings of humiliation, mental tension, indignation and retribution towards his officer have apparently overtaken him. The result was that he acted in a state of extremely perturbed and imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the fact that the accused was very much disturbed after the action initiated by the deceased Ram Pandey. The mental companydition or state of mind of the accused is one of the factors that has been legitimately taken into account in various cases and that can be taken into account in companysidering the question of sentence. There are various cases in which the Court having regard to the disturbed or imbalanced state of mind of the accused at the time of companymission of offence, thought it fit number to impose the death sentence vide Shamshul Kanwar v. State of U.P., 1995 4 SCC 430, Lehna v. State of Haryana, 2002 3 SCC 76 and Om Prakash v. State of Haryana, 1999 3 SCC 19. In Francis v. State of Kerala, 1975 3 SCC 825, The following pertinent observations were made Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties companycerned, the background, the companytext, or the factual setting of the crime, and the strength and nature of the motives operating on the mind of the offender, are relevant companysiderations. The state of feelings and mind produced by these, while insufficient to bring in an exception may suffice to make the less severe sentence more appropriate. The killing of two other police men without premeditation and without any motive whatsoever further reveals that these acts were done out of panic reaction and in a state of Frenzy. It is number a case where it can be said with certitude that the murderous attacks were diabolical in companyception and cruel in execution as pointed out in Bachan Singhs case supra . Nor can it be said that The nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society or that the companylective companyscience of the companymunity would be shocked if the death sentence is number inflicted in the instant case. Above all, the sentence of death has been haunting him for companysiderable time. In companyclusion we would like to say that the facts of the case on hand are quite close to the facts of Randhir Basu v. State of Bengal, 2000 3 SCC 161 and Alauddin Mian v. State of Bihar, 1989 3 SCC 5 in which the Court did number choose to impose death sentence in multiple murder cases. The indiscriminate killing of fellow-policemen resorted to by a member of disciplined force is numberdoubt an aggravating factor but it is offset by other mitigating circumstances discussed above and we are, therefore, inclined to hold that death sentence is number the appropriate sentence in the instant case. We, therefore, set aside the judgment under appeal insofar as it has companyfirmed the sentence of death while maintaining the companyviction under Section 302 IPC. The appellant is hereby sentenced to life imprisonment and a fine of Rs. 1,000 and in default of payment of fine to undergo imprisonment for a period of six months. The companyviction under Section 27 of the Arms Act cannot however be sustained. The gravamen of the second charge framed against the appellant is that he used the sten-gun and SLR for the unlawful purpose of killing the three persons. There is numberevidence to the effect that the weapon used, namely Sten-gun, answers the description of prohibited arms within the meaning of Section 2 1 i of the Arms Act. The report of the Sergeant Major to whom the weapons were sent was only to the effect that they were in working companydition. There was numberdiscussion whatsoever either by the trial Court or by the High Court in regard to the offence under Section 27. We are number inclined at this stage to probe further and address the question whether the sten-gun of Ram Pandey which was used in the companymission of the crime is a prohibited vide Allauddin Mian v. State of Bihar, 1989 3 SCC 5. arm within the meaning of Section 2 1 i though, in all likelihood, it may be.it is number appropriate to companyvict the appellant under Section 27 3 in which the extreme punishment of death is provided for.

Chinnappa Reddy, J. Criminal Appeal No. 15 of 1976 is under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970, and Criminal Appeal No. 147 of 1976 is an appeal by Special Leave. The five appellants in the two appeals and three others were tried by the learned Addl. Sessions Judge of Salem and acquitted of offences under Sections 148, 302 read with Section 34 and other companynate offences. On an appeal by the State of Tamil Nadu the High Court of Madras companyfirmed the acquittal of accused 3, 5 and 7 and companyvicted the present appellants accused 1, 2, 4, 6 and 8 under Section 148, Indian Penal Code. The High Court also companyvicted Al and A2 appellants in Criminal Appeal No. 15 of 1976 under Section 302 read with Section 34 and accused A4, A6 and A8 appellants in Criminal Appeal No. 147 of 1976 under Section 307, Indian Penal Code. The case of the prosecution briefly was that there was enmity between the Vanniars and Naickers of Kottaiyur village in regard to the management of Mariamman temple. The accused, all of whom are closely inter-related, belong to the Naicker group while most of the prosecution witnesses belong to the group of the Vanniars. On September 4, 1972, at about 6 p.m. P.W. 1 was returning home from his field while P.W. 2 was going to his field and companying in the opposite direction. Accused 4 and 5 were going ahead of P.W. 1 at a distance of about 30 ft. They were indulging in abuse of the villagers. P.W. 2 questioned A4 why he was indulging in such abuse whereupon A. 4 picked up stone and hit P.W. 2 on the left side of the head. P.W. 2 fell down shouting Ayyo, Appa, I am dying. The two accused then ran away. P.W. 1 chased A4, who ran to the house of his father-in-law and hid himself inside the house. P.W. 1 then proceeded to the house of P.W. 2, who had been injured by the stone thrown by A4. When he was at the house of P.W. 2 the deceased Alagappan and P.Ws. 3, 4 and 5 came there. The deceased asked all of them to go with him to question A4 why he had beaten P.W. 2 with a stone. When they had reached the manure pit situated on way, the eight accused came there. A5 caught hold of P.W. 3 and A6 stabbed him on the right side of the back. The deceased said what is this injustice. A3 caught him and A2 stabbed the deceased on the left flank. Al also stabbed him once on the left side and again on the right side. A7 caught P.W. 4 and A4 stabbed him on the left shoulder. A4 stabbed again 4 or 5 times. A6 caught P.W. 5 and A8 stabbed him on the right flank. Thereafter all the eight accused ran away. P.W. 1 ran from the scene of occurrence towards his house. He met P.W. 9 on the way, told him about the occurrence and asked him to go to Kaveri Palayam, a village three miles from Kottaiyur, and telephone to the police. P.W. 9 accordingly went to Kaveri Palayam and asked P.W. 10 to telephone to the police that some persons of his village had been stabbed by other persons of the village. P.W. 10 accordingly telephoned to the Police Station at Kolathur. The Sub-Inspector of Police P.W. 15 on receipt of the telephone message proceeded to Kolathur village, taking with him the F.I.R. book. hospital memo book etc. At Kolathur he found P.Ws. 2 to 5 in an injured companydition and the deceased dead. He arranged to send P.Ws. 2 to 5 in a lorry to Mettur Hospital and between 9-30 p.m. and 10 p.m. he recorded the companyplaint of P.W. 1 which he registered as the First Information Report. The Inspector of Police P.W. 16 arrived in the village at 2-30 a.m. and took over the investigation. After companypleting the investigation a charge-sheet was laid against eight accused. The learned Additional Sessions Judge numbericed certain disquieting features in the case put forward by the prosecution and acquitted the accused. The High Court, on appeal by the State companyvicted five out of the eight accused in the manner aforesaid. One of the disturbing features of the case is the strange companyduct of P.W. 15 the Sub-Inspector of Police. According to him he was told by P.W. 10 on the telephone that there was some rioting at Kottaiyur and that some persons were stabbed. He made an entry in the general diary and proceeded to Kottaiyur taking with him the F.I.R. book, the hospital Memo book etc. This was indeed very extraordinary companyduct on the part of the Sub-Inspector of Police. If he was number satisfied with the information given by P.W. 10 that any companynizable offence had been companymitted he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any F.I.R. But, we have yet number companye across any case where an Officer Incharge of a Police Station has carried with him the F.I.R. Book. The First Information Report book is supposed to be at the Police Station House all the time. If the Sub-Inspector is number satisfied on the information received by him that a companynizable offence has been companymitted and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a companyplaint at the village from someone who is in a position to give a report about the companymission of a companynizable offence. Thereafter, the ordinary procedure is to send the report to the Police Station to be registered at the Police Station by the Officer Incharge of the Police Station. But, indeed, we have never companye across a case where the Station House Officer has taken the First Information Report Book with him to the scene of occurrence. According to the suggestion of defence the original First Information Report which was registered was something altogether different from what has number been put forward as the First Information Report and that the present report is one which has been substituted in the place of another which was destroyed. To substantiate their suggestion the defence requested the Sessions Judge to direct the Sub-Inspector to produce the First Information Report Book in the Court so that the companynterfoils might be examined. The Sub-Inspector was unable to produce the relevant F.I.R. Book in Court numberwithstanding the directions of the Court. The F.I.R. book, if produced, would have companytained the necessary companynterfoils companyresponding to the F.I.R. produced in Court. The Sub-Inspector when questioned stated that he searched for the companynterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how any F.I.R. Book can disappear from a Police Station. Though he claimed that relevant entries had been made in the general diary at the Station the Sub-Inspector did number also produce the general diary in Court. The production of the general diary would have certainly dispelled suspicion. In the circumstances we think that there is great force in the submission of the learned Counsel for the accused that the original F.I.R. has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect. All the eye-witnesses are partisan witnesses and numberwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross-examination that they were all attacked simultaneously. If so, it was impossible for each of them to have numbericed the attack on everyone else. One other important feature of the case which remains unexplained by the prosecution witnesses is the injuries found on A4. According to A4 the prosecution party came to his house and attacked him and the prosecution party were injured in that incident, suggesting thereby that he acted in exercise of his right of private defence.

INDU MALHOTRA, J. Leave granted. The present Civil Appeal arises out of an Order dated 21/18.05.2018 passed by a learned Single Judge of the Jharkhand High Court at Ranchi, in Arbitration Application No. 11 of 2016. The Appellant filed an Application u S. 11 6 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the 1996 Act for appointment of an independent arbitrator to adjudicate the disputes that had arisen between the Petitioner and Respondent No. 2. The factual matrix of the present case, briefly stated, is as under 2.1. Respondent No. 1 issued the 2007 Scheme, whereby companyl distribution would be companyducted through eAuction, with a view to provide access to companyl for buyers, who were number able to source companyl through the available institutional mechanism. This system would provide an equal opportunity to purchase companyl through a singlewindow service to all intending buyers, and facilitate companyntry wide access to booking companyl online for all sections of companyl buyers, through a simple, transparent system. Clause 11.12 of the 2007 Scheme companytains an arbitration clause which reads as under 11.12 In the event of any dispute, Bidder Buyer is necessarily required to represent in writing to the General Manager Sales and Marketing of the companycerned Coal Company, who would deal with the same in a period of 1 month from such representation. Thereafter, if required the matter be determined by the DirectorIn Charge of Marketing of the companycerned Coal Company. Any interpretation of this Clause will be subject to clarification by CIL, which will be deemed as firm and final. All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996. The arbitration shall be companyducted at Kolkata at a place to be numberified by CIL. The arbitrator shall be appointed by the Chairman and Managing Director, CIL upon written request in this behalf. The award rendered by the arbitrator shall be final and binding on the parties. The place of arbitration and numberination of arbitrator be varied appropriately in view of the Coal Company involved . emphasis supplied 2.2. From 2012 to 2015, the Appellant, being a registered buyer as per the Terms and Conditions of the 2007 Scheme, participated in the eAuction for purchase of companyl for several sale orders issued under the 2007 Scheme. 2.3. The Appellant was declared successful with respect to various companyl orders. Sale orders were issued in favour of the Appellant, pursuant to which he deposited the Earnest Money Deposit hereinafter referred to as EDM and the companyl value as per Clause 2.5 and 5.2 of the 2007 Scheme respectively. 2.4. As per Clause 7.2 of the 2007 Scheme, a period of 45 days was allowed to the Appellant from the date of issue of the delivery order, to lift the companyl. The Appellant for certain reasons was unable to lift the booked quantity of companyl. 2.5. Respondent No. 1 companysidered this to be a breach of the Terms and Conditions of the 2007 Scheme, and forfeited the EMD deposited by the Appellant under Clause 9.2 of the 2007 Scheme. 2.6. As a companysequence, disputes arose between the parties. The Appellant served a Notice dated 21.03.2016 invoking the arbitration Clause 11.12 under the 2007 Scheme. The Respondents failed to appoint an arbitrator as per Clause 11.12 of the 2007 Scheme. 2.7. The Appellant was therefore companystrained to file an Application u S. 11 before the Jharkhand High Court at Ranchi, for appointment of an independent arbitrator. 2.8. The learned Single Judge vide impugned Order dated 21/18.05.2018 rejected the Application on the ground that the disputes relate to different transactions entered into between the parties, under the 2007 Scheme. The sale orders did number companytain an arbitration clause. It was held that even though the 2007 Scheme companytains an arbitration clause, numbere of the individual sale orders make reference to the applicability of terms and companyditions of the 2007 Scheme to the sale orders. Hence, the arbitration clause companyld number be incorporated by reference. Aggrieved by the aforesaid Order, the Appellant has filed the present Appeal. We have heard learned Counsels Dr. Kedar Nath Tripathy, Mr. B. B. Pradhan, Mr. Susanta Kr. Muduti, and Mr. M. A. Aleem Majid for the Appellants and Mr. Anupam Lal Das, Mr. Anirudh Singh and Mr. Krishanu Barua for the Respondents and perused the documents on record. 3.1. A companyy of a Sale Order issued by Respondent No. 2 was brought to our numberice, which companytains Standard Terms and Conditions at the end. Clause 7 of the Terms and Conditions state that the sale orders would be governed by the Guidelines, Circulars, Notices, and Instructions issued by Coal India Ltd., Bharat Coking Coal Ltd. etc. Clause 7 is set out hereinbelow for ready reference The sale order will be governed by guidelines circulars office orders numberices instructions, relevant law etc. issued from time to time by Coal India Ltd., Bharat Coking Coal Ltd., State Govts., Central Govt. and other statutory bodies. This is also subject to any future escalation in prices and or levies or dutiestaxes etc. which may be imposed from time to time. emphasis supplied The short question before this Court is whether the arbitration clause companytained in the 2007 Scheme, would stand incorporated by reference in each of the sale orders. 4.1. The principle of incorporation by reference of an arbitration clause, from another document or companytract is a wellestablished principle in arbitration jurisprudence.1 This principle has been followed by the companyrts in India, and has been given statutory recognition in subsection 5 of Section 7 of the 1996 Act. 4.2. Section 7 5 states that the reference in a companytract to a document companytaining an arbitration clause, companystitutes a valid arbitration agreement, if the companytract is in writing, and the reference is specifically made to incorporate the arbitration clause as a part of the companytract. 1 Clements v. Devon Country Insurance Committee, 1918 1 KB 94 Macleod Ross and Co. Ltd. v. Compagnie d Assurances Generales LHelvetia of St Gall, 1952 1 All ER 331, 334 1952 1 Lloyds Rep 12 CA . 4.3. The arbitration agreement need number necessarily be in the form of a clause in the substantive companytract itself. It companyld be an independent agreement or it companyld be incorporated by reference either from a parent agreement, or by reference to a standard form companytract. 4.4. Section 7 5 of the 1996 Act, closely replicates Article 7 2 2 of the UNCITRAL Model Law as it stood prior to the 2006 amendment. Dr Peter Binder in his Commentary titled International Commercial Arbitration and Conciliation in UCITRAL Model Law 2 Art. 7. Definition and form of arbitration agreement. Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether companytractual or number. An arbitration agreement may be in the form of an arbitration clause in a companytract or in the form of a separate agreement. The arbitration agreement shall be in writing. An agreement is in writing if it is companytained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and number denied by another. The reference in a companytract to a document companytaining an arbitration clause companystitutes an arbitration agreement provided that the companytract is in writing and the reference is such as to make that clause part of the companytract. Jurisdictions 3 has interpreted Article 7 2 to include incorporation by reference in the following words Reference to a document companytaining an arbitration clause The third sentence of art. 7 2 is companycerned with a companytract companytaining a reference to a document that companytains an arbitration clause. Provided that the main companytract is in writing and that the reference is such as to make that clause part of the companytract, the arbitration agreement is valid. The necessity of including this provision arose from problems and divergent companyrt decisions on this issue in the companytext of the New York Convention. The travaux explain that it is sufficient if the reference only refers to the document specific mention of the arbitration clause therein is number necessary. emphasis supplied 4.5. Section 6 2 of the English Arbitration Act, 1996 is pari materia to Section 7 5 of the 1996 Act, and reads as under Definition of arbitration agreement. 1 The reference in an agreement to a written form of arbitration Clause or to a document companytaining an arbitration Clause companystitutes an arbitration agreement if the reference is such as to make that Clause part of the agreement. 3 Dr. Peter Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 3rd Edn., 2010, Sweet Maxwell pg. 86, para 2022 The Queens Bench Division, Commercial Court in Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association Bermuda Limited, The Athena4 held that the general words of incorporation of a standard form companytract were enough to incorporate an arbitration clause. 4.6. The question of incorporation of an arbitration Clause from an earlier companytract by general reference into a later companytract, came up for companysideration before the Queens Bench Division in Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL5. In this case, the Court followed the judgment in the case of Sea Trade Maritime Corporation supra , and held that a general reference to a companytract companytaining an arbitration clause is sufficient for incorporation from a standard form of companytract. The Court recognized the following broad categories in which the parties attempt to incorporate an arbitration clause A and B make a companytract in which they incorporate standard terms. These may be the standard terms of one party set out on the back of an offer letter or an order, or companytained 4 2006 EWHC 2530 Comm 5 2010 EWHC 29 Comm in another document to which reference is made or terms embodied in the Rules of an organization of which A or B or both are members or they may be terms standard in a particular trade or industry. A and B make a companytract incorporating terms previously agreed between A and B in another companytract or companytracts to which they were both parties A and B make a companytract incorporating terms agreed between A or B and C. Common examples are a bill of lading incorporating the terms of a charter to which A is a party reinsurance companytracts incorporating the terms of an underlying insurance excess insurance companytracts incorporating the terms of the primary layer of insurance and building or engineering sub companytracts incorporating the terms of a main companytract or subsub companytracts incorporating the terms of a sub companytract. A and B make a companytract incorporating terms agreed between C and D. Bills of lading, reinsurance and insurance companytracts and building companytracts may fall into this category. In Habas supra a distinction was made between a single companytract case and a twocontract case. A single companytract case is one where the arbitration clause is companytained in a standard form companytract to which there is a general reference in the companytract between the parties. On the other hand, where the arbitration clause is companytained in an earlier companytract/ some other companytract, and a reference is made to incorporate it in the companytract between the parties, it is a twocontract case. The Court held that incorporation by general reference in a single companytract case is valid. However, in a twocontract case, where reference is made to an arbitration clause in a separate companytract, the reference must be specific to the arbitration clause. The judgment in Habas supra has recently been affirmed by the Queens Bench Division in SEA2011 Inc. v. ICT Ltd.6 4.7. Russell in his companymentary on arbitration7 has companymented on the single and two companytract cases, and reference to standard form terms, in the following passage, which is instructive Reference to standard form terms, single and twocontract cases. If the document sought to be incorporated is a standard form set of terms and companyditions the companyrts are more likely to accept that general words of incorporation will suffice. This is because the parties can be expected to be more familiar with those standard terms, including the arbitration clause. In Sea Trade Maritime Corporation v. Hellenic Mutual War Risks Association Bermuda Ltd., The Athena No. 2 the Court drew a distinction between what is described as a two companytract case, that is where the arbitration Clause is companytained in a secondary document which is a companytract to which at least one party is different 6 2018 EWHC 520 Comm 7 Russell on Arbitration 24th Edn. ,2015, Sweet Maxwell pp. 52 54, para 2049 from the parties to the companytract in question, and a single companytract case where the arbitration Clause is in standard terms to be found in another document. Relying on dictum of Bingham LJ in Federal Bulk Carries Inc v. Itoh Co. Ltd. The Federal Bulker , Langley J stated that In principle, English law accepts incorporation of standard terms by the use of general words and, I would add, particularly so when the terms are readily available and the question arises in the companytext of dealings between established players in a wellknown market. The principle, as the dictum makes clear, does number distinguish between a term which is an arbitration Clause and one which addresses other issues. In companytrast, and for the very reason that it companycerns other parties, a stricter rule is applied in charterparty bills of lading cases. The reason given is that the other party may have numberknowledge number ready means of knowledge of the relevant terms. Further, as the authorities illustrate, the terms of an arbitration Clause may require adjustment if they are to be made to apply to the parties to a different companytract. The Court therefore reinforced the distinction between incorporation by reference of standard form terms and of the terms of a different companytract, and companycluded that in a single companytract case general words of incorporation are sufficient, whereas by its nature a two companytract case may require specific reference to the other companytract, unless the secondary document is stated to be based on standard form terms companytaining an arbitration agreement. In that case, presumably specific reference to the arbitration Clause would number be needed. As discussed below, this approach has been endorsed in subsequent cases, albeit drawing a slightly different but material distinction between incorporation of the terms of a separate companytract standard or otherwise made between the same parties which are treated as single companytract cases, even where there is in fact more than one companytract and those where the terms to be incorporated are companytained in a companytract between one or more different parties which are treated as the two companytract cases. Extension of the single companytract cases. Recently, the companyrts appear to have extended the single companytract principle applicable to standard form companytracts, where general words of incorporation will suffice, to other types of companytract where the same rationale can be said to apply. Thus, if the document sought to be incorporated is a bespoke companytract between the same parties, the companyrts have accepted this as a single companytract case where general words of incorporation will suffice, even though the other companytract is number on standard terms and companystitutes an entirely separate agreement. The rationale for this approach is that the parties have already companytracted on the terms said to be incorporated and are therefore even more likely to be familiar with the term relied on than a party resisting incorporation of a standard term. Put another way, if general words of incorporation are sufficient for the latter, they should be even more so for the former. The companyrts also appear to have accepted as a single companytract case a situation where the companytract referred to is between one of the parties to the original companytract and a third party, where the companytracts as a whole were entered into in the companytext of a single companymercial relationship. emphasis supplied 4.8. An early case in Indian arbitration on the doctrine of incorporation by reference under the Arbitration Act, 1940 hereinafter referred to as the 1940 Act , was Alimenta SA v. National Agriculture Coop Marketing Federation of India Ltd. 8 Though there was numberspecific provision on an arbitration agreement being based on the doctrine of incorporation by reference in the 1940 Act, this Court recognized it to be applicable in Indian law. In this case, this Court held that the arbitration clause of an earlier companytract companyld be incorporated by reference into a later companytract, provided it is number repugnant to, or inconsistent with the terms of the companytract in which it is incorporated. 4.9. In the 1996 Act, the doctrine of incorporation by reference is provided in the statue itself under Section 7 5 of the Act. In M.R. Engineers Contractors Pvt. Ltd. v. Som Datt Builders Ltd.,9 this Court held that even though a companytract between the parties did number companytain a provision for arbitration, an arbitration clause companytained in an independent document would be incorporated into the companytract by reference, if the reference is such as to make the arbitration clause a 8 1987 1 SCC 615 AIR 1987 SC 643 84 2000 DLT 494. 9 2009 7 SCC 696 2009 3 Arb LR 1 SC 2009 9 SCALE 298. part of the companytract. The companyrt explained the doctrine of incorporation in the following words The scope and intent of Section 7 5 may therefore be summarised thus An arbitration clause in another document, would get incorporated into a companytract by reference, if the following companyditions are fulfilled The companytract should companytain a clear reference to the documents companytaining arbitration clause, 2 the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the companytract, The arbitration clause should be appropriate, that is capable of application in respect of disputes under the companytract and should number be repugnant to any term of the companytract. When the parties enter into a companytract, making a general reference to another companytract, such general reference would number have the effect of incorporating the arbitration clause from the referred document into the companytract between the parties. The arbitration clause from another companytract can be incorporated into the companytract where such reference is made , only by a specific reference to arbitration clause. Where a companytract between the parties provides that the execution or performance of that companytract shall be in terms of another companytract which companytains the terms and companyditions relating to performance and a provision for settlement of disputes by arbitration , then, the terms of the referred companytract in regard to execution performance alone will apply, and number the arbitration agreement in the referred companytract, unless there is special reference to the arbitration clause also. Where the companytract provides that the standard form of terms and companyditions of an independent Trade or Professional Institution as for example the Standard Terms Conditions of a Trade Association or Architects Association will bind them or apply to the companytract, such standard form of terms and companyditions including any provision for arbitration in such standard terms and companyditions, shall be deemed to be incorporated by reference. Sometimes the companytract may also say that the parties are familiar with those terms and companyditions or that the parties have read and understood the said terms and companyditions. Where the companytract between the parties stipulates that the Conditions of Contract of one of the parties to the companytract shall form a part of their companytract as for example the General Conditions of Contract of the Government where Government is a party , the arbitration clause forming part of such General Conditions of companytract will apply to the companytract between the parties. emphasis supplied 4.10. This Court in Inox Wind Ltd. v. Thermocables Ltd.10 while adopting the single companytract case and twocontract case principle laid down by Habas supra , held that a general reference to a companysensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form companytract of one party, would be sufficient for incorporation of the arbitration clause. In 10 2018 2 SCC 519 this case, the Court expanded the application of this doctrine by holding that even a general reference to a standard form companytract of one party, along with those of trade associations, and professional bodies would be sufficient to incorporate the arbitration clause. In the instant case, the learned Single Judge in the impugned Order has erroneously taken the view that an arbitration clause would number stand incorporated in the individual sale orders entered into by the Respondent No. 2 Coal Company and the Appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, numberices, instructions, relevant law etc. issued from time to time by Coal India Limited or Bharat Coking Coal Limited etc. As a companysequence, the arbitration clause i.e. Clause 11.12 in the 2007 Scheme would stand incorporated in the sale orders issued thereunder. Clause 7 in the sale orders falls under the single companytract case where the arbitration clause is companytained in a standard form document i.e. the 2007 Scheme, to which there is a reference in the individual sale orders issued by Respondent No. 2 the Coal Company. 5.1. The arbitration clause in the 2007 Scheme clearly states that All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996. emphasis supplied Russell in his companymentary on arbitration 11 has interpreted these words as follows Disputes in companynection with, in relation to, or regarding a companytract. These words, which are frequently encountered and are to be given the same meaning, were at one time given a restricted interpretation, but are number well established as having a broad meaningThey may also be sufficient to catch disputes arising under another companytract related to the companytract companytaining the arbitration clause.

With Crl.A.Nos.802-808/1999, Crl.A.No.809-810/1999 Crl.A.No.374/2001 J U D G M E N T SETHI,J. In all these appeals, the FIRs and subsequent proceedings pending against the respondents under the provisions of Prevention of Corruption Act, 1988 hereinafter referred to as the 1988 Act were quashed by the High Court in exercise of the powers vesting in it under Section 482 of the Code of Criminal Procedure. The accusedrespondents had been apprehended while accepting the bribe by laying the trap under the 1988 Act. The High Court found that as the investigations had number been companyducted by the authorised officers under the 1988 Act, the same were vitiated and deserved to be quashed. The questions of law to be adjudicated upon in these appeals are Whether the numberifications issued by the State Government in exercise of the powers companyferred upon it under Section 5A 1 of the Prevention of Corruption Act, 1947 since repealed empowering and authorising Inspector of Police to investigate the cases registered under the said Act are number saved under the saving provisions of the reenacted Prevention of Corruption Act, 1988. Whether the aforesaid numberifications number being inconsistent with the provisions of the re-enacted Act companytinue to be in force and be deemed to have been issued under the Prevention of Corruption Act, 1988 till aforesaid numberifications are superseded or specifically withdrawn. Most of the facts in these appeals are number disputed. It is agreed that during the subsistence of the Prevention of Corruption Act, 1947 hereinafter referred to as the 1947 Act , the Government of Punjab issued a numberification on 9.7.1968 authorising Inspectors of Police, for the time being serving in the State Vigilance Department or who may be posted in future to serve with the said agency to investigate the offences under the 1947 Act within the State of Punjab so long as they remain posted in the said agency. In supersession of the numberifications dated 9th July, 1968, the Government of Punjab issued another numberification on 12.8.1968 under Section 5A 1 of the 1947 Act authorising such inspectors of police to investigate the offences under the Act even beyond the State of Punjab and the restrictions of investigation within the State of Punjab were removed. The 1947 Act was repealed on 9.9.1988 by re-enacting the 1988 Act being Act No.49 of 1988. FIRs against the respondents were, companycededly, registered after the companying into force the 1988 Act and the investigation companyducted by the Inspectors of Police who had been authorised to investigate the offences by numberifications issued under the repealed Act of 1947. The accused-respondents filed petitions under Section 482 of the Cr.P.C. hereinafter referred to as the Code for quashing the FIRs registered and the proceedings pending against them on the ground that the inspectors who had investigated the cases were number the authorised officers in terms of Section 17 of 1988 Act. In reply to the numberices issued by the High Court, the State filed companynter affidavit submitting therein that the investigating officers were authorised to investigate the case as provided by first proviso to Sub-section 1 of Section 5A of the 1947 Act. It was companytended that in view of the provisions of Section 30 2 of the 1988 Act read with Sections 6 and 24 of the General Clauses Act, the numberifications issued by the State of Punjab under the 1947 Act were still in force which empowered the Inspectors of the Police of the Vigilance Department to investigate the cases under the 1947 Act. The learned Judge, who disposed of the petitions for quashing the FIRs and the subsequent proceedings vide the judgment impugned in these appeals, first dealt with the problem of prevalent companyruption in society and described it as cancer eating the bone marrow of the society. He, however, found that the repeal of an Act amounted to its revocation, annulment and abrogation, the effect of which was that the repealed Act or Ordinance did number exist on the statute book. The only exception being the saving provisions in the repeal statute. Referring to Section 30 of the 1988 Act the learned Judge held It is manifestly clear that the legislature had the intention to bodily lift the provisions of Section 6 of the General Clauses Act, 1897, and incorporate the same in the Amending Act of 1988 and numberother provision of the General Clauses Act. If the legislature had intended to apply any other provision or whole of the General Clauses Act, 1897, it would have so said clearly instead of saying that section 6 only would apply or would have said numberhing in that regard and in that eventuality, whole of the Act of 1897 would have its application. It is trite law that even when a saving clause reserving the rights and liabilities under the repealed law is absent in a new enactment, the same will neither be material number decisive on the question of different intention because in such cases section 6 of the General Clauses Act will be attracted and rights and liabilities acquired, accrued under the repealed law will remain saved unless there is something to infer that legislature intended to destroy the rights and liabilities already accrued. It, therefore, appears clear that the legislature intended to apply section 6 only and number the whole of the Act. Regarding the companytinuity of the numberifications after the 1988 Act, the learned Judge observed These numberifications were issued under sub section 1 of Section 5-A of the Prevention of Corruption Act, 1947, and Inspector of Police serving in the Special Inquiry Agency in the Vigilance Department of the Punjab Government or who were to be posted in future to serve in the said agency were authorised to arrest and investigate the case for the companymission of the offence under the Act of 1947. The numberifications enure in respect of any investigation legal proceedings or remedy that may be instituted, companytinued or any such penalty, forfeiture or punishment that may be imposed under the Act of 1947, as if the repealing Act or Regulation had number been passed. These numberifications referred to above, were number expressly saved by saving provision companytained in Section 30 2 of the Act of 1988. These numberifications, therefore, would number enure or survive to govern any investigation done or legal proceedings instituted in respect of cases registered under the repealing Act, 1988, after it came into force w.e.f. 9th September, 1988. After holding that the investigation had number been companyducted by the officers as authorised under Section 17 1 of the 1988 Act, the proceedings against the respondents were quashed vide the judgment impugned. Mr.Inderbir Singh Alag, Advocate appearing for the appellant, companytended that the impugned judgment is number sustainable in view of the mandate of Section 30 of the 1988 Act and Section 6 read with Section 24 of the General Clauses Act. It is argued that as numberifications issued under Section 5A of the 1947 Act had survived the repeal of the State Act, there was numbernecessity of issuing any new numberification. There being numberinconsistency between Section 5A of the 1947 Act and Section 17 of the 1988 Act, the earlier numberifications are deemed to be in existence and Inspector of Police authorised to investigate the offences under the 1988 Act. Appearing for some of the respondents Mr.Ranjit Kumar, Senior Advocate companytended that in view of the change in the nature and scope of Prevention of Corruption Act as to its ambit and applicability, the penal statute requires to be strictly companystrued. As the repealing and saving Section 30 of the 1988 Act refers only to Section 6 of the General Clauses Act, the other provisions of the General Clauses Act cannot be relied upon for the purposes of ascertaining the life of the numberifications issued under the 1947 Act. It is submitted that what is saved by the repealed Act, are only the proceedings already having arisen under the repealed Act and numberhing more than that. According to him Section 24 of the General Clauses Act cannot be pressed into service for the purpose of deciding the effect of the repeal in the companytext of numberifications issued under 1947 Act. Mr.Manoj Swarup, learned companynsel appearing for some of the respondents companytended that the provisions made in two enactments being inconsistent, as is evident from the scheme of the Acts, sub-section 2 of Section 30 would number save the numberifications issued under the 1947 Act. He companytended that the Legislature intended number to apply any other provision of the General Clauses Act, as is evident from the mentioning of the application of Section 6 of the said Act only in sub-section 2 of Section 30 of the 1988 Act. Learned companynsel appearing for the other respondents made similar submissions to support the impugned judgment in these appeals. Realising that provisions made in the Indian Penal Code were number adequate to meet the exigencies of the time, an imperative need was felt to make a law to eradicate the evil of bribery and companyruption for which the 1947 Act was enacted. The said Act was amended twice by Criminal Law Amendment Act of 1952 and later in 1964. Ultimately the said Act was repealed by the 1988 Act being Act No.49 of 1988. The new Act has made the anti companyruption law more effective by widening its companyerage and by strengthening its provisions. Chapter IV deals with the investigation into cases under the Act and Section 17 provides Persons authorised to investigate. -- Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , numberpolice officer below the rank, -- a in the case of the Delhi Special Police Establishment, of an Inspector of Police b in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area numberified as such under sub-section 1 of section 8 of the Code of Criminal Procedure, 1973 2 of 1974 , of an Assistant Commissioner of Police c elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant Provided that if a police officer number below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant Provided further than an offence referred to in clause e of sub-section 1 of section 13 shall number be investigated without the order of a police officer number below the rank of a Superintendent of Police. Section 30 of the Act provides 30 Repeal and saving.-- 1 The Prevention of Corruption Act, 1947 2 of 1947 and the Criminal Law Amendment Act, 1952 46 of 1952 are hereby repealed. Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 10 of 1897 , anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is number inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the companyresponding provision of this Act. It is relevant, at this stage, to take numbere of the provisions of Section 5A of the 1947 Act which provided 5A. Investigation into cases under this Act - 1 Notwithstanding anything companytained in the Code of Criminal Procedure, 1898 5 of 1898 , numberpolice officer below the rank, -- a in the case of the Delhi Special Police Establishment, of an Inspector of Police b in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police c in the presidency-town of Bombay, of a Superintendent of Police and d elsewhere, of a Deputy Superintendent of Police, shall investigate any officer punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code 45 of 1860 or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant Provided that if a police officer number below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant Provided further that an offence referred to in clause e of sub-section 1 of section 5 shall number be investigated without the order of a police officer number below the rank of a Superintendent of Police. If, from information received or otherwise, a police officer has reason to suspect the companymission of an offence which he is empowered to investigate under sub-section 1 and companysiders that for the purpose of investigation or inquiry into such offence, it is necessary to inspect any bankers books, then, numberwithstanding anything companytained in any law for the time being in force, he may inspect any bankers books in so far as they relate to the accounts of the person suspected to have companymitted that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified companyies of the relevant entries therefrom, and the bank companycerned shall be bound to assist the police officer in the exercise of his powers under this sub-section Provided that numberpower under this sub-section in relation to the accounts of any person shall be exercised by a police officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police. Explanation.-- In this sub-section, the expressions bank and bankers books shall have the meaning assigned to them in the Bankers Books Evidence Act, 1891 18 of 1891 . For deciding the companytroversy it is also necessary to take numbere of the provisions of Sections 6 and 24 of the General Clauses Act which provide as under Effect of repeal. -- Where this Act, or any Central Act or Regulation made after the companymencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall number-- a revive anything number in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or c affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or d affect any penalty, forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had number been passed. Continuation of orders, etc., issued under enactments repeated and re-enacted - Where any Central Act or Regulation is, after the companymencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, numberification, order, scheme, rule, form or bye-law made or issued under the repealed Act or Regulation, shall so far as it is number inconsistent with the provisions re-enacted, companytinue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, numberification, order, scheme, rule form or bye-law made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a numberification under Section 5 or 5A of the Scheduled District Act, 1874 XIV of 1974 , or any like law, has been extended to any local area, has, by a subsequent numberification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and reenacted in such area or part within the meaning of this section. The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. The object of this Act is to shorten the language of Central Acts, to provide as far as possible, for uniformity of expression in Central Acts, by giving definition of series of terms in companymon use, to state explicitly certain companyvenient rules for the companystruction and interpretation of Central Acts, and to guard against slips and oversights by importing into every Act certain companymon form clauses, which otherwise ought to be inserted expressly in every Central Act. In other words the General Clauses Act is a part of every Central Act and has to be read in such Act unless specifically excluded. Even in cases where the provisions of the Act do number apply, companyrts in the companyntry have applied its principles keeping in mind the inconvenience that is likely to arise otherwise, particularly when the provision made in the Act are based upon the principles of equity, justice and good companyscience. The words anything duly done or suffered thereunder used in sub-clause b of Section 6 are often used by the Legislature in saving clause which is intended to provide that unless a different intention appears, the repeal of an Act would number affect anything duly done or suffered thereunder. This Court in Hasan Nurani Malak v. Assistant Charity Commissioner, Nagpur Ors. AIR 1967 SC 1742 has held that the object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law companytinues to govern the things done before a particular date from which the repeal of such a pre-existing law takes effect. In Universal Imports Agency v. Chief Controller of Imports and Exports 1961 1 SCR 305 AIR 1961 SC 41 this Court while companystruing the words things done held that a proper interpretation of the expression things done was companyprehensive enough to take in number only the things done but also the effect of the legal companysequence flowing therefrom. Section 24 of the General Clauses Act deals with the effect of repeal and re-enactment of an Act and the object of the section is to preserve the companytinuity of the numberifications, orders, schemes, rules or bye-laws made or issued under the repealed Act unless they are shown to be inconsistent with the provisions of the re-enacted statute. In Neel Niranjan Majumdar v. The State of West Bengal AIR 1972 SC 2066, the petitioner therein had challenged the order of his detention under sub-section 1 read with sub-section 3 of Section 3 of the West Bengal Prevention of Violent Activities Act, 1970. Sub-section 1 read with sub-section 3 of Section 3 authorised District Magistrate to direct detention of any person in respect of whom he was satisfied that such detention should be ordered with a view to prevent him from acting prejudicially to the security of the State or the maintenance of public order. Sub-section 2 of Section 3 companytained a special definition of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order to mean the acts enumerated in clauses a to e thereof. Clause d provided d companymitting, or instigating any person to companymit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the companymission of such offence disturbs, or is likely to disturb, public order. In the grounds of detention it was mentioned that the detenue indulged in activities including causing injuries with a sword. Under Section 2 1 c of the Arms Act, the word arms was defined to mean articles of any description designed or adapted as weapons for offence or defence which included firearms, sharp-edged and other deadly weapons. Section 4 of the Arms Act empowered the Central Government, if it was of opinion that having regard to the circumstances prevailing in any area it was necessary or expedient in the public interest that acquisition, possession or carrying of arms, other than firearms, should also be regulated, it may by numberification direct that the Section shall apply to the area specified in such a numberification and thereupon numberperson shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that numberification, except under a licence issued under the provisions of the Act or the rules made thereunder. It was found that numbernotification, as companytemplated by Section 4 of 1959 Act had been issued. But in 1923 such a numberification was issued under Section 15 of the earlier Indian Arms Act of 1878 which in terms was similar to Section 4 of the 1959 Act. The question posed before the companyrt was whether Act No.XI of 1878 having been repealed, the said numberification issued under Section 15 thereof can still be said to be operative. Dealing with such a situation this Court held Section 6 b of the General Clauses Act, however, provides that where any Central Act or regulation made after the companymencement of the Act repeals any earlier enactment, then, unless a different intention appears, such repeal shall number affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder. Section 24 next provides that where any Central Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any numberification issued under such repealed Act shall, so far as it is inconsistent with the provisions re-enacted, companytinue in force and be deemed to have been made under the provisions so re-enacted unless it is superseded by any numberification or order issued under the provisions so re-enacted. The new Act numberhere companytains an intention to the companytrary signifying that the operation of the repealed Act or of a numberification issued thereunder was number to companytinue. Further, the new Act re-enacts the provisions of the earlier Act, and Section 4 in particular, as already stated, has provisions practically identical to those of Section 15 of the earlier Act. The companybined effect of Sections 6 and 24 of the General Clauses Act is that the said numberification of 1923 issued under Section 15 of the Act of 1878 number only companytinued to operate but has to be deemed to have been enacted under the new Act. In Central Bureau of Investigation v. Subodh Kumar Dutta Anr. 1997 10 SCC 567 the companynizance of the offence had been taken by Special Court companystituted under the West Bengal Special Courts Act. After companynizance had been taken, the Prevention of Corruption Act, 1947 came to be repealed by the Prevention of Corruption Act, 1988 w.e.f. 9.9.1988. The accused filed a Criminal Revision Petition in the High Court seeking quashing of the proceedings in the case pending against him before the Special Court in which the principal ground raised was the violation of fundamental right of the accused to speedy trial. During the arguments the accused was permitted to raise a plea that the Special Court, trying the bribery case, had numberjurisdiction to take companynizance of the offence under the Prevention of Corruption Act, 1947 as that companyrt had number been companystituted pursuant to Section 3 of the Prevention of Corruption Act, 1988 which had repealed the 1947 Act. Taking numbere of Section 26 of the 1988 Act, the Single Judge of the High Court opined that the companynizance taken by the Special Court on 9.7.1988 under the 1947 Act was number saved and thus quashed the proceedings. Interpreting sub-section 2 of Section 30 of the 1988 Act, this Court held that a bare look at the provisions of subsection 2 of Section 30 shows that anything done or any action taken or purported to have been taken under or in pursuance of the Prevention of Corruption Act, 1947 shall be deemed to have been taken under or in pursuance of the companyresponding provision of the Prevention of Corruption Act, 1988. In view of this specific provision, the companynizance of the offence taken by the Special Court stood saved. In Nar Bahadur Bhandari Anr. v. State of Sikkim Others 1998 5 SCC 39 it was held that sub-section 2 of Section 30 of the 1988 Act, on the one hand ensures that the application of Section 6 of the General Clauses Act is number prejudiced, on the other it expressed a different intention as companytemplated by the said section. The last part of subsection introduced a legal fiction whereby anything done or action taken under or in pursuance of 1947 Act shall be deemed to have been done or taken under or in pursuance of the companyresponding provision of the 1988 Act. The fiction is to the effect that the 1988 Act had companye into force when such thing was done or action was taken. In Kolhapur Canesugar Works Ltd. Anr v. Union of India Ors. 2000 2 SCC 356 this Court held that at companymon law the numbermal act of repealing the statute or deleting the provision is to obliterate it from the statute book as companypletely as if it had never been passed, and the statute must be companysidered as a law that never existed. To this rule an exception is engrafted by the provisions of Section 6 1 . If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has number been granted before the omission goes into, it cannot be granted afterwards. Savings of the nature companytained in Section 6 in Special Act may modify the position. There is numberdispute that when an Act is repealed but re-enacted, it is almost inevitable that there will be some time lag between the re-enacted statute companying into force and regulations being framed under the re-enacted statute. In Chief Inspector of Mines Anr., etc. vs. Karam Chand Thapar, etc. AIR 1961 SC 838 this Court observed that However, efficient the rule-making authority may be it is impossible to avoid some hiatus between the companying into force of the re-enacted statute and the simultaneous repeal of the old Act and the making of regulations. Often, the time lag would be companysiderable. It is companyceivable that any legislature, in providing that regulations made under its statute will have effect as if enacted in the Act, companyld have intended by those words to say that if ever the Act is repealed and reenacted, as is more than likely to happen sooner or later , the regulations will have numberexistence for the purpose of the re-enacted statute, and thus the re-enacted statute, for some time at least, will be in many respects, a dead letter. The answer must be in the negative. Whatever the purpose be which induced the draftsmen to adopt this legislative form as regards the rules and regulations that they will have effect as if enacted in the Act, it will be strange indeed if the result of the language used, be that by becoming part of the Act, they would stand repealed, when the Act is repealed. One can be certain that that companyld number have been the intention of the legislature. It is satisfactory that the words used do number produce that result. We do number find any force in the submission of the learned companynsel appearing for the respondents that as reference made in Sub-section 2 of Section 30 of 1988 Act is only to Section 6 of General Clauses Act, the other provisions of the said Act are number applicable for the purposes of deciding the companytroversy with respect to the numberifications issued under the 1947 Act. We are further of the opinion that the High Court companymitted a mistake of law by holding that as numberifications have number expressly been saved by Section 30 of the Act, those would number enure or survive to govern any investigation done or legal proceeding instituted in respect of the cases registered under the 1988 Act. There is numberdispute that 1988 Act is both repealing and re-enacting the law relating to prevention of companyruption to which the provisions of Section 24 of the General Clauses Act are specifically applicable. It appears that as Section 6 of the General Clauses Act applies to repealed enactments, the Legislature in its wisdom thought it proper to make the same specifically applicable in 1988 Act also which is a repealed and re-enacted statute. Reference to Section 6 of General Clauses Act in sub-section 1 of Section 30 has been made to avoid any companyfusion or misunderstanding regarding the effect of repeal with regard to actions taken under the repealed Act. If the Legislature had intended number to apply the provisions of Section 24 of the General Clauses Act to the 1988 Act, it would have specifically so provided under the enacted law. In the light of the fact that Section 24 of the General Clauses Act is specifically applicable to repealing and re-enacting statute, its exclusion has to be specific and cannot be inferred by twisting the language of the enactments. Accepting the companytention of the learned companynsel for the respondents would render the provisions of 1988 Act redundant inasmuch as appointments, numberifications, orders, schemes, rules, bylaws, made or issued under the repealed Act would be deemed to be number-existent making impossible the working of the reenacted law impossible. The provisions of the 1988 Act are required to be understood and interpreted in the light of the provisions of the General Clauses Act including Sections 6 and 24 thereof. There is numbersubstance in the arguments of the learned companynsel appearing for the respondents that the provision made in two enactments were inconsistent and sub-section 2 of Section 30 would number save the numberifications issued under the 1947 Act. The companysistency, referred to in sub-section 2 of Section 30 is with respect to acts done in pursuance of the Repealed Act and thus restricted it to such provision of the Acts which companye for interpretation of the companyrt and number the whole of the scheme of the enactment. It has been companyceded before us that there is numberinconsistency between Section 5A of the 1947 Act and Section 17 of the 1988 Act and provisions of General Clauses Act would be applicable and with the aid of sub-section 2 of Section 30 anything done or any action taken or purported to have been done or taken in pursuance of 1947 Act be deemed to have been done or taken under or in pursuance of the companyresponding provision of 1988 Act. For that purpose, the 1988 Act, by fiction, shall be deemed to have been in force at the time when the aforesaid numberifications were issued under the then prevalent companyresponding law. Otherwise also there does number appear any inconsistency between the two enactments except that the scope and field companyered by 1988 Act has been widened and enlarged. Both the enactments deal with the same subject matter, i.e. companyruption amongst the public servants and make provision to deal with such a menace. To justify the impugned judgment and to impress upon us the inconsistency in the two provisions, the learned companynsel appearing for the respondents referred to some companymunications included in the paperbook from pages 109 to It is submitted that the aforesaid companyrespondence in the form of Annexure P-2 to P-5 showed that the Government had applied its mind under the re-enacted law and took a companyscious decision that the Inspectors of Police were number companypetent to investigate the offences punishable under the new Act and that only officers above the rank of Dy. Superintendent of Police should investigate the cases under the Act. Reference to the aforesaid letters is based upon misconception. In numbere of the letters the Government is shown to have taken any decision as argued. The aforesaid documents are the letters exchanged between different officials of the Police Department of the State of Punjab which are number referable to any specific decision of the State Government. In the Memo of Appeal and the Rejoinder Affidavit filed on behalf of the State it is specifically submitted that the proceedings of the high level meeting presided over by the Chief Secretary, referred to by the respondents as decision of the Government, is internal companymunication between different wings of the Government and cannot be made basis to companyclude that State Government had neither any intention to keep alive the numberifications under the Old Act of 1947 number have any intention to empower the Inspector of Police in the Vigilance Department to investigate the afresh cases. It is also relevant that as per the Old Act, since there were numberifications which were valid under the New Act by virtue of Section 6 and 24 of General Clauses Act unless these were formally rescinded, the same hold good and the numberings on the file to any effect cannot be made basis for striking down those numberifications. It is, therefore, evident that the numberifications issued by the Government of Punjab, in exercise of the powers companyferred under Section 5A of the 1947 Act, empowering and authorising the Inspectors of Police posted in Special Inquiry Agency of the Vigilance Department, Govt. of Punjab to investigate the cases registered under the said Act were saved under the saving provision of the re-enacted 1988 Act.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1250 of 1968. From the Judgment and Order dated 17-4-1967 of the Calcutta High Court in Appeal from Original Decree No. 255/69 . V. Patel, H.K. Puri, S.K. Gupta, P. Dayal and M.C. Dhingra for the Appellant. K. Chatterjee, and G.S. Chatterjee, for the Respondent. The Judgment of the Court was delivered by. JASWANT SINGH, J.---This appeal by certificate granted under Article 133 1 a and c of the Constitution which is directed against the judgment and decree dated March 25, 1968 of the High Court of Calcutta in Appeal No. 255 of 1963 raises important questions relating to the interpretation of certain provisions of the Bihar Land Reforms Act, 1950 Act XXX of 1950 hereinafter referred to as the B.L.R. Act as also of the Mining Leases Modification of Terms Rules, 1956 providing for the modification and alteration of terms and companyditions of the mining leases granted prior to the companymencement of the Mines and Minerals Regulation and Development Act, 1948 Act 53 of 1948 hereinafter referred to as the 1948 Act and of the Mines and Minerals Regulation and Development Act, 1957 Act 67 of 1957 hereinafter referred to as the 1957 Act which replaced the 1948 Act on June 1, 1958. The facts and circumstances leading to this appeal are By an indenture of. lease dated July 31, 1927 hereinafter referred to as the head lease , Raja Bishambharnath Sahi hereinafter referred to as the Raja who was the sole proprietor of large tracts of land known as the Sonepura estate in Paragana Rohtas in the district of Shahbad in Bihar demised certain blocks of land situate in villages Jaintipur, Nimhath Deodand and Dhanwanti, District Shahbad together with quarries of lime stone known as Chunhatta Lime Stone Quarries lying thereunder for a period of 40 years companymencing from 1st day of August, 1927, and ending on 31st day of July, 1967, with an option to companytinue for a further period of 25 years, in companysideration of a salami and fine of Rs. 8,200/- unto Karunaranjan Dutt and Jugalchandra Dutt hereinafter referred to as Dutts . By the said indenture, the head lessees inter alia undertook to pay to the Raja during the first 15 years of the said period of 40 years of the lease i.e., from the 1st day of August, 1927, to 31st day of July, 1942, royalty at the rate of annas -/10/- ten ----62 paise for every 100 cubic feet i.e., roughly at 15-1/2 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises and for the remaining 25 years of the lease i.e. from the 1st day of August, 1942, to 31st day of July, 1967, royalty at the rate of annas -/15/- fifteen 94 paise instead of annas -/10/- ten for every 100 cubic feet i.e. roughly at 24 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises. The aforesaid royalty was made payable quarterly i.e. after every three months on the fixed dates specified in the indenture of lease. The head lessees also undertook to pay yearly rent of annas -/6/ sux per acre subject to the maximum of Rs. 100/- for so much of the surface land as was to be entered upon, used or occupied by them for the purpose of placing, stocking and beeping stones or waste materials and rubbish etc. The lease deed further provided as follows .-- That the LESSEES shall be at liberty ,red companypetent without obtaining any further companysent of the LESSOR to assign and transfer this lease or sublet or part with the possession of the demised premises or any part thereof to any person, firm or companypany whether incorporated or otherwise and numbermutation fee or Nazarana or premium shall be charged by the LES- SOR in case of such transfer or subletting for the first time, but in case of subsequent transfer or sub-letting a fee of Rupees five hundred 500/- shall be payable to the LESSOR for each such occasion. If the rents and royalties hereby reserved or any part thereof or any other moneys hereunder payable by the LESSEES to the LESSOR shall remain unpaid for three months after the same shall become due and payable the LESSEES shall pay interest thereon at the rate of twelve 12 per cent per annum calculated from the due date until payment. If the same shall remain unpaid for three years companysecutively or if there be any breach of any of the companyveyants and agreements herein companytained and on the part of the LESSEE to be performed and observed then this lease shall be liable to be forfeited under an-order of a companypetent companyrt besides any other relief hereunder and under the law then prevailing. On October 12, 1928, the head lessees i.e. Dutts executed a sublease of the aforesaid blocks of land and quarries of lime stone for the residue of the period of the aforesaid indenture of lease dated July, 1927 except the last day thereof for a companysideration of Rs. 5,000/in favour of the appellant. The appellant undertook to pay to Dutts the same royalty and rent as were payable by Dutts to the Raja during the period of the aforesaid head lease in respect of lime stone quarried except for ballast or building purposes . In addition, the appellant undertook to pay to the head lessees during residue of the first 15 years of the said period of 40 years royalty of annas -/16/- sixteen for every 100 cubic feet of solid lime stone quarried, raised, got or used or taken out from the demised premises and for the remaining 25 years thereafter of the said period for each such quantity, royalty .of annas -/11/- eleven . The sub-lease gave option to the appellant to make payment to the head lessor directly of royalties in terms of the aforesaid head lease whether the head lessees were to make default or number in making payment of the same. On February 15, 1929, Dutts transferred by a deed of assignment all their rights, title and interest under and by virtue of the aforesaid indenture of head lease and the sub-lease dated October 12, 1928 to the respondent. The appellant had due numberice of the said assignment and accepted the respondent as its lessor in place of Dutts. On September 8, 1948, the Central Legislature passed the 1948 Act under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935. Section 5 of the Act empowered the Central Government to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Section 7 of the Act empowered the Central Government to make rules for the purpose of modifying or altering the terms and companyditions of any existing mining lease granted prior to the companymencement of the Act, so as to bring such lease into companyformity with the rules made under section 5. In exercise of the powers companyferred on it by section 5 of the Act, the Central Government made the Mineral Concession Rules, 1949. Both the 1948 Act and the Mineral Concession Rules, 1949, came into force on October 25, 1949. The provisions of the Mineral Concession Rules, 1949, did number apply to leases or sub-leases granted prior to October 25, 1949. On September 25, 1950, the B.L.R. Act came into force. This Act as apparent from its preamble was enacted for the purpose transference to the State of the interests of the proprietors and tenure holders in land and of mortgagees and lessees of such interests in, eluding interest in mines and mineral etc. Sections 3 and 3A of the B.L.R. Act which dealt with vesting of estates or tenures in the State provided as follows -- 3. 1 The State Government may from time to time, by numberification declare that the estates or tenures of a proprietor or tenure-holder, specified in the numberification have passed to and become vested in the State A. 1 Without prejudice to the provision in the last preceding section, the State Government may, at any time, by numberification, declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State. It shall be lawful for the State Government, if it so thinks fit, to issue, from time to time, a numberification of the nature mentioned in sub-section 1 in respect of the intermediary interests situate in a part of the State specified in the numberification and, on the publication of such numberification, all intermediary interests situate in such part of the State shall have passed to and become vested in the State On November 14, 1951, the estate of Sonepura belonging to the Raja passed to and became vested in the State of Bihar by virtue of numberification No. 83 IR ZAN dated November 6, 1951 issued by the Governor of Bihar in exercise of the power companyferred on him by sub-section 1 of the above quoted section 3 of the B.L.R. Act. On January 1, 1956, the Governor of Bihar issued numberification No. EVII-102/56-ILR reading as under No. EVII-IO2-56-ILR. Whereas a proclamation announcing the .intention of the State Government to take over all the intermediary interest in the district of Shahbad Patna, Saran, Muzafferpur, Bhagal-Sonthal Paraganas, Ranchi, Singhbhum Manbhum and excluding Manbhum Sadar Sub-Division was published under numberification No. 4381 LR dated the 18th August, 1955, as required by subsection 1 of section 3 B of Bihar Land Reforms Act, 1950 Bihar Act XXX of 1950 . Now, therefore, in exercise of the powers companyferred by sub-section 2 of section 3A of the said Act, the Government of Bihar is pleased to declare that all such intermediary interests in the said districts excluding Manbhum Sadar sub-Division have passed to and become vested in the State with effect from the date of this Notification. On September 4, 1956, the Government of India made rules under section 7 of the 1948 Act for modifying or altering the terms and companyditions of the existing leases, being Mining Leases Modification of Terms Rules, 1956. Clause c of rule 2 of the Rules defined existing mining lease as meaning a mining lease granted before October 25, 1949 and subsisting at the companymencement of the 1956 Rules but number including any such lease in respect of i natural gas, ii petroleum iii companyl, or any minor mineral within the meaning of clause c of section 3 of the Act. The 1948 Act was replaced by the 1957 Act which came into force on June 1, 1958. Section 9 of the 1957 Act provided as follows -- Royalties in respect of mining leases -- 1 The holder of a mining lease granted before the companymencement of this Act shall, numberwithstanding anything companytained in the instrument of lease or in any law in force at such companymencement, pay royalty in respect of any mineral removed by him from the leased area after such companymencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. The holder of a mining lease granted on or after the companymencement of this Act shall pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. The Central Government may, by numberification in the official gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the numberification Provided that the Central Government shall number-- a fix the rate of royalty in respect of any mineral so as to exceed twenty per cent of the sale price of ,the mineral at the pits head, or b enhance the rate of royalty in respect of any mineral more than once during any period of four years. This section was amended in 1972 by Act No. 56 of 1972. The amended section in so far as it is relevant for our purpose runs as follows -- 9. 1 The holder of a mining lease granted before the companymencement of this Act shall, numberwithstanding anything companytained in the instrument of lease or in any law in force at such companymencement, pay royalty in respect of any mineral removed or companysumed by him or by his agent, manager, employee, companytractor or sub-lessee from the leased area after such companymencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. The holder of a mining lease granted on or after the companymencement of this Act shall pay royalty in respect of any mineral removed or companysumed by him or by his agent, manager employee, companytractor or sub-lessee from the leased area at the rate for the time being specified in the, Second Schedule in respect of that mineral. 2A The Central Government may, by numberification in the official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the numberification Provided that the Central Government shall number enhance the rate of royalty in respect of any mineral more than once during any period of four years. Section 29 of the Act provided for the effective companytinuance of the rules made or purporting to have been made under the 1948 Act in so far as they. related to matters provided for in the former Act and were number inconsistent therewith. By the Bihar Amendment Ordinance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms Amendment Act Bihar Act 4 of 1965 , the L.R. Act was amended by introduction of section 10-A which runs as follows -- 10-A. Vesting of interest of lessee of mines or minerals which is Subject to a sub-lease.- 1 The interest of every lessee of mines or minerals which is subject to a sub-lease shall, with effect from such date as may be numberified in this behalf by the State Government in the Official Gazette, vest in the State and thereafter the sub-lessee whose lease is number subject to any further sub-lease shall hold his lease directly under the State Government and the provisions of subsections 2 and 4 of section 10 shall, mutatis mutandis apply to his lease. No .sub-lessee of mines or minerals holding under a lessee whose interest vests in the State Government under sub-section 1 shah be entitled to claim any damages from his lessor on the ground that the terms of the lease in respect of the mines or minerals have become incapable of fulfilment by the operation of this section. Purporting to act under the Mining Leases Modification of Terns Rules, 1956, the Controller of Mining Leases, an officer appointed by the Central Government for the purpose of implementing the rules, by his order dated August 8, 1959 enhanced the royalties payable under the aforesaid lease dated July 31, 1927 to 37 Naya Paise per ton. In exercise of its option under the sub-lease dated October 12,. 1928, the appellant paid rent and royalty payable by the head lessee in respect of the aforesaid Chunhatta quarries under the aforesaid indenture of lease dated July 31, 1927, directly to the. Raja upto the date immediately preceding the date of the aforesaid vesting of the interest of the Raja in the State of Bihar under the L.R. Act. After the date of the vesting of the interest of the Raja in the State of Bihar the appellant started paying directly to the State the said royalty at the rate of 24 paise per ton. The appellant also companytinued paying additional royalty at the rate of 17 paise per ton to the respondent in terms of the sub-lease dated October 12, 1928 but stopped doing so from July 1, 1958. The respondent thereupon brought a suit on JUly 10, 1961 being suit No. 1104 of 1961 on the original side of the High Court at Calcutta claiming a decree for 1 Rs. 25,181.27 as arrears of royalty from July 1, 1958, to August 7, 1959 the date immediately preceding the date on which the Controller enhanced the royalty payable to the State to 37 paise 2 Rs. 32,223.64 as arrears of royalty at the rate of annas -/11/- eleven from August 8, 1959 to March 31, 1961 3 Rs. 1,444.00 on account of deficit payment for the overdue period in respect of royalty for the quarters ending June 30, 1957, September 30, 1957, December 31, 1957 and June 30, 1958. It also claimed interest on the aforesaid amounts at the rate of 12 per cent per annum. The respondent based his claim on the ground that numberwithstanding the issues of the aforesaid numberification under section 3 of the B.L.R. Act, its interest as a lessee under the lease which companytinued to subsist did number vest in the State of Bihar and it became and still companytinued to be a lessee under that State fro.m the date of the aforesaid numberification under section 3 of the L.R. Act The appellant companytested the suit averring inter alia that while the position of Dutts in respect of the. mines under the aforesaid blocks of land was that of the tenure holders under the Raja, its own position was that of the lessee in possession and that from November 14, 1951the date of vesting of the Sonepura estate in the State of Bihar--the proprietary right of the Raja in the aforesaid mine ceased to exist and the respondent became an intermediary in respect thereof directly Under the State of Bihar from the said date and the appellant companytinued to be a lessee in possession under the respondent. The appellant denied that the interest of the respondent in the mine was that of the lessee or that from the date of the aforesaid numberification under section 3 of the B.L.R. Act, the respondent became a lessee of the said mine directly under the State and averred that it companytinued to be the lessee in possession of the said mine under the respondent as before. The appellant further averred that in any event the respondents right to receive additional royalty from the former in terms of the aforesaid sub-lease dated October 12, 1928 ceased to exist from January 1, 1956, when the interest of the latter as tenure holder in the Chunhatta Lime Stone Quarries came to vest in the State. The appellant Further averred that due to ignorance of the publication of the numberification dated January 1, 1956 and bonafide mistake arising therefrom,. it companytinued paying additional royalty to the respondent in terms of the sub-lease dated October 12, 1928 for the period beginning from. January 1, 1956, to the end of June, 1958, which the latter had number right to receive and was refundable to it with interest thereon at the rate of six per cent. The appellant alternatively pleaded that assuming without admitting that the interest of the respondent in the Chunhatta quarries did number vest in the State of Bihar either by numberification dated November 14, 1951, or under numberification dated January 1, 1956, and that the respondent companytinued to be a lessee under the lease dated July 31, 1927, even then the appellant was, under the sub-lease dated October 12, 1928, liable to pay royalty only at the rate of annas -/15/- fifteen per 100 cubic feet as provided in the lease dated July 31, 1927, and an additional royalty of annas /11/ eleven per 100 cubic feet aggregating Rs. 1/10/- per 100 cubic feet equal to 24 Naya Paise plus 17 Naya Paise per ton calculating 100 cubic feet as equivalent to 4 tons for the period companymencing from August 1, 1942 to May 31, 1958 that the respondent being a holder of the mining lease within the meaning of section 9 of the 1957 Act was liable to pay royalty at the rate of 37 Naya Paise per ton in respect of the minerals removed from the said quarries from June 1, 1958, and since payment to the tune of Rs. 61,684.40 on that account upto March 31, 1961 had been made by the appellant as an agent of the respondent to safeguard its position and enjoyment of the leasehold property, the former was entitled to be reimbursed to that extent. In companyclusion, the appellant aimed to set off the aforesaid sum of Rs. 61,684.40 and subsequent payments of royalty against the royalty that might be payable to the respondent under the sub-lease dated October 12, 1928, in respect of the minerals removed from the leased quarries from June 1, 1958 upto March 31, 1961 and thereafter. The appellant, however, admitted that it had paid the additional royalty to the respondent as stipulated in the sublease dated October 12, 1928, upto June 30, 1958 only. By his judgment dated July 23, 1963, Sankar Prasad Mitra, J. of the High Court of Calcutta to whom the suit had been assigned passed a decree in favour of the respondent to the extent of Rs. 47,944.10 as the principal sum, and Rs. 8,887.90 on account of interest, holding inter alfa that the respondent was number an intermediary or tenure holder in respect of the estate in suit under B.L.R. Act and its interest did number vest in ,the State of Bihar as a result of the aforesaid numberification dated November 6, 1951 or the numberification dated January 1, 1956 that the holder .of a mining. lease as envisaged by the B.L.R. Act companyld be a lessee or a sub-lessee that it was the lessee or the sub-lessee who removed the minerals from the mine that had to pay royalty at the rate specified in the Second Schedule to the 1957 Act and as it was the appellant and number the respondent that removed the minerals from the quarries during the relevant period, the provisions of section 9 of the 1957 Act companyld number be invoked for realization of royalties from the latter and that if the appellant had paid any sum in excess of the sum stipulated in the indenture of lease dated July 31, 1927, it did so entirely at its own choice and risk The learned Single Judge further held that section 69 of the Contract Act had numberapplication to the facts of the present case. The learned Judge, however, disallowed the claim of the respondent so far as the item of Rs. 1144/- was companycerned. Aggrieved by this judgment and decree, the appellant preferred an ,appeal before a Division Bench of the High Court which proved abortive. While affirming the findings of the Single Judge, the Division Bench held that the interest of the respondent did number vest in the State Government at the material time and the appellant companytinued to be sublessee under the respondent bound by the terms of the sub-lease and that the liability to pay royalty to the State at 37 paise per ton from the date of companying into force of the 1957 Act fell on the appellant. Dissatisfied with the judgment and decree of the Division Bench of the High Court, the appellant has, as already stated, companye up in appeal to this Court. Appearing in support of the appeal, Mr. Patel has advanced two companytentions. He has in the first instance invited our attention to the definitions of intermediary, intermediary interest lease, tenure and tenureholder companytained in clauses jj , jjj , 1 , q and r respectively of section 2, as also sections 3, 3A, 4 and 9 of the B.L.R. Act and stressed that as the respondent was merely a tenure holder and all his rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor of the suit land i.e. the Raja with the companying into force of Notification No. 83 IR ZAN supra on November 14, 1951, and it was the appellant who being a sub-lessee stepped in as a direct lessee of the mine in question under the State, the respondent was number entitled to claim with effect from November 14, 1951, the additional royalty stipulated in the sub-lease dated October 12, 1928. He has further urged that assuming that the respondent enjoyed the status of a head lessee even then, its right, title and interest as such having become extinct and vested absolutely in the State without the encumbrance of the lease at least from January 1, 1956 the date of Notification No. EVII-102/56-ILR supra , it companyld number claim the said additional royalty after December 31, 1955. These companytentions which appear to be based upon a misconception of the true legal position cannot be accepted. The respondent companyld number be said to be a tenure holder as companytemplated by the aforesaid section 2 r of the B.L.R. Act as he had neither acquired from the Raja by virtue of the lease dated July 31, 1927 a right to hold the land mentioned therein for the purpose of companylecting rent number a right to hold the land for bringing it under cultivation by establishing .tenants on it. The right of the respondent as a head lessee of the mines and minerals also did number cease and the appellant did number acquire the status of the lessee as companytended by Mr. Patel. The companysequences of vesting of an estate or tenure in the State are set out in section 4 a of the B.L.R. Act. According to this provision, on the publication of the numberification under sub-section 1 of section 3 or subsection 1 or 2 of section 3A of the B.L.R. Act, the estate or tenure mentioned in the numberification including the interests of the proprietor or the tenure holder companyprised in such estate or tenure and his interest in all sub-soil including any right in mines and minerals inclusive of such right of a lessee of mines and minerals companyprised in such estate or tenure vests absolutely in the State free from all encumbrances and such proprietor or tenure holder has to cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions ,of the Act. The last words of section 4 a of the B.L.R. Act viz. other than the interests expressly saved by or under the provisions of the Act are pregnant with the meaning. They unequivocally show that those interests which are expressly saved by or under the provisions of the Act are number affected or impaired by the aforesaid numberifications. Now according to section 10 of the B.L.R. Act which itself is in the nature of a number-obstante provision overriding other provisions of the Act, every lease of mines and minerals companyprised in the numberified estate or tenure or any part thereof which may be subsisting immediately before the date of vesting has to be treated with effect from the date of vesting as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain .possession of the leasehold property for that period. In other words, in place of every companytractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure, a statutory lease on practically identical terms and companyditions companyes into being. Thus the companybined reading of section 4 a and section 10 of the B.L.R. Act leaves numberroom for doubt that the interests of the head lessee were left unaffected by the aforesaid numberifications to the extent indicated above. This view receives support from a catena of decisions of this Court where this position has been fully recognised and affirmed. See Bihar Mines Ltd. v. Union of India 1 Chhatu Ram Horil Ram Private Ltd. v. State of Bihar Anr. 2 M s. Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee Ors. a and State Of Bihar Anr. etc. v. Khas Karanpura Collieries Ltd. 4 . The insertion of section 10-A in the B.L.R. Act by the Bihar Amendment Ordinance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms Amendment Act Bihar Act 4 of 1965 also indicates that the law as it obtained prior to the aforesaid amendment was number intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals companyprised in the estate or tenure or part thereof which subsisted immediately before the vesting of a numberified estate or tenure. We must here deal with what has been tried to be impressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. The companynsel has strongly urged that since it is number strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was introduced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section. We also find ourselves unable to accept this companytention and to disregard the well settled canon 1 1967 1 S.C.R. 707. 2 1968 2 S.C.R. 881 A.I.R. 1969 S.C. 177. 3 1973 3 S.C.R. 1 . 4 1977 1 S.C.R. 157. that sometimes light may be thrown upon the meaning of an Act by taking into companysideration parliamentary expositions as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to be followed where, as in the instant case, a particular companystruction of the earlier Act will render the later incorporated Act ineffectual, or otiose or inept. See Krikness John Hudson Co. 1 . This view also receives support from the decision of this Court in Yogendra Nath Naskar C.I.T. Calcutta where approving the authoritative pronouncement in Cape Brandy Syndicate v. I.R.C. 3 that the subsequent legislation may be looked at in order to see the proper companystruction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act I.T. Act, 1922 even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It follows from the above discussion that the estate companyprised in the head lease in the instant case which was assigned to the respondent numberionally stood leased by the State from the date of vesting to the holder of the subsisting lease for the remainder of the term of the lease and the respondent became entitled to retain possession of the leasehold property. The first companytention of Mr. Patel is, therefore, repelled. Mr. Patel has next companytended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases Modification of Terms Rules, 1956, which companytinued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61,684.40 which was paid by him as an agent of the respondent. This companytention has to be examined with reference to two periods viz. i from July 1, 1958 to August 7, 1959, and ii August 8, 1959 to March 31, 1961. It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty. payable to the State, ,it companytinued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise. No question of reimbursement for this period can, therefore, arise. The position, however, with regard to the second period from August 8, 1959, to March 31, 1961,.is number free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases Modification of Terms Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act. Whereas according to companynsel for the appellant, it is the respondent which being the holder of lease as companytemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 1 19551 A.C. 696 H.L. 2 1969 1 S.C.C. 555. 1969 3 S.C.R. 742. 3 1921 2 K.B. 403. Act, according to companynsel for the respondent, as the expression mining lease used in section 9 of the 1957 Act has been defined in section 3 c of the Act as including a sub-lease and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant. There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. v. Union of India supra and M s Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee Ors. supra where it was unequivocally laid down that a statutory lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and number being an existing lease, it companyld number be modified and when the head lease number being an existing mining lease companyld number be modified, the sub-lease companyld also number be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government. In view, however, of the fact that neither the Union of India number the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agreement of the parties here.to, we do number companysider ourselves called upon to resolve the companyflicting companytentions advanced before us by companynsel for the parties. For the purpose of this appeal, it would suffice to observe that in view of Exhibit L reproduced at pages 280 to 282 of the Paper Book , the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re-imbursed by the respondent cannot be companyntenanced. The second companytention raised by Mr. Patel also, therefore, fails. In the result the appeal fails and is dismissed. In the peculiar circumstances of the case, the parties are left to pay and bear their own companyts of the appeal.

CRIMINAL APPEAL NO. 243 OF 2007 Sathasivam, J. This appeal has been preferred by the appellant being aggrieved by the judgment of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 2339 of 2004 dated 11.10.2006 reversing the order of the acquittal passed by the II Addl. District and Sessions Judge FTC , Nizamabad in Sessions Case No.314 of 1998 companyvicting and sentencing him to undergo life imprisonment. The case of the prosecution is briefly stated hereunder- The appellant herein was the sole accused in Sessions Case No. 314 of 1998 on the file of II Addl. District and Sessions Judge FTC , Nizamabad. On 24.01.1997, at about 11.00 a.m., the accused caused the death of his wife - Vanga Vimala by throttling her neck and in order to screen the said offence, hanged her dead body to the ceiling fan. The further charge was that the accused was harassing the deceased for dowry. The father of the deceased was examined as PW 1 and PW 2 is wife of PW 1. The deceased was given in marriage to the accused one year prior to the date of incident. The accused and the prosecution witnesses are residents of Gajulapet village. PWs 3 to 6 who are all residents of the same village deposed about the quarrel between the deceased and the accused regarding dowry and other matters. The offence took place on 24.01.1997 at about 11.00 a.m. After companying to know the incident, PW 1 rushed to the house of the accused and found the deceased her daughter hanging to the ceiling fan with a new saree. He made a companyplaint to the police Ex. P-1 based on which a crime was registered. Based on the companyplaint of PW 1, the police took up investigation, numbered the scene of offence, companyducted inquest over the dead body of the deceased, sent the dead body for post-mortem examination, examined the witnesses and recorded their statements. The accused was arrested on 03.02.1997 and after receipt of the final opinion from the doctor, who companyducted post-mortem examination and after companypletion of the investigation, the police laid the charge sheet. The prosecution, in order to prove the guilt of the accused, examined as many as PWs 1 to 14 and marked Ex. P1 to P14. No oral or documentary evidence was adduced on the defence side. The learned Sessions Judge, by judgment dated 25.04.2003 after finding that the doctor who companyducted post-mortem cannot decide preliminarily that the death was suicidal or homicidal and the prosecution failed to establish that the accused himself is companynected with the death of the deceased, acquitted the accused under Section 235 1 Cr.P.C. for the offence under Sections 302, 201 or 304B IPC. Questioning the companyrectness of the acquittal of the trial Court, the State through its Public Prosecutor filed Criminal Appeal No. 2339 of 2004 before the Andhra Pradesh High Court. The Division Bench, by the impugned order dated 11.10.2006, after accepting the case of the prosecution and companysidering the entire circumstances and finding that the prosecution has established the guilt for offence under Section 302 beyond reasonable doubt sentenced the accused to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for 6 months. Challenging the said order of the Division Bench, the accused has preferred the present appeal before this Court. We heard Mr. I. Venkatnarayana, learned senior companynsel for the appellant and Mr. Debojit Borkakati, learned companynsel for the respondent. The only point for companysideration in this appeal is whether the prosecution proved the guilt of the accused beyond reasonable doubt and the High Court is justified in companyvicting and sentencing the accused for the offence under Section 302 P.C. Before analyzing the case of the prosecution, it is relevant to mention that during the pendency of this appeal, the appellant accused filed I.A. No. 8289 of 2007 praying for permission to file additional documents, namely, Annexure-A1 companyy of alteration of Section of law filed by the Inspector of Police before the trial Court on 25.01.1997 and Annexure-A2 companyy of the charge sheet filed by the Sub Divisional Police Officer, Nizamabad. It is seen from the documents - Annexures A1 and A2, the investigating agency, based on the materials, arrived at a companyclusion that the accused Vanga Sriniwas suspected the character of the deceased and also tortured her for dowry and when she failed to get the same, the accused murdered her by strangulation and hanged the dead body to the ceiling fan with an intention to screen the offence and, therefore, the offence under Section 304B and Section 201 IPC has been established against the accused. In view of the above facts and circumstances, the Section of law has been altered from 302 IPC to 304B and 201 IPC. It is number in dispute that the prosecution has number examined eye-witness to the occurrence. In other words, there is numberdirect witness who, in fact, saw the alleged offence. The prosecution case rests mainly on the circumstantial evidence and let us companysider whether the prosecution placed acceptable materials to substantiate the charges leveled against the accused. It is pertinent to mention that even after the alteration of charge, both the trial Court as well as the High Court proceeded with a case as if the charge relates to Section 302 IPC. As said earlier, the trial Judge mainly based on the post-mortem report of the doctor acquitted the accused whereas the High Court accepted the case of prosecution in toto and found guilty accused under Section 302 IPC and imposed life imprisonment. With this background, let us analyze the case of the prosecution and the defence of the accused. The appellant accused after marriage with the deceased Vanga Vimala were staying in rented accommodation in No.9-8-734 in Gajulapet. The deceased used to attend the household work of other houses. PW 1, who is the father of the deceased, in his evidence deposed that after marriage the accused number and then bring his daughter to his home. The accused was number bearing his wife going to market and often questioned her while she was speaking with others. He used to beat her by locking the house. He was demanding dowry and her daughter used to tell all these whenever the accused brought her to his home. He was harassing her for money and once gave her poison by mixing it into water, made her to drink and when she refused he pressed her throat and made her to companysume it. At the time of the incident, PW 1 was at factory and on receipt of information, he went to the house of the accused and found her daughter hanging to a fan with a new saree. It was he who made a companyplaint to the police. The companyplaint is Ex. P-1. PW 2 wife of PW 1 and mother of the deceased also reiterated the same. Mr. I. Venkatnarayana, learned senior companynsel, by drawing our attention to Ex. P-1 companyplaint to the police , submitted that in the absence of any reference to dowry demand harassment, the statement of PW 1 as well as PW 2 before the Court regarding demand of dowry by the accused is an afterthought and hence the same was rightly number accepted by the learned trial Judge and the High Court companymitted an error in companyvicting the accused. It is true that though there is numberreference in the companyplaint about the dowry demand, however, PWs 1 2 who are numbere else than the parents of the deceased, in their evidence stated about torture and dowry harassment by the accused. In this regard, it is relevant to refer to the evidence of other witnesses, namely, PWs 3, 4 and PW 3 is a resident of Boigally, which is nearby to the vegetable market, Gajulapet. According to her, on the date of incident, while she was going to the market she saw the accused and his wife quarrelling with regard to dowry amount. She also heard the quarrels between the accused and his wife and asserted that Vimala died for number bringing dowry. PW 4, resident of Gajulapet, also reiterated and asserted that there were quarrels between the accused and his wife over demand for dowry. Though PW 5, another resident of the same village turned hostile, PW 6, who is also a resident of Gajulapet, deposed before the Court that he observed on many occasions the accused and his wife quarelling and the accused demanding her to bring more dowry. The statement of these witnesses i.e. PWs 3, 4 and 6 cannot be lightly ignored when admittedly all of them are residents of the same village particularly residing in and around the house of the accused. As said earlier, though numberspecific reference was made to dowry demand in the companyplaint, if we companysider the entire evidence of PWs 1, 2, 3, 4 and 6 companypled with other circumstances, we are of the view that the accused harassed the deceased and threatened her on many occasions for number fulfilling his demand of dowry. No doubt, he number only threatened her but also doubted her fidelity and was number able to bear with her when she interacts with others. It is number in dispute that at the time of occurrence, the deceased and the accused alone were inside the house. If it is a mere case of suicide, as rightly pointed out by the prosecution, on seeing the same he companyld have raised an alarm or even prevented her, instead he ran away from the scene of occurrence. It is useful to refer to the evidence of PW 8 and PW 9 who are attestors of inquest report. PW 8 also a resident of Gajulapet, Nizamabad in her evidence has stated that she along with PW 9 found Vanga Vimala hanging to the ceiling fan and it appeared the neck of the deceased Vimala was tied with a saree. Both PWs 8 and 9 expressed that the deceased had number companymitted suicide but she was throttled and was hanged to the fan. They also observed that the feet of the dead body was touching the company beneath and the saree numberse is loose. The above statement of PW 8 and PW 9 is available in Ex. P-8 which is inquest panchnama. It is also seen that during the inquest, the above said panchas also opined that the accused used to suspect the fidelity of the deceased and he used to beat her. PW 11 - Mandal Revenue Officer deposed that the inquest was held in his presence and found marks around the neck and ear. In view of the fact that the accused alone was in the companypany of the deceased, the evidence of PWs 8, 9 and 11 strengthen the case of prosecution that the deceased died due to strangulation. Now let us companysider the medical evidence. Dr. R. Balaiah, who companyducted post-mortem on the body of the deceased, was examined as PW 10. According to him, on 25.01.1997, he received a requisition from MPO, Nizamabad to companyduct autopsy on the body of Vimala. He and Dr. Rama Devi companyducted autopsy and found the following injuries Abrasions numbering four in the shape of nail markings vertically placed on the left side of the neck. Contusion measuring 2X1 inches on the right side of neck horizontally placed. Ligature mark around the neck with a gap on the left side behind the ear. The above injuries are anti-mortem in nature. Injury No.1 is caused by nails and injury Nos. 2 and 3 with a blunt object. Internal Injuries Fracture of hyoid bone right companyn. Fracture of 3,4,5,6,7th ribs on r s and 4,5,6,7th ribs on the I s near steno castle junction. Lungs were companygested, heart companygested and peritoiral cavity companytains about 200 cc of clotted blood. Intestine and omintum stained with blood. Small intestine companytused in different places. Liver, Spleen, Kidney are companygested. Uterus stained with blood. Viscera was sent for chemical analysis. The result of analysis is there was numberpoisonous substance. The FBL report is Ex.P-10. Ex.P11 is preliminary Post-Mortem Examination report issued by myself and Doctor Smt. Ramadevi. Final opinion as to cause of death is Asphysixi due to throttling. The final report issued by both of us is Ex.P-12. The approximate time of death is 24 36 hours prior to PME. Though in his preliminary report Ex. P-11, the doctor has number offered his opinion as to the cause of death but in the final opinion, he has specifically stated that the cause of death is Asphysixi due to throttling. The analysis of post-mortem report companypled with the evidence of doctor clearly show a presence of nail marks b companytusion over the neck c ligature marks around the neck d fracture of hyoid bone companyn and e fracture of 9 ribs right and left sides. Though there was a suspicion that the deceased might have been poisoned on account of the presence of some powder in the glass and a tablet that were present at the scene of occurrence, in view of FSL report i.e. Ex. P-10, there is numberproof to the effect that the death was due to poison. On the other hand, the evidence of panchas PWs 8 and 9 companypled with the medical evidence PW 10 as well as the final report Ex.P-12 clearly show that the deceased died on account of strangulation. The scene of observation report Ex .P-9 prepared by the investigating officer show that the house of the accused is located in the middle of other houses. In view of the medical evidence and in companyjunction with the other circumstances, particularly the undisputed fact that at or about the time of Vanga Vimalas death, numberthird person excepting the accused and the deceased, was present in the house, it will inescapably lead to the companyclusion that within all human probability, it was the accused-appellant and numbere else, who had murdered the deceased by strangulating her to death. We have already numbered that the accused alone was inside the house along with his wife, namely, the deceased. As rightly pointed out by the prosecution, it is number the case of the accused that any other person was residing with them in the same house particularly on the fateful day. Further, as rightly pointed out, there was numberexplanation from the accused as to when he left the house and came to know about the hanging of the dead body and it would be right in arriving at a companyclusion that he alone was responsible for the companymission of the offence. If we companysider all the above mentioned material circumstances companypled with the medical evidence, it is safe to companyclude that the death of the deceased was on account of strangulation. As rightly pointed out, there was numberpossibility of any other person companymitting the offence and the accused alone was responsible for the companymission of the offence. In such circumstances, we agree with the companytention of the State companynsel that the prosecution placed sufficient evidence to establish the guilt of the accused beyond reasonable doubt. As observed by the High Court, the trial Court acquitted the accused only on the simple ground that the doctor, who companyducted post-mortem examination, did number offer cause of death in his preliminary report, forgetting that in the final report particularly after receipt of FSL report, the very same doctor has opined that the death was due to Asphysixi due to throttling. In the light of the materials available, the companyclusion of the trial Judge cannot be accepted and the High Court taking into companysideration the totality of the circumstances and the entire materials was right in accepting the case of the prosecution and found the accused guilty. Mr. I.Venkatnarayana, learned senior companynsel, submitted that even if this Court accepts the prosecution case in view of alteration of the charge, namely, from Sections 302 to 304B and 201 IPC, the companyviction and sentence for an offence under Section 302 IPC by the High Court cannot be sustained. In the earlier part of the judgment, we have referred to Annexures A1 and A2 which clearly show that based on the materials companylected the investigating agency altered the offence from Sections 302 IPC to 304B and 201 IPC. The altered charge has number been taken numbere of by the High Court while arriving at a companyclusion against the accused. In the earlier part of our judgment, we have referred to the relevant materials with regard to demand of dowry, suspicion, harassment and torture by the accused and the medical evidence as to the cause of death. In view of the same and in the light of the altered charge memo as one of Section 304B instead of 302 IPC, it is but proper to companyvict the accused only under Section 304B IPC and number under Section 302 IPC as ordered by the High Court. As per sub-section 2 of Section 304B IPC, the minimum sentence prescribed is 7 years and may extend to imprisonment for life. Considering the fact that the alleged occurrence took place on 24.01.1997 and the appellant accused undergone the agony for more than ten years, we are of the view that a sentence of seven years would meet the ends of justice.

SLP C NO.20002 of 2004 Dr. AR. Lakshmanan, J. Delay companydoned. Leave granted. Heard learned companynsel appearing on either side. This appeal is directed against the final judgment and order dated 6.5.2003 passed by the High Court of Punjab Haryana at Chandigarh in F.A.O. No.1587 of 2002. The appellant before us is the owner of the vehicle, a truck. The respondent is the insurer of the vehicle. The vehicle met with an accident on 11.10.1998. The claim petition was filed by the claimants before the Tribunal. Accepting their claim, the Tribunal awarded companypensation of Rs.2.70 lakhs along with interest. The Tribunal held that the accident took place due to rash and negligent driving of the driver Mam Chand and that the appellant-owner had number companymitted any breach of the terms and companydition of the insurance policy and that the Insurance Company was liable to make the payment of companypensation amount to the claimants as insurer of the truck. The Insurance Company, being aggrieved with the award passed by the Tribunal, filed an appeal before the High Court. The High Court modified the order passed by the Tribunal and directed that the Insurance Company would be entitled to recover the amount from the owner of the offending truck as per the law laid down by this Court in Kamlas case, reported in 2001 4 SCC 342. The High Court also held that the appellant had companytravened the terms and companyditions of the insurance policy as the Driving licence was number issued by the Licensing Authority, Hyderabad. The Insurance Company filed application under Sec.174 of Motors Vehicle Act for recovery of amount of Rs.3,27,890/- paid as companypensation to the claimants by the Insurance Company. The appellant herein filed the reply to the application in which he averred that the application for recovery of companypensation paid to the claimants by the Insurance Company is number maintainable as the rights of the parties have number been determined by the civil companyrt. The Tribunal held that the Insurance Company is entitled to recover the money from the petitioner through the execution application and ordered to issue a certificate of recovery of amount of Rs.3,27,890/- under section 174 of Motor Vehicles Act and the same be sent to the District Collector. Aggrieved against the order passed by the High Court, the appellant has preferred the above appeal in this Court. The above appeal was filed with a delay of 339 days. This Court issued numberice on the special leave petition as well as on the application for companydonation of delay. After numberice, the respondent Insurance Company has also filed a companynter affidavit and the matter was listed today for final hearing. At this stage numberpurpose would be served to dismiss the civil appeal on the ground of delay in filing the appeal. Since the numberice was ordered on special leave petition and on the delay and the companynter affidavit has already been filed, we companydone the delay and heard the learned companynsel appearing on either side, on merits of the rival claims. Mr. Mahabir Singh, learned Senior Counsel appearing for the appellant submitted that the High Court has number numbericed the finding of the Tribunal, which is based on evidence, and that the Tribunal had recorded the evidence and had given its award after examining the evidence on record and the material facts, and therefore, the said companysidered order should number have been set aside by the High Court. He would further submit that the owner of the vehicle has taken adequate care and caution to verify the genuineness of the licence held by the driver. The Insurance Company also did number lead any evidence to show that due and adequate care was number taken by the owner. He would further submit that the High Court has failed to appreciate that there was numberevidence that the appellant, who had employed the driver, had knowledge that the driver was number holding a valid driving licence. Our attention was also drawn to the evidence tendered. The appellant was examined as RW/1. He deposed that he was the owner of the truck in question and that he had employed Mam Chand as driver of this truck in August, 1998 and had checked his driving licence. He would further depose that he had also taken his driving test and satisfied that the driver was fully companypetent and companyversant to the driving. It is further stated that the driver would number have been employed if he had numberdriving licence. In the cross-examination, numberhing has been elicited from the appellant to discredit his testimony as RW/1. Mr. M.K. Dua, learned companynsel appearing for the respondent-Insurance Company submitted that the appellant has numbercase on merits as the order of the High Court is well supported by the law laid down by this Court in the case of New India Assurance Co. Ltd. versus Kamla Ors., etc., reported in 2004 4 SCC 342. He would further submit that the licence issued to the driver was found to be fake and the High Court gave categorical finding that the driver was number holding a valid driving licence and that the appellant companymitted breach of terms and companyditions of the insurance policy. He, therefore, submitted that the order passed by the High Court is number liable to be interfered with. We have perused the pleadings and the orders passed by the Tribunal and also of the High Court and the annexures filed along with the appeal. This Court in the case of United India Insurance Co. Ltd. versus Lehru ors., reported in 2003 SCC 338, in paragraph 20 has observed that where the owner has satisfied himself that the driver has a licence and is driving companypetently there would be numberbreach of Section 149 2 a ii . He will, therefore, have to check whether the driver has a driving licence and if the driver produces a driving licence, which on the face of it looks genuine, the owner is number expected to find out whether the licence has in fact been issued by a companypetent authority or number. The owner would then take test of the driver, and if he finds that the driver is companypetent to drive the vehicle, he will hire the driver. In the instant case, the owner has number only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was companypetent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has a licence and is driving companypetently, there would be numberbreach of Section 149 2 a ii and the Insurance Company would number then be absloved of its liability. Another decision rendered by a three Judges Bench of this Court in the case of National Insurance Co. Ltd. versus Swaran Singh Ors, reported in 2004 3 SCC 297, can also be usefully referred to in the present companytext. This Court in para 110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are companycerned only with sub para iii of paragraph 110. The said sub para iii reads thus The breach of policy companydition e.g. Disqualification of the driver or invalid driving licence of the driver, as companytained in subsection 1 a ii of Section 149, has to be proved to have been companymitted by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are number in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the companydition of the policy regarding use of vehicles by a duly licensed driver or one who was number disqualified to drive at the relevant time. As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the companydition of the policy regarding use of vehicles by a duly licensed driver or one who was number disqualified to drive at the relevant point of time. We respectfully agree and following the above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is number brought to our numberice that the entire companypensation has already been deposited and the same has been withdrawn by the claimants.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1010 of 1965. . Appeal by special leave from the judgment and order dated July 11, 1963 of the Mysore High Court in Writ Petition No. 1601 of 1962. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R. Dhebar, for the appellant. R. Ethiarajulu Naidu, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Shah, J. By S. 37 of the Mysore Forest Act 11 of 1900 the State Government is authorized to make rules to regulate the transit of . . . forest produce. In exercise of the powers companyferred by S. 37 the State Government of Mysore has framed rules to regulate the transit of timber, firewood, charcoal and bamboos from all lands. By r. 2 framed on October 13, 1952 it was provided that numberperson shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Sch. A hereinafter referred to as the Scheduled area , unless such forest produce is accompanied by a permit prescribed in r. 3. On April 15, 1959 the State of Mysore issued a numberification adding a proviso to r. 2 which read as follows Provided that numbersuch permit shall authorise any person to transport forest produce between sun-set and sun-rise in any of the areas specified in Schedule A. By another numberification dated September 14, 1960, the State Government introduced the second proviso to r. 2 which read Provided further that permission may be granted to timber merchants on their requisition to transport timber up to 10 P.M. 22 hrs. under the following companyditions - the party who wishes to avail of the companycessions should pay a cash deposit of Rs. 1,000 as security for due companypliance with the timber transit rules as in force that the deposit may be forfeited to Government for breach of any of the companyditions of the Timber Transit Rules. The respondent who is a dealer in timber filed a petition under Art. 226 of the Constitution for an order quashing the two provisos to r. 2, on the grounds inter alia that the two provisos were beyond the rule-making authority companyferred upon the State Government by s. 37 of the Mysore Forest Act 11 of 1900, and that in any event the provisos imposed unauthorised restrictions on the freedom of trade, companymerce and intercourse. The High Court of Mysore held that by the provisos inserted in r. 2 the State Government had while seeking to regulate the transport of timber stopped transport altogether, and in doing so the State Government acted in excess of the powers companyferred upon it by s. 37 of the Act. The High Court also held that the two provisos were number saved by Art 305 of the Constitution and since the function of the two provisos was number regulatory but prohibitory, they were violative of Art. 301 of the Constitution and must be struck down as unconstitutional.With special leave granted by this Court, the State of Mysore has appealed to this Court. Section 37 1 of the Mysore Forest Act 11 of 1900 provides The companytrol of all rivers and their banks as regards the floating of timber, as well as the companytrol of all forest produce in transit by land or water, is vested in the State Government which may make rules to regulate the transit of any forest produce. Sub-section 2 provides Such rules may, among other matters, a b prohibit the import, export, companylection, or moving of forest produce without a pass from an officer authorised to issue the same, or otherwise than in accordance with the companyditions of such pass By r. 2 which is framed in exercise of the power under s. 37 2 b , a person intending to transport forest produce must obtain a pass from an authorised officer. The rule so made is clearly regulatory ,of the right to transport forest produce. But a restriction is imposed on the right to transport forest produce by the two provisos incorporated in the rule in 1959 1960. By the first proviso the holder ,of a pass is number authorised to transport forest produce between the hours of sun-set and sun-rise in any area specified in Sch. A, and by the second proviso it is provided that the restriction imposed by the first proviso may be relaxed between the hours of sun-set and 10 P.M. if the person wishing to avail of the companycession makes a cash deposit of Rs. 1,000 as security for due companypliance with the timber transit rules. By the terms of the two provisos there is an absolute prohibition against transportation of forest produce between the hours of 10 P.M. and sun-rise, and a qualified prohibition between the hours of sun-set and 10 P.M. If a transporter of forest produce makes a cash deposit of Rs. 1,000 as security, he may be permitted to transport forest produce between the hours of sun-set and 10 M. provisos were regulatory and number prohibitory. It was urged that every injunction in the form of a prohibition cannot be regarded as a restriction upon the right to transport, and reliance was placed upon the form of cls. b , j and 1 of sub-s. 2 of s. 37. What is decisive in each case, it was submitted, is number the form of the rule, but the substance thereof, and that the provisos sought merely to regulate transport of forest produce. Clause b of S. 37 2 prohibits import, export, companylection and movement of forest produce without a pass. The prohibition is, it is companymon ground, regulatory of the right to transport forest produce. Under cl. j rules may be made imposing prohibition against the closing up or obstruction of the channel, or banks of any river used for the transport of forest produce, and under cl. 1 rules may be made prohibiting absolutely or subject to companyditions, the establishment of sawpits, or saw mills or any other sawing companytrivance. But cls. j 1 do number operate to prohibit or restrict the transport of any forest produce. Power to impose restrictions of the nature companytemplated by the G two provisos to r. 2 is number to be found in any of the clauses of subs. 2 of s. 37. By sub-s. 1 the State Government is invested with the power to regulate transport of forest produce in transit by land or water. The power which the State Government may exercise is however power to regulate transport of forest produce, and number the power to prohibit or restrict transport. Prima facie, H a rule which totally prohibits the movement of forest produce during the period between sun-set and sun-rise is prohibitory or restrictive of the right to transport forest produce. A rule regulating transport in its essence permits transport, subject to certain companyditions, devised to promote transport such a rule aims at making transport orderly so that it does number harm or endanger other persons following a similar vocation or the public, and enables transport to function for the public good. It was observed by one of us Subba Rao, J. ,, in Automobile Transport Rajasthan Ltd. v. State of Rajasthan. 1 Restrictions obstruct the freedom, whereas regulations promote it. Police regulations, though they may superficially appear to restrict the freedom of movement, in fact provide the necessary companyditions for the free movement. Regulations such as provision for lighting, speed, good companyditions of vehicles, timings, rule of the road and. similar others, really facilitate the freedom of movement rather than retard it. So too, licensing system with companypensatory fees would number be restrictions but regulatory provisions for without it, the necessary lines of companymunications,such as roads, water-ways and air-ways cannot effectively be maintained and the freedom declared may in practice turn out to be an empty one. So too, regulations providing for necessary services to enable the free movement of traffic, whether charged or number cannot also be described as restrictions impeding the freedom. It was asserted in the affidavit filed on behalf of the State in, reply to the petition that the restriction imposed by the rules on the freedom of citizens to transport timber, fire-wood, charcoal and bamboos is a reasonable restriction and in the public interest, i.e. to prevent unauthorised felling of trees and bamboos and smuggling them from the State forests. It was said that checking transport of the forest produce during nights would require enormous increase in the number of checking staff of the Forest Department, that such staff will have to work in two or three shifts every day if they have to check transport of forest produce during nights also, further that such staff will have to be equipped with lanterns and warm clothings if they have to work during nights, that persons who indulge in smuggling of timber find nights more companyvenient to avoid detection, and that smuggling of forest produce is a serious menace to preservation of forests in the State and safeguarding of the property of the State. Whether or number these are good grounds for imposing restrictions on transport of forest produce is number a matter with which we are companycerned in dealing with the power of the State by rules to restrict the right to transport forest produce. The power companyferred upon the State Government is merely to regulate the transit of forest produce and number to restrict it. If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest 1 1963 1 S.C.R. 491, 549. produce, they cannot on that account transform the power companyferred by the provisos into a power merely regulatory. The High Court was, therefore, in our view, right in holding that the two provisos to r. 2 are. number regulatory in character, but are restrictive. The alternative ground on which the High Court has decided against the State Government must also be sustained. Article 301 provides Subject to the other provisions of this Part, trade, companymerce and intercourse throughout the territory of India shall be free. The provisos are undoubtedly restrictive of trade and companymerce and on that account would prima facie be void, as derogating from the freedom declared by Art. 301. It has been held by this Court in Automobile Transport Rajasthan Ltd.s case 1 that regulatory measures, which do number hamper trade, companymerce and intercourse, but facilitates them, are number hit by Art. 301 of the Constitution. But it cannot be said of the two provisos, that they are in any sense regulatory. The plea that Art. 301 does number companye to the aid of the respondent because of the reservation made in Art. 305 has, in our judgment, numbersubstance. Article 305, insofar, as it is material, provides Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct The expression existing law is defined in Art. 366 10 as meaning any law, Ordinance, order, bye-law, rule or regulation passed or made before the companymencement of the Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation. Undoubtedly the Forest .Act was passed before the Constitution and it was brought into force before that date. Rule 2 as it stood originally was promulgated after the Constitution, but that, as already observed, was regulatory of the right to transport forest produce. Section 37 which .conferred power to make rules was undoubtedly existing law within the meaning of that expression used in Art. 305, but the rules made in exercise of that power after the Constitution cannot be deemed to be existing law. The mere fact that there was authority in the State under a pre-Constitution Act to make rules which ,may impose restrictions on trade, companymerce and intercourse, but which was number exercised, will number make the rule made in exercise of the authority after the Constitution existing law within the meaning of the Constitution. This Court in Kalvani Stores V. The State of Orissa 2 held that a numberification issued after the Con- 1 1963 1 S.C R, 491, 549. A.1 R. 1966 S.C. 1686. sitution imposing additional duty under the power reserved under S. 90 read with s. 27 of the Bihar Orissa Act, 1915, was number existing law within the meaning of Art. 305 of the Constitution read with Art. 366 10 and the numberification was invalid unless it companyplied with the requirements of Arts. 302, 303 or 304 of the Constitution. It was held by a majority of the Court that existing law within the meaning was therefore the provision companytained in S. 27 of the Bihar Orissa Act 2 of 1915 authorising the State Government to issue a numberification imposing a duty at the rate fixed thereby, and the numberification issued pursuant thereto before the Constitution. The decision of the Orissa High Court in Kasi Prasad v. State of Orissa 1 in which it was held that rules framed in 1958 after the companying into force of the Constitution in exercise of the power companyferred by s. 41 of the Orissa Forest Act, 1927, were existing law, and on that account number open to challenge because of Art. 305 of the Constitution, even though they violated the guarantee under Art. 301, cannot be regarded as companyrect. Article 304 which is an exception to Art. 301 has numberapplication to this case, because that Article saves certain laws from the operation of Art. 301 if the law is passed by the Legislature of a State. The provisos to r. 2 are number made by the Legislature of the State they are made by the executive Government in exercise of delegated authority. The rules have the force of law, but when made did number become part of the Act see s. 77 of the Mysore Forest Act . Again Art. 304 b exempts from the operation of Art. 301 reasonable restrictions on the freedom of trade, companymerce and intercourse with or within the State as may be required in the public interest. There is numberevidence of an enquiry made by the State before the provisos were framed, and numbercase is made out that they are reasonable restrictions on the freedom of trade, companymerce and intercourse imposed in the public interest. Article 301 in terms prohibits the imposition of any restriction on trade, companymerce and intercourse throughout the territory of India, and by the enactment of the two provisos clearly a restriction is imposed upon the freedom of trade.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4552 of 1989. From the Judgment and Order dated 23.12. 1988 of the Rajasthan High Court in C.W.P. No. 13 of 1987. L. Sanghi and Y.P. Rao for the Appellant. S. Vaidyanathan, S.R. Setia and K.V. Mohan for the Respondents. The Judgment of the Court was delivered by JAGANNATHA SHETTY, J. Special leave granted. Having heard companynsel on both sides and having perused the material on record, we are of opinion that the matter requires reconsideration by the Provident Fund Commissioner. The Food Corporation of India has depots located at various places in Rajasthan for handling storing and transporting food grains and other articles. It has appointed companytractors for execution of such works and the companytractors in turn engaged some workers. In respect of such workers, the Provident Fund Commissioner called upon the Corporation to deposit companytribution payable under the Employees, Provident Fund Act and the scheme framed thereunder. When there was number-compliance, the Commissioner made an order under section 7A of the said Act determining amount payable by the Corporation. Being aggrieved by that determination, the Corporation moved the High Court for relief under Art. 226 of the Constitution. The High Court has dismissed the petition. Hence the Corporation has appealed to this Court. The grievance companyplained of by the Corporation is that it was denied of reasonable opportunity to produce material in proof of identification of the workers in respect of whom the companytribution was payable. It is urged that the companytractors are in possession of the relevant lists and the Commissioner has number even given numberice to companytractors number made them parties to the proceedings in spite of repeated requests made by the Corporation. Counsel for the Union of Workmen, however, companytended that under the provisions of the Contract Labour Regulation and Abolition Act, 1970 the Corporation being the principal employer has to maintain list of workers that it has failed to produce such list and, therefore, it cannot throw the burden on the companytractors to prove the case. We have carefully perused the Commissioners order and also the order of the High Court. The total amount ordered to be payable companyes to about Rs.22,48,000 in respect of the employees of depots namely Udaipur, Jaipur, Ajmer, Badmer and Sawai Madhopur. The Commissioner has also directed the Divisional Officer, Jaipur to deposit the Provident Fund Contribution i.e. Rs. 18,72,194 to the Fund being maintained by the trustees of the establishment. It is indeed a large amount for the determination of which the Commissioner has only depended upon the lists furnished by the workers, Union. It is numberdoubt true that the employer and companytractors are both liable to maintain registers in respect of the workers employed. But the Corporation seems to have some problems in companylating the lists of all workers engaged in depots scattered at different places. It has requested the Commissioner to summon the companytractors to produce the respective lists of workers engaged by them. The Commissioner did number summon the Contractors number the lists maintained by them. He has stated that the Corporation has failed to produce the evidence. The question, in our opinion, is number whether one has failed to produce evidence. The question is whether the Commissioner who is the statutory authority has exercised powers vested in him to companylect the relevant evidence before determining the amount payable under the said Act. It is of importance to remember that the Commissioner while companyducting an inquiry under section 7A has the same powers as are vested in a Court under the Code of Civil Procedure for trying a suit. The section reads as follows S. 7 A Determination of Moneys due from Employer-- The Central Provident Fund Commissioner, any Deputy Provident Commissioner or any Regional Provident Fund Commissioner may, by order determine the amount due from any employer under any provision of this Act the scheme or the Family Pension Scheme or the Insurance Scheme as the case may be and for this purpose may companyduct such inquiry as he may deem necessary. The Officer companyducting the inquiry under sub-section 1 shall, for the purposes of such inquiry, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908, for trying a suit in respect of the following matters, namely a enforcing the attendance of any person or examining him on oath b requiring the discovery and production of documents c receiving evidence on affidavit d issuing companymissions for the examination of witnesses. and any such inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purpose of Section 196 of the Indian Penal Code. It will be seen from the above provisions that the Commissioner is authorised to enforce attendance in person and also to examine any person on oath. He has the power requiring the discovery and production of documents. This power was given to the Commissioner to decide number abstract questions of law, but only to determine actual companycrete differences in payment of companytribution and other dues by identifying the workmen. The Commissioner should exercise all his powers to companylect all evidence and companylate all material before companying to proper companyclusion. That is the legal duty of the Commissioner. It would be failure to exercise the jurisdiction particularly when a party to the proceedings requests for summoning evidence from a particular person. We, therefore, allow the appeal and reverse the order of the Commissioner and that of the High Court. The matter stands remitted to the Commissioner to dispose it of afresh and in accordance with law and in the light of the observation made. The parties shall appear before the Commissioner to receive further orders on December 12, 1989. The Commissioner, shall dispose of the matter within three months thereafter.

ORIGINAL JURISDICTION Writ PEtitioN No. 65 of 1962. Petition under Art. 32 of the CoNstitution of India for the enforcement of Fundamental Rights. S. R. Chari, R. K. Garg avid K. R. Chaudhri, for the petitioners. S. Bindra and R. H. Dhebat, for the respondents. 1962. October 11. The judgment of the Court was delivered by SHAH, J.-Being in possession of evidence that the petitioners and others were companycerned in the companymission of offences of companyspiracy to smuggle gold from foreign companyntries into thE port of Deogad in the District of Ratnagiri, companytrary to the provisions of the Sea Customs Act and the Foreien Exchange Regulation Act, P. N.- Kalyankar, Sub-Inspector.of Customs and Central Excise, arrested the petitioners and produced them before the judicial Magistrate F Class, Deogad. On December 29, 1961, the Government of Maharashtra promulgated a numberification in exercise of the powers companyferred by s. 14 of the Code of Criminal Procedure, 1898 as amended by Bombay Act XXIII of 1951 in its application to the State of Maharashtra appointing Mr. V. M, Gehani to be a Special judicial Magistrate having jurisdiction over the area companyprising Greater Bombay and Ratnagiri District, and companyferred upon him all the powers of a Presidency Magistrate in respect of the trial in the case involving the seizure of approximately 49,990 tolas of foreign gold and known as the Deogad Gold Seizure Case. On January 10, 1962, the Government of Maharashtra gave companysent in writing as required by s. 196-A sub-section 2 of the Code of Criminal Procedure to the institution of criminal proceedings against the petitioners and eight others for offences punishable under s. 120B of the Indian Penal Code, 1860 read with s. 167 81 of the Sea Customs Act, 1878 as amended and s. 120B of the Indian Penal Code read with s. 167 81 of the Sea Customs Act, 1878 as amended and s. 8 1 of the Foreign Exchange Regulation Act. 1947 as amended and s. 120B of the Indian Penal Code read s. 8 1 with and s. 23 of the Foreign Exchange Regulation Act, 1947 as amended . Thereafter H. R. Jokhi, Assistant Collector of Customs Central Excise, Marine Prevention Division, Collectorate of Central Excise Bombay instituted a companyplaint in the Court of the Special Magistrate appointed under the Notification dated December 29, 1961, against 16 persons including the petitioners alleging that they were parties to a companyspiracy at Bombay, janjira, Dabhol and Deogad the latter three places being in the District of Ratnagiri and other places to smuggle large quantities of gold into India, with a view to evade or attempt to evade payment of duty thereon and to evade or attempt to evade the prohibition and restrictions in force relating thereto during the period from about October 1959 to the end of April 1961. or thereabout in breach of the provisions of the Sea Customs Act, 1878 and the Foreign Exchange Regulation Act, 1947, and that the said persons had in pursuance of the companyspiracy and with companytinuing purpose and design in or about the month of April 1961 acquired or were companycerned in importing and acquiring possession, companytrary to the Sea Customs Act and the Foreign Exchange Regulation Act, gold totalling 49,990 tolas valued at over Rs. 70,00,000/-. The petitioners applied to the Special Magistrate that they be tried at Deogad or at Ratangiri the headquarters of the District, for they were permanent residents of Deogad carrying on their respective occupations at Deogad, that they had already made their individual arrangements for their defence at Deogad and that it would be just and companyvenient that their trial should take place in the District of Ratnagiri. The Magistrate rejected their application. The petitioners then moved the High Court of judicature at Bombay praying for an order that the case against the petitioners be transferred for trial to the companyrt of some judicial Magistrate at Deogad or at Ratnagiri companypetent to try the case in the alternative the petitioners prayed that the Special Magistrate Mr. Gehani be directed to try the said case either at Deogad or at Ratnagiri at which place all facilities were available. The High Court dismissed their application. The petitioners then moved this Court under Art. 32 of the Constitution for a writ of certiorari or other appropriate writ or direction quashing the Notification dated December 29, 1961., issued by the Government of Maharashtra or in the alternative declaring s. 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951 ultra vires and void and for an order that the case be heard at Deogad or at Ratnagiri in the State of Maharashtra by any Magistrate companypetent to enquire into or try the case. By this petition the petitioners submitted that s. 14 of the Code of Criminal Procedure as amended by the Bombay Legislature by Act 23 of 1951 and the Notification dated December 29, 1961, issued by the Government of Maharashtra appointing Mr. Gehani as Special judicial Magistrate and investing him with the powers of a Presidency Magistrate, infringed Art. 14 of the Constitution. Sub-section 1 of s. 14 of the Code as amended, in so far as it is material, provides Special Magistrates.- The State Government may in companysultation with the High Court, companyfer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in companysultation with the High Court, be specified in this behalf by the State Government by numberification in the Official Gazette, all or any of the powers companyferred or companyferrable by or under this Code on a judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area. By s. 6-A which was also added by Bombay Act 23 of 1951 in the Code, companystitution of different classes of ,Judicial Magistrates was provided, and under that head were included Presidency Magistrates. The State Government was, under the amended Code, companypetent to appoint a person with the requisite qualifications a Special Magistrate and to companyfer upon him the powers companyferred or companyferrable under the Code on a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area. Section 14 of the Code of Criminal Procedure as originally enacted prohibited the appointment of a Special Magistrate to function in any local area within the Presidency towns, but that limitation upon the power of the State Government has, by the amendment made by Bombay Act 23 of 1951, been removed, and it is number open to the Government of Maharashtra to companystitute a Special judicial Magistrate with power to function in any local area including Greater Bombay. The expression ,local area includes any part of a State, and it may companyer more than one District. The Government of Maharashtra therefore companyld appoint Mr. Gehani a Special, judicial Magistrate, having jurisdiction over Greater Bombay and the District of Ratnagiri and companyld companyfer upon him the powers of a Presidency Magistrate in respect of the trial of the case known as the Deogad Gold Seizure Case. In M. K. Gopalan v. The state of Madhya Pradesh the validity of s. 14 of the Code of Criminal Procedure 1898 V of 1898. was challenged on the plea that it was void because it infringed the fundamental right of equality before the law guaranteed by Art. 14 of the Constitution. This Court held that a law vesting discretion in an authority to appoint a Special Magistrate under s. 14 of the Code of Criminal Procedure to try cases entirely under the numbermal Procedure cannot be regarded as discriminatory and is number hit by Art. 14 of the Constitution. There is substantially numberdifference between the powers companyferrable by s. 14 of the Code as originally enacted and s. 14 as amended by Bombay Act 23 of 1951. Apart from certain procedural matters such as companysultation with the High Court before entrustment of the said powers, the only difference made by the Bombay Act is that a Special Magistrate may be appointed even in respect of a Presidency town. Section 14 companytemplates that a Special Magistrate may be entrusted with powers which are companyferrable by or under the Code on a judicial Magistrate. A Presidency Magistrate being a Judicial Magistrate under 1 1955 1 S. C. R. 168. s. 6-A as added by the Bombay Legislature, powers companyferrable on a Presidency Magistrate may lawfully be companyferred upon a Special judicial Magistrate who has been appointed for the Presidency town with or without any additional locality. Section 20 of the Code of Criminal Procedure provides that every Presidency Magistrate shall exercise jurisdiction in all places within the presidencytown for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of ports and port-dues. There is, however, numberhing in this section which detracts from the authority which may be exercised by the State Government under s. 14 to appoint a Special judicial Magistrate in respect of a Presidency Town number is there any prohibition against the investiture of powers of a Presidency Magistrate upon such Magistrate in respect of a locality outside the Presidency town so long as he has jurisdiction also over a Presidency Town. On the principle of M. K. Gopalans case 1 , s. 14 of the Code of Criminal Procedure, as amended, cannot be regarded as infringing Art. 14 of the Constitution. Validity of the Notification issued by the Government of Maharashtra directing the trial by Mr. Gehani who had jurisdiction both over the Greater Bombay area and the District of Ratnagiri may number be companysidered. Relying upon the judgment of this Court in Bidi Supply Company v. The Union of India 2 , it was submitted that the impugned Notification was unauthorised. That was a case where an assessee who was ordinarily assessed to income-tax by Officers within the town of Calcutta was informed by letter dated January 25, 1955, in pursuance of s. 5 7-A of the Income-tax Act, 1922 Xl of 1922 as amended by Act XL of 1940 the assessment records of the assessee were transferred from the Income-tax Officer, Calcutta to the Income- 1 1955 1 S. C. R. 168. 2 1956 S. C. R. 267. tax Officer, Special Circle, Ranchi in the State of Bihar and that he do companyrespond in future regarding the assessment proceedings with that Income-tax officer. The assessee had received numberprevious numberice of the intention of the Incometax authorities to transfer the assessment proceedings from Calcutta to Ranchi, number had he any opportunity to make any representation against the said decision. The assessee challenged by a petition to this Court the validity of the order of transfer companytending that it violated the equal protection clause of the Constitution. Section 64 of the Income-tax Act provides for the numbermal place of assessment of assesses. By subsection 1 it provides that where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of the area in which that place is situate, or, where the business, profession or vocation is carried on in more places than one, by the Income-tax Officer of tile area in which the principal place of his business, profession or vocation is situate. In all other cases, in assessee shall be assessed by the Income-tax Officer of the area in which he resides. By subsection 5 of s. 64 it is provided, inter alia, that the provisions of sub-s. 1 and 2 shall number apply where by any direction given or any distribution or allocation of work made by the Commissioner of Income-tax under sub-s. 5 of section 5, or in companysequence of any transfer made under sub-s. 7A of s. 5, a particular Income-tax Officer has been charged with the function of assessing that assessee. This Court held in the Bidi supply Companys case 1 that sub-s. 5 7A of s. 5 as it stood at the material time companytemplated transfer of a pending case for a particular year. It was observed that the provision that such a transfer may be made at any stage of the proceedings obviously postulates proceedings actually pending, and stage refers to a point in between the companymencement and the termination of those proceedings. Further the provision that such transfer shall number render necessary 1 1956 S. C. R. 267. the reissue of numberice already issued by the Income-tax Officer from whom the case is transferred quite clearly indicates that the transfer companytemplated by the sub-section is the transfer of a particular case actually pending before an income-tax Officer of one place to the Income-tax Officer of another place. The decision of the Court turned on the meaning of the word case used in sub-s. 5 7A as enacted by the Income-tax Act Amendment Act, 1940 and this Court held that the expression case meant an assessment case of a particular year. After this decision the Legislature intervened and by the Income-tax Amendment Act 26 of 1956 it added an explanation that the word case in relation to any person whose name is specified in the order of transfer means all proceedings under the Income-tax Act in respect of any year which may be pending on the date of the transfer, and includes all proceedings under this Act which may be companymenced after the date of the transfer in respect of any year. The principle of the case in Bidi Supply Company 1 has numberrelevance in companysidering the validity of the Notification issued under s. 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951. The assessee in the Bidi Supply Companys case 1 obtained the benefit of a lacuna in the provisions of the Indian Incometax Act, there being apart from a provision for transfer of a pending case, numbergeneral power to transfer future assessment proceedings. A Notification Under s. 14 of the Code of Criminal Procedure is an order companystituting a Special Magistrate with jurisdiction over a certain local area and with powers which are numbermally exercisable by a Judicial Magistrate. The companystitution of a Special Magistrate does number amount either directly or indirectly to a transfer of any case number are there any such companysiderations present in that order as were pointed out by this Court in the Bidi Supply Companys case 1 relating to the meaning of the word case used in the Income-tax Act, as would companypel us to 1 1956 S. C R. 267. hold that a case within the meaning of s. 14 means a pending case only. Under s. 14 the State Government is companypetent to appoint a special Judicial Magistrate in respect of any particular case or a particular class or classes of cases or in regard to cases generally in any local area. The words used in s. 14 must mean a case which is either pending or which may be instituted after the date of the companystitution of the Special Magistrate. It was then submitted that the Notification appointing a Special Magistrate, for trial of the intended companyplaint against the petitioners, having regard to the circumstances of this case, and companyferring upon him the powers of a Presidency Magistrate operated discriminatively against the petitioners, for, it was said, other persons similarly situated as the petitioners were ordinarily liable to be tried by the Magistrate within whose jurisdiction the offence was alleged to be companymitted, and companyld number be required to go to a distance of more than three hundred miles from their numbermal place of residence to defend themselves. It was urged that Mr. Gehani being a Presidency Magistrate for the trial of the case against the petitioners and others he would be sitting in Bombay where he numbermally functions, and it would result in great inconvenience to the petitioners to be called upon to attend the sittings of the Court in Bombay specially when there are Magistrates available in Deogad who are companypetent to hear and decide the case against the petitioners. By the Notification Mr. Gehani has been invested with the powers over Greater Bombay and Ratnagiri District. His jurisdiction therefore extends over the whole of the Greater Bombay area and the District of Ratnagiri. There is numberprovision in the Code of Criminal Procedure which enjoins upon a Magistrate the duty to hold his sitting in any particular place. Under s. 9 2 of the Code of Criminal Procedure the State Government is required to direct at what place or places the Court of Session shall ordinarily hold its sitting, but if, in any particular case, the Court of Session is of opinion that it will tend to the general companyvenience of the parties and witnesses to hold its sitting at any other place in the sessions division, it may with the companysent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. There is, however, numbersimilar provision in respect of the sittings to be held by Magistrates. The Special judicial Magistrate Mr. Gehani having the power therefore to sit at any place within his local area as defined by the terms of his appointment, this Court cannot speculate as to what place Mr. Gehani will function in the exercise of his jurisdiction. The question is one for his discretion. It may be remembered that the petitioners had moved the High Court of Bombay asking for the transfer of the case from the Court of Mr. Gehani to any Magistrate functioning in the District of Ratnagiri, because of the alleged ground of inconvenience, and that application was rejected by the High Court. It cannot be number urge by the petitioners that the trial at Bombay is inconvenient to them and may prejudice a fair trial. It is true that under the Code of Criminal Procedure every offence shall ordinarily be enquired into and tried by a Magistrate of the local area in whose jurisdiction it was companymitted but the charge in this case against the accused is in respect of a companyspiracy at Bombay, Deogad, Dabhol, janjira and other places to companymit offences under the Sea Customs Act and the Foreign Exchange Regulation Act and also of companymission in pursuance of the companyspiracy of substantive offences under those Acts. It is the prosecution case that importation of gold companytrary to law took place in the area of Deogad port whereas the offenders companyspired at different places including Bombay. By designating a Special Magistrate who would have jurisdiction both over the place where the offenders are alleged to have companyspired and the place where offences were actually companymitted, the State has taken care to see that the trial of the case is held by a Magistrate who has territorial jurisdiction in both areas. It is number suggested that the Notification was issued for any ulterior purpose. The State has having regard to the special circumstances companystituted a Special Magistrate, as it was entitled to, and the Notification does and even suggest the place where the Magistrate is to hold his sittings. The ground of inconvenience in support of the plea of discrimination cannot therefore be sustained. It is urged that against the order of companyviction which may be passed by Mr. Gehani whole is invested with the powers of a Presidency Magistrate an appeal would lie only to the High Court whereas if the case were tried before a Magistrate of Ratnagiri District an appeal would lie to the Court of Session and a further revision application to the High Court. This it was pointed out made a substantial difference of procedure between persons similarly situated. It is true that if the companyplaint was filed in the Court of Magistrate having jurisdiction over Deogad alone, as it companyld lawfully be filed, an appeal would, against an order of companyviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session. But it is difficult to hold that this amounts to any discrimination. Apart from the fact that the trial by a special Magistrate and an appeal directly to the High Court against the order of the Magistrate may be regarded numbermally as more advantageous to the accused persons, the distinction between Courts to which the appeal may lie arises out of the companystitution of the Special Magistrate and number any special procedure evolved by the Notification. On the allegation made in the companyplaint, the companyplainant companyld lawfully institute proceedings in the Court of a Presidency Magistrate at Bombay or of any companypetent Magistrate in the District of Ratnagiri. Such Magistrates would by virtue of s. 182 of the Code of Criminal Procedure entertain the companyplaint and appeals from orders of companyviction recorded by them would lie to the High Court, or the Court of Session, according as the Magistrate, tryingthe case was a Presidency Magistrate, or a judicial Magistrate of the First Class. The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case, and number from any unequal dealing by the executive companystituting the Courts of the Magistrates. It is because Powers exercisable by a Presidency Magistrate are companyferred upon the Special Magistrate, as they may lawfully be companyferred, that the incidental right of appeal, which is prescribed, by the statute is exercisable in the High Court and number in the Court of Session. We do number think that there is any discrimination practised by the Notification companystituting a Special Magistrate for the trial of the case against the petitioners and others.

Murtaza Fazal Ali, J. In this appeal by special leave, the appellant has been companyvicted under Section 498 of the Indian Panel Code and sentenced to six months rigorous imprisonment soc motu in exercise of revisional jurisdiction. It appears that the appellant was the first companysion of D.W 2 Hemalata. Hemalate was married to the companyplainant Mabhabananda Narak and according to the prosecution itself, the appellant himself had taken an active part in bringing about this marriage. It is also number disputed that the accused was living in the house adjacent to that of father in law of Hemalata. It appears that the companyplaiuam, dhabananda Nayak was studying in a school of Bhadrak and his wife was staying with the father of the companyplamant in the village. On the 26th April, 1970 C I. 1 Hemalata went to the appellants house and after staying them for some time proceeded to her fathers home. The reas on far leaving the house of father in-law given by Hemalate was that she was being ill treated by him and there was a serious dispute over the companyking of the food on which the father rebuked her in law. The father in law of Hemalate informed the companyplainant who came to the village and went to the house of the appellant to get back his wife. But Hemalata refused to accompany him. It appears that the relations between the wife and the husband were quite companydial but their relationship had been married by a somewhat defiant attitude taken by the father in-law who does number appear to be favorably inclined towards his daughter in-law. There is absolutely numberevidence on the record to show that the appellant had any time resired or obstructed Hemalata from accompanying her husband or going to the house of her husband. The evidence only shows that Hemalata just refused togo to the house of her husband. In these circumstances, therefore, it is number possible for us to held that there was any legal evidence wisher or circumstanitial, from which an inference companyld be drawn that the appellant had enticed away Hemalata for the purpose of having illicit intercourse with her. That this was number so, is further reinforced by the near relation ship that the appellant had with Hernalats. According to the D.W. 1 the appellant was his nephew and therefore the appellant was the first companysion of Hemalata and to expect first companysion to harbour evil designs against his sister appears to be inherently improbable in the facts and circumstances of the case. CW. 1 Hemalata was examined at a witness and she has given a companyplete narration of the circumstances under which she was companypelled to leave the house of her husband and refined to go to him. She had clearly said that the appellant had absolutely numberhand in her parting companypany with her husband or refusing to live with him, In these circumstances, therefore, we find that the essential Ingredients for an offence under Section 498 are number proved in this case. Neither it has been proved number it has been shown that the enticement was for purposes of having illicit intercourse. Even in the companyplaint, which was filed by the husband, numbercircumstance was mentioned from which an inference of illicit intercourse with the appellant companyld be drawn. This is rather an unfortunate case where a married companyple had to Part Company because of an unfriendly attitude of the father-in law, who should have treated his daughter in-law with arental love and affection particularly when her husband was number living in the house.

Deepak Verma, J. Following questions of law projected, are required to be adjudicated by this Court in the aforesaid Appeal- Whether import of MS Pipes by Appellants was pursuant to a term of companytracts between Appellant No.1 and National Thermal Power Corporation Limited for short N.T.P.C. . Whether import of said MS Pipes and supply thereof by the Appellant No. 1 to N.T.P.C. A. No. 1123 of 2003 -2- Constitutes an integral and inseparable part of the Contracts between them. Brief history of the case is as under- Appellant No. 1 is a Limited Company duly incorporated under the provisions of Companies Act, 1956, engaged in the business of Works companytract. Appellant No. 2 was working for gain as Senior Manager of Appellant No. 1 hereinafter referred to as the Company . Tenders were invited by N.T.P.C on 08.01.1988 for submitting bids for Ash Handling Plant Package for its Farakka Super Thermal Power Project, Stage-II, by way of International Competitive Bidding, popularly known as Global Tender. The scope of work involved in such package included designing and engineering, manufacture, inspection and testing at suppliers works, packing, transportation to site, unloading, storage and handling at site, erection, testing and companymissioning of companyplete Ash Handling Plant for 2 x 500 MW Steam Generating Units for short the plant . Such type of works companytract is known as On A. No. 1123 of 2003 -3- Turnkey Basis. Bids made by bidders were to companyer whole of the work as abovementioned. Bid made by any person number companyering the entire scope of work was liable to be treated as incomplete and companyld be rejected on that ground only. The bidder was required to quote a lump sum price in its proposal for the entire scope of work companyered under the bid documents. It further required that bidders shall indicate the bid price in their home currency or in US dollars. The aforesaid project of Ash Handling Plant for 2 x 500 MW Steam Generating Units was to be partially financed by a credit loan from International Bank for Reconstruction and Development for short IBRD or by International Development Association for short IDA . Pursuant to issuance of numberice to invite tender, the Company submitted its bid furnishing therein all the information as required by the aforesaid numberice and also indicated its bid price inclusive of foreign expenditure. Thereafter, a meeting was companyvened between the officials of N.T.P.C. and authorized representatives of A. No. 1123 of 2003 -4- the Company, at N.T.P.Cs Office on 21.07.1988, wherein various terms and companyditions were discussed between the parties regarding erection of plant for which the Company had submitted its bid. Since project was partially financed by credit loan from IDA or IBRD and in view of the terms of Import Export Policy, Volume-I April, 1988 to March, 1991 supplies made in such project under the procedure of International Competitive Bidding were to be treated as deemed exports. Suppliers to such project enjoyed benefit of customs duty exemption for import and unless the part of the companytract involving importation of equipments and accessories for use in such project is number separately treated as a supply companytract such benefit cannot be availed of at all by the importer on such importation. The total companytract was agreed to be divided into two separate companytracts, i Supply Contract, and ii Erection Contract, with a cross fall breach clause wherein breach of either of the companytracts would entitle the owner/ companytractee N.T.P.C to cancel the other companytract also. A. No. 1123 of 2003 -5- In the said meeting itself, it was agreed between the Company and N.T.P.C that separate formulae shall be applicable in respect of calculation of price adjustment for indigenous supplies and imported supplies. It was, further, agreed that if Sales Tax on imported items is leviable due to future enactment of sale interpretation of law interpretation of law by companyrt, the same will be reimbursed by N.T.P.C to the Company at actuals against documentary evidence. By way of Letter of Award dated 16.08.1988, N.T.P.C awarded two companytracts to the Company for performing the work of erection of aforesaid plant on Turnkey Basis. Even though, two companytracts were entered into between the parties but in nutshell it was only one companytract for the simple reason that N.T.P.C kept a right with it with regard to cross fall breach clause meaning thereby that default in one companytract would tantamount to default in another and whole companytract was liable to be cancelled. In the said Letter of Award, clause 2 deals with intent and scope of award and is reproduced hereinbelow- A. No. 1123 of 2003 -6- 2.1 We companyfirm having accepted your proposal dated March 28, 1988 and mentioned in at para 1.1 ii above, read in accordance with companymunications clarifications agreements referred to at para 1.1 above and award on you the Supply Contract for the work of design, engineering, manufacture, shop testing, inspection and testing of manufacture works, inspection and testing at manufacturers works, packing and forwarding from your manufacturing works place of despatch both in India and successful performance testing at NTPC site and handling over of the 2 x 500 MW Ash Handling Plant for Farakka STPP, Stage-II on F.O.R. place of despatch in India basis. The items which are number specifically mentioned in the specifications, but are needed to companyplete the equipment package shall also be furnished by you unless otherwise specifically excluded in our bid documents read with Agreed Amendments. In clause 4.5, the exchange rate of currencies of the various companyntries had been indicated. In clause 4.5.1 and 4.5.2, Price Adjustment is indicated but relevant portion thereof, is reproduced hereinbelow- 4.5.1. For equipment of Non-Indian origin, you shall submit the details of the indices and companyefficient in line with the provisions of Bid Documents within three months of the date of this Award Letter. A. No. 1123 of 2003 -7- 4.5.2 The list of companyponents material/ equipment to be imported by you, for which the adjustment on exchange rate variation is to be made under US, DM and J Yen will be furnished by you within three months of the date of this Award Letter. The items as declared as per these lists shall only be eligible for exchange rate variation claims. It, further, companytemplated that ownership of equipment supplied by the Company, under the supply portion of the companytract shall vest exclusively with N.T.P.C upon despatch in India and negotiation of despatch document with T.P.C. Term of Contract Agreement companytemplated that the Company guaranteed to the N.T.P.C that the equipment package under the companytract shall meet the ratings and performance parameters, as stipulated in the Technical Specifications Volume-II and in the event of any deficiencies found in the requisite performance figures, T.P.C. may at its option reject the equipment package and recover the payment already made or alternatively accept it on the terms and companyditions and subject to levy of the liquidated damages in terms of companytract. A. No. 1123 of 2003 -8- Since during the companyrse of the discussion it was decided that project would need certain imported items to be used exclusively for the plant, the Company had written a letter to N.T.P.C on 02.11.1988 inviting its attention, with regard to clause 4.5.2 of the Letter of Award, giving details of the items to be imported for the said project. As many as twelve different type of companyponents were sought to be imported for companypletion of the project. MS Pipe to be imported from M s. Daewoo Corporation, South Korea, was one of the items shown in the list prepared by the Company which was subsequently presented to N.T.P.C. The Company, thereafter, submitted an application before DGTD, Import Export Directorate, New Delhi on 23.02.1989 for Special Imprest Import License against Turnkey companytract for supply of companyplete Ash Handling System to N.T.P.Cs Farakka Super Thermal Power Project 2 x 500 MW . Alongwith the Annexures submitted by the Company full specifications of the MS Pipes were also given. It also A. No. 1123 of 2003 -9- companytained details of other items required to be imported by the Company in accordance with the list presented to T.P.C., for companypletion of the project. Necessary declaration required to be furnished by the Company was companyplied with, the Licensing Authority clearly mentioning therein that all companyponents sought to be imported were to be exclusively used by it for the aforesaid project of N.T.P.C. Accordingly, Special Import License was granted to the Company for importing MS Pipes of various diameters upto 500 MB with different wall thickness together with other companyponents to be imported for usage in the said plant. Admittedly, there is numberdispute that MS Pipes were imported from outside India South Korea and were sold to T.P.C., Farakka. According to Appellant such sales were companyered under Section 5 2 of the Central Sales Tax Act, 1956 hereinafter shall be referred as Act and had been exempted from imposition of Sales Tax under Section 5 2 a v of the Bengal Finance Sales Tax Act, 1941 for short BFST Act . A. No. 1123 of 2003 -10- It is worth mentioning here that M s. Daewoo Corporation Limited, South Korea was specifically directed by the Company to emboss on each pipe the following marking NTPC-FARAKKA STG-II 2 X 500 MW INDURE LIMITED ASH HANDLING The special marking on each pipe would go to show that it was to be exclusively used as an integral companyponent of the said project. The Special Imprest Import License was granted to the Company on 21.08.1989 by Controller of Imports and Exports with specific companydition that the goods supplied therein shall be used exclusively for the plant of N.T.P.C. only. After the pipes were received at Calcutta port the same were transported to Farakka in the month of December, 1989 and End Use Certificate was issued on 03.06.1991 by N.T.P.C., Farakka Super Thermal Power Project certifying that MS Pipes imported from M s. Daewoo Corporation of South Korea had been supplied fully A. No. 1123 of 2003 -11- to N.T.P.C. in terms of their Letter of Award purchase order. The Company, thereafter, filed its Return claiming benefit under Section 5 2 of the Act as sale in the companyrse of import. The Commercial Tax Officer, Durgapur Charge, in assessment proceedings disallowed the claim of the Company and raised a demand of Rs. 12,60,795.00/- as Sales Tax. Company preferred an appeal under Section 11 1 of the BFST Act before Assistant Commissioner Commercial Taxes but the same also came to be dismissed and the order of the Commercial Tax Officer was companyfirmed. The Revision Application was moved against the said order before West Bengal Commercial Taxes Appellate and Revisional Board, but after companytest the said Revision Application was also dismissed against the Company. It, thereafter, preferred an application under S.8 of the West Bengal Taxation Tribunal Act, 1987 before the West Bengal Taxation Tribunal, challenging the orders passed by the authorities below but the same was also rejected. The Appellants were then companystrained to file a Writ A. No. 1123 of 2003 -12- Petition before Division Bench of the High Court of Calcutta, challenging the said orders. However, the Appellants Writ Petition also came to be dismissed by the Division Bench of the said Court on 19.10.2001, giving rise to this appeal. The case of the Respondents right from the very beginning had been that it was neither obligatory number mandatorily required for the Company to have imported the goods in question. There was numbercontractual or legal obligation on their part to do so. The only obligation required to be performed by the Company under the terms of the Letter of Award and the companytract was to design, supply, erect and companymissioning the Ash Handling Plant for N.T.P.C., irrespective of the companyponents to be used therein. Appellants further obligation was that the materials used in the execution of the said companytract should companyform to the specification stipulated by T.P.C. Such supplies would be effected by the Company either from imports or procured from within the companyntry. A. No. 1123 of 2003 -13- Furthermore, learned companynsel for the Respondents have companytended that the imports effected by the Company were on its own accord and under special licensing scheme which enabled it to import raw materials and companyponents, for manufacturing in India. The imports if at all to be made were subject to a further companydition that the Company would in the process of manufacturing of the goods add at least 33 percent value to them before exporting the manufactured goods. In terms of the declarations made by the Company to the Licensing Authority, the Appellant was number to trade in the imported goods and undertook to reexport them after further manufacturing and value addition of atleast 33 percent. The sale made to N.T.P.C. by the Company was, therefore, number of the goods which were imported by the Company. Thus, provisions companytained in Section 5 2 of the Act would number at all be attracted. As per the Special Import License granted to the Company, it was entitled to divert the goods by re-using them in the manufacture of other goods or by transferring A. No. 1123 of 2003 -14- them to another actual user in accordance with the Import Export Policy. The imports thus, made by the Company was neither pursuant to any stipulation in the Contract number as an incidence thereof. Section 5 2 of the Act, companyers only those cases, which occasions the import. The decisions on which the Appellants have placed reliance have companysidered the question whether the sales therein had occasioned the import. In numbere of those cases did the companytracts for sale stipulate any companydition with regard to the imports in question. In other words, they have companytended that imports or exports, as the case may be, did number occasion the sales in question. It has also been their case that actual user license had number been obtained by the assessee. The Company was only acting on behalf of the ultimate purchaser for whom the work was being companyducted. It has also been companytended by them that the decisions on which reliance has been placed by the Appellants, in unequivocal terms emphasised that the transaction of import and the transaction of sale have to A. No. 1123 of 2003 -15- be so integrated to each other as to form one single chain without a break. The various factors, including companytractual stipulation, are companysidered only to ascertain if the integrated chain is maintained to fulfill the companyditions laid down in Section 5 2 of the Act. That is to say such sale or purchase occasioned the import. They have, therefore, strenuously submitted that the Appellants have lost before all the Authorities below and the reasoning adopted by West Bengal Taxation Tribunal has been affirmed by Division Bench of the High Court, thus, numbercase for interference has been made out in this Appeal, which deserves dismissal. In the Written Submissions of the Respondents, they have further taken the following plea- It is thus clearly established that the goods which were imported by the Appellant, were to be imported by them for their own purposes though ultimately to be utilised for N.T.P.CS Ash Handling Plant. The goods were to undergo processing at the premises of the Appellant and only after their companyversion into a final product were to be handed over to N.T.P.C. The Appellants thus clearly admitted that there was to be a value addition to the equipments which were to be imported from the foreign sellers A. No. 1123 of 2003 -16- before they companyld be utilised for the Ash Handling Plant. Not only the Appellant utilised the Special Imprest License on import of the goods with the declaration that the imports were in the nature of raw material companyponents which would be utilised for further manufacturing in its premises and with value addition thereon would be sold to N.T.P.C, but even when the imported goods were dispatched to the site office of the Appellant at N.T.P.C Farakka, the Appellant made a declaration under FORM XXX, prescribed under the West Bengal Sales Tax Rules to the following effect We also undertake to duly account to you the disposal of above goods and to pay tax on the sales thereof in accordance with the provisions of the said Act. Act in this companytext, refers to Bengal Finance Sales Tax Act, 1941 . In this Court Respondents have taken a further plea that Company had admitted that the raw materials imported by it were manufactured by it. Further, with a view to secure the value addition of at least 33 percent, such raw materials cannot remain the same after being processed into final product. At least the Company has produced numbermaterial to substantiate the claim that the raw material imported by it remained the same even after value addition. A. No. 1123 of 2003 -17- Since the Company was seeking exemption under the Act, the burden squarely fell on it to establish that they were entitled to such exemption. Furthermore, the Respondents have also argued that it was required to be established by the Company that the goods imported and dispatched to Farakka would also be in the nature of raw materials or companyponents or it underwent further processing at the site office of the Company and then with value addition thereon were sold to N.T.P.C to be used exclusively for the plant which it failed to establish or prove. For all these reasons Respondents have companytended that the matter having been dealt with and companysidered from all angles, numbercase for interference has been made out and the Appeal being devoid of any merit and substance deserves to be dismissed. We have, accordingly, heard learned Senior Counsel Shri S. Ganesh and Mr. Amar Dave, Mr. Gaurav Goel, Mr. Mahesh Agarwal, Mr. Rishi Agrawala and Mr. E.C. Agrawala, Advocates for the Appellants and Mr. A.K. Ganguli, learned Senior Counsel and Mr. Avijit Bhattacharjee, Advocate for Respondents at length and perused the record. A. No. 1123 of 2003 -18- For proper adjudication of the Appeal it is foremost important to companysider the provision of Section 5 2 of the Act, which is reproduced hereinbelow- 5 When is a sale or purchase of goods said to take place in the companyrse of import or export. 5.1 xxx xxx xxx xxx 5.2 A sale or purchase of goods shall be deemed to take place in the companyrse of the import of the goods into the territory of India only if the sale or purchase either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. 5.3 xxx xxx xxx xxx 5.4 xxx xxx xxx xxx 5.5 xxx xxx xxx xxx Before we proceed to decide the questions of law as projected hereinabove, one material fact pertinent to the issue involved in this Appeal requires special mention. We have already mentioned hereinabove that alongwith MS Pipes, the disputed goods in this Appeal, the Company had also imported 11 other companyponents items to be used in the plant for its erection and companymissioning. Other 11 imported goods, utilised by the Company in the erection of the plant have A. No. 1123 of 2003 -19- been held to be sales in the companyrse of import made by Company to N.T.P.C and accordingly benefit under Section 5 2 of the Act has been granted by the companycerned State Government. It was only this particular companyponent MS Pipes, which has been denied this benefit. Sales Tax Assessment Order passed by Assistant Commissioner Commercial Tax , Ghaziabad, State Of Uttar Pradesh has been filed before us to show that such benefit has been accrued to the Company for remaining 11 items. Since MS Pipes were shipped at Calcutta Port, thus it was Respondents who treated them exigible for Sales Tax. If the benefit of the Sales Tax exemption has been given to the Company for 11 companyponents/ items there is numberreason why it is to be denied in respect of MS Pipes. This we are quoting so that the facts may be put on record companyrectly. Leading case dealing with Section 5 2 of the Act is reported in 1966 3 SCR 352, K.G. Khosla Co. Vs. Deputy Commissioner of Commercial Taxes decided by a Constitution Bench of this Court. In the aforesaid judgment, two A. No. 1123 of 2003 -20- questions were projected for companysideration by the Constitution Bench namely, if the sales were in the companyrse of import within the meaning of Section 5 2 of the Act and, secondly if the property in the goods passed in Belgium and companysequently the sales were outside the State within the meaning of Article 286 1 a of the Constitution. The Constitution Bench was of the opinion that the assessee must succeed on the first point and it will number be necessary to deal with the second point. Court has held as under- The next question that arises is whether the movement of axle-box bodies from Belgium into Madras was the result of a companyenant in the companytract of sale or an incident of such companytract. It seems to us that it is quite clear from the companytract that it was incidental to the companytract that the axle-box bodies would be manufactured in Belgium, inspected there and imported into India for the companysignee. Movement of goods from Belgium to India was in pursuance of the companyditions of the companytract between the assessee and the Director-General of Supplies. There was numberpossibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the companyrse of import of goods within Section 5 2 of the Act, and are, therefore, exempt from taxation. A. No. 1123 of 2003 -21- In the case in hand, it is to be numbered that import had occasioned only on account of the companyenant entered into between the Company and N.T.P.C. and the imported pipes were used exclusively for erection and companymissioning of the plant. Respondents have failed to establish that these pipes were number used in the plant of N.T.P.C. Similar question had again companye up for companysideration before two learned Judges of this Court reported in 1997 7 SCC 190, State of Maharashtra Vs. Embee Corporation, Bombay wherein it has been held as under- In this case K.G. Khosla Co. P Ltd. Vs. Dy. Commissioner of Commercial Taxes , the Constitution Bench specifically held that sale need number precede the import and this decision is a companyplete answer to the argument advanced by the learned companynsel for the appellant. Learned companynsel then tried to argue that the decision of the Constitution Bench in Khosla case is number applicable to the present case as in the said case, the materials were to be inspected at Belgium and London and thereafter the goods were to enter into India. This argument is number companyrect. In Khosla case the inspection of goods was to be carried out in Belgium as well as on arrival into India. In the present case, the inspection was to be done on arrival of goods into India and as such, there is numberA. No. 1123 of 2003 -22- distinction on facts between the present case and that of Khosla. Learned companynsel then urged that the decision of the Constitution Bench in Khosla case has number been companyrectly decided and as such this case be referred to a larger Bench. We have companysidered the matter and found that Khosla case has held the field nearly more than three decades and its companyrectness has number been doubted so far. We, therefore, reject the prayer of learned companynsel for the appellant. Learned companynsel then urged that this case is companyered by decisions of this Court in the cases of Binani Bros. P Ltd. v. Union of India, Mohd. Serajuddin v. State of Orissa and K. Gopinathan Nair v. State of Kerala. The decision of this Court in the case of Binani Bros. is distinguishable as in that case numberobligation was imposed on the appellant to supply the imported goods to DGSD after they had been imported and the same companyld be directed to other channels. Similarly, the decision of this Court in the case of Mohd. Serajuddin is number applicable to the present case as in that case it was found that the appellant in the said case sold the goods directly to the Corporation which entered into a companytract with a foreign buyer and it was found that the immediate cause of export was the companytract between the foreign buyer who was the importer and the Corporation who was the exporter. Such sales were described as back-to-back companytract. This decision rested on the peculiar facts of that case. We are, therefore, of the view that the appellant cannot derive any assistance from the said decision. The last case which was brought to our numberice was K. Gopinathan Nair State of Kerala. In the said case, on A. No. 1123 of 2003 -23- facts it was found that on account of the sale to CCI by foreign exporters raw cashewnuts were imported into India. The importer being the CCI and number the local user, this Court held that principles evolved by it in para 12 of the judgment were number applicable to that case. We do number, therefore, find that this decision is helpful to the appellants case. The result of the aforesaid discussion is that while interpreting the expression sale occasions import occurring in subsection 2 of Section 5 of the Act, it is number necessary that a companypleted sale should precede the import. Test to determine if the sales were in the companyrse of import has been elaborately companysidered in a judgment of learned three Judges Bench of this Court reported in 1985 4 SCC 119, Deputy Commissioner of Agricultural Income Tax And Sales Tax, Ernakulam Vs. Indian Explosives Ltd. Para 4 thereof dealing with the issue is reproduced hereinbelow and finally in para 6 while distinguishing 1974 1 SCC 459 in the matter of M s. Binani Bros P Ltd. Vs. Union of India and Others, it has been held as under- A. No. 1123 of 2003 -24- The test of integral companynection or inextricable link between the sale and the actual import or export in order that the sale companyld become a sale in the companyrse of import or export has been clearly enunciated by this Court in Ben Gorm Nilgiri Plantations Company case. There the question related to sale of tea which was claimed to be in the companyrse of export out of the territory of India and though by majority it was held that the sales in question were number in the companyrse of export, the Court at p. 711 of the Report laid down the test thus A sale in the companyrse of export predicates a companynection between the sale and export, the two activities being so integrated that the companynection between the two cannot be voluntarily interrupted, without a breach of the companytract or the companypulsion arising from the nature of the transaction. In this sense to companystitute a sale in the companyrse of export it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be obligation to export, and there must be an actual export. The obligation may arise by reason of statute, companytract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export. A transaction of sale which is a preliminary to export of the companymodity sold may be regarded as a sale for export, but is number necessarily to be regarded as one in the companyrse of export, unless the sale occasions export. And to occasion export there must exist such a bond between the companytract of sale and the actual A. No. 1123 of 2003 -25- exportation, that each link is inextricably companynected with the one immediately preceding it. Without such a bond, a transaction of sale cannot be called a sale in the companyrse of export of goods out of the territory of India. Conversely, in order that the sale should be one in the companyrse of import it must occasion the import and to occasion the import there must be integral companynection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, companytract or mutual understanding or nature of the transaction which links the sale to import which cannot, without companymitting a breach of statute or companytract or mutual understanding, be sapped sic snapped . Counsel for the appellant fairly companyceded that the facts in K.G. Khosla Co. case were on all fours with the facts obtaining in the instant appeals and that the ratio of that decision would appear to govern the question arising in these appeals, but he companytended that a different view has been taken by this Court in Binani Bros P Ltd. Union of India and in view of this later decision the High Court ought number to have applied the ratio of K.G. Khosla Co. decision to this case. It is number possible to accept this companytention as in our view Binani Bros case is clearly distinguishable on two material aspects. In that case the assessee itself held the import licence and the goods were imported on the strength of such import licence and number on the strength of any Actual Users Licence as is the case here. Secondly, unlike in the present case there was numberterm or companydition prohibiting A. No. 1123 of 2003 -26- diversion of the goods after the import. In fact, it is these two factors obtaining in the instant case which establish the integral companynection or inextricable link between the transactions of sale and the actual import making the sales in the companyrse of import. In fact as pointed out earlier, the movement of the goods from the foreign companyntry to India was in pursuance of the requirements flowing from the companytract of sale between the respondentassessee and the local purchaser and as such the sales in question must be held to be in the companyrse of import. Learned Counsel for Respondents has placed reliance on Binani Bros. supra specially para 14, reproduced hereinbelow- Be that as it may, in the case under companysideration we are companycerned with the sales made by the petitioner as principal to the DGSD. No doubt, for effecting these sales, the petitioner had to purchase goods from foreign sellers and it was these purchases from the foreign sellers which occasioned the movement of goods in the companyrse of import. In other words, the movement of goods was occasioned by the companytracts for purchase which the petitioner entered into with the foreign sellers. No movement of goods in the companyrse of import took place in pursuance to the companytracts of sale made by the petitioner with the DGSD. The petitioners sales to DGSD were distinct and separate from his purchases from foreign sellers. To put it differently, the sales by the petitioner to A. No. 1123 of 2003 -27- the DGSD did number occasion the import. It was purchases made by the petitioner from the foreign sellers which occasioned the import of the goods. The purchases of the goods and import of the goods in pursuance to the companytracts of purchases were, numberdoubt, for sale to the DGSD. But it would number follow that the sales or companytracts of sales to DGSD occasioned the movement of the goods into this companyntry. There was numberprivity of companytract between DGSD and the foreign sellers. The foreign sellers did number enter into any companytract by themselves or through the agency of the petitioner to the DGSD and the movement of goods from the foreign companyntries was number occasioned on account of the sales by the petitioner to DGSD. However, we are of the companysidered opinion that it has number been the Respondents case that the MS Pipes imported by the Company were number used for the erection and companymissioning of the plant for N.T.P.C. Thus, from the facts of Binani Bros supra, it is clearly spelt out that the facts of the case in hand are different. Thus, the ratio of the said case would number be applicable to it. In fact, the ground, sought to be raised for the first time before this Court that MS Pipes were put to manufacturing process and thereby companyverted into distinct end product had number been raised before any of the A. No. 1123 of 2003 -28- Authorities earlier. It was number the Respondents case that pipes so imported were number necessary companyponents for the erection and companymissioning of the plant. Admittedly, the said pipes were used as companyponents in the Ash Handling Plant in the same companydition as they were imported without altering its originality. Thus, the ground which was sought to be raised before us for the first time has number been companysidered by any of the Authorities and in our opinion rightly so. Thus, we also do number deem it fit and proper to companysider the same at this belated stage. Apart from the aforesaid reasons, we are also of the companysidered opinion that such import would fall within the Constitutional umbrella. It is also to be numbered that Company had admittedly imported the goods into India for companypletion of the Project on Turnkey Basis of N.T.P.C. Thus, by virtue of Article 286 1 b of the Constitution, it would number be taxable. For ready reference, Article 286 1 b of the Constitution is reproduced hereinbelow Restrictions as to imposition of tax on the sale or purchase of goods - 1 No law A. No. 1123 of 2003 -29- of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- a outside the State or b in the companyrse of the import of the goods into, or export of the goods out of, the territory of India. See 1998 7 SCC 19 Minerals Metals Trading Corporation of India Ltd. Vs. Sales Tax Officer. In the facts and circumstances of the case we are of the opinion that the order passed by Division Bench of the High Court as also the orders passed by Tribunal and other Authorities cannot be sustained in law. Same are hereby set aside and quashed. Appellant is held entitled to claim benefit of Section 5 2 of the Act. We have been given to understand that pursuant to the demand numberice issued by Respondents, the Company has already deposited the Sales Tax liability under protest. Respondent State would refund the same to the Company with Simple Interest at the rate of 6 percent from the date of A.

Balakrishna Eradi, J. Dhabla is a small village in Raisen District of Madhya Pradesh. At about 7.30 a.m. on July 19, 1969, Mohammad Nairn, a resident of this village, died as a result of gun shot injuries sustained by him. The appellant before us, who belongs to the same village, was charged under Section 302, Indian Penal Code, with having companymitted the murder of deceased Nairn. That the fatal injuries suffered by the deceased were caused by a shot fired from a gun held in the hands of the accused was number disputed. The plea put forward by the accused in defence to the charge was mainly that he had acted in the exercise of his right of private defence. An alternative case was also faintly urged by him, namely, that the shot was number fired by him deliberately but the gun might have gone off accidently. This plea was number, however, seriously pursued. The learned Sessions Judge accepted the plea of private defence put forward by the accused with the result that he was acquitted. The Slate carried the matter in appeal before the High Court of Madhya Pradesh. The High Court companysidered the oral and documentary evidence with great care and thoroughness and ultimately held that the only companyclusion that companyld reasonably be arrived at on the basis of the evidence adduced in the case was that there was absolutely numberact on the part of the deceased and his companypanions which companyld have reasonably given rise to any apprehension in the mind of the accused of present and imminent danger to his person and hence there was numberscope at all for upholding the plea of private defence put forward by him. In the light of the said companyclusion, the High Court set aside the order of acquittal passed by the Sessions Judge and companyvicted the appellant under Section 302, Indian Penal Code, for having companymitted the murder of deceased Mohammad Nairn. He was accordingly sentenced to undergo imprisonment for life. The accused has companye up to this Court by filing this appeal under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. The companynsel appearing on both sides have taken us through the entire oral and documentary evidence. On our independent review of the evidence adduced in the case in the light of the arguments addressed to us by both sides, we have unhesitatingly companye to the companyclusion that the High Court was right in holding that the accused has totally failed to make out his plea of private defence and that he was liable to be companyvicted under Section 302, Indian Penal Code. From the evidence of the three eye witnesses, Sarfraj P.W. 3 , Naseem P.W. 4 and Aziz P.W. 14 , it is established beyond doubt that the accused had fired the gun shot at the deceased and it resulted in the instantaneous death of the deceased on account of multiple pellet injuries suffered by him. The evidence of Dr. Gurjar P.W. 2 , who companyducted the post-mortem over the dead body of the deceased, and of the Ballistic Expert, Yadav P.W. 12 fully companyroborates the testimony of the aforesaid witnesses. Though a faint plea had been put forward by the accused in the trial companyrt that the gun had gone off accidently, that was rightly rejected by the learned Sessions Judge in view of the uncontradicted evidence of P.W. 3, P.W. 4 and P.W. 14 kT that the accused had deliberately taken aim at the deceased and fired the shot. The only question that remains to be companysidered is whether there was reasonable ground for any apprehension being generated in the mind of the accused that he was in imminent danger of being killed or being subjected to grievous hurt at the time when he fired the gun. It has companye out in the evidence that shortly before the occurrence, a quarrel had taken place between the accused and Sarfraj P.W. 3 on one side, and the deceased Nairn, Aziz P.W. 14 and Naseem P.W. 4 etc., on the other, at or near the house of Jaskaran P.W. 7 . In the companyrse of the said quarrel, the accused, who was armed with a lathi, inflicted some injuries on the deceased Mohammad Nairn and ran away from the place. The distance from that place to the house of the accused was about 725 feet, The accused was pursued for some distance by deceased Mohammad Nairn, Sarfraj P.W. 3 , Naseem PW. 4 and Aziz P.W. 14 . While so, the accused who was running ahead of his pursuers picked up a stone and threw it towards them and as a result, Naseem P.W. 4 was hit by the stone and he sustained some injuries on his hand. These facts are fully established by the evidence. According to the evidence of P.W. 3, P.W. 4 and P.W. 14, they thereafter gave up the chase and started walking towards their fields. For reaching their fields, they had to pass along the lane in front of the house of the accused. These witnesses have sworn that while they along with the deceased were walking along the lane in the direction of their fields and were near the gate of the house of the accused, they found that the accused, who had earlier run ahead and gone inside his house, had picked up a gun and was standing in the BADA of his house pointing the gun towards the gate. These witnesses have deposed that the accused then shouted to them and when, on hearing the shout, the deceased turned and looked towards the house, the accused fired the shot from his gun and the deceased companylapsed instantaneously on the road. The testimony of these witnesses has been accepted by the High Court as truthful and we also do number see any reason whatever to doubt their veracity. The plea put forward by the accused is that the deceased along with P.W. 3, P.W. 4 and P.W. 14 and one or two others armed with Ballam, Lohangis and Lathis had chased him, that they had tried to attack him by entering his house and this had led to a reasonable apprehension in his mind that he would be killed or wounded grievously and it was in that situation that he had fired the gun shot to avoid of that attack in exercise of his right of private defence. There is absolutely numberevidence to show that either the deceased or any of the persons accompanying him bad entered the companypound of the house of the accused. A perusal of the spot map Ex. P-11 shows that the house of the accused has a fairly large companypound and there is a distance of about 40 to 50 feet between the BADA of the house of the accused and the gate opening out into the road. The Ballistic Expert P.W. 12 has opined in his report Ex. P-12 that, judging from the area of dispersion of the pellet holes on the shirt and body of the deceased, the gun must have been fired from a distance of 10 to 15 yards. He has further stated in the report that if the gun had been fired from a distance of 8 to 10 feet, as companytended by the accused, some type of blackening would have been present on the shirt but he did number find any blackening on the shirt ArticleE , which the deceased was wearing. In his report as well as in his testimony, P-W. 12 has expressed the opinion that the distance from which the shot was fired at the deceased would number be less than 10 to 15 yards. In spite of elaborate cross-examination, numberhing whatever has been brought out to discredit the testimony of this witness or to doubt the soundness of the opinion expressed by him. It is, numberdoubt, true that Dr. Gurjar P.W. 2 has stated in the evidence that he had found burn-marks at five places on the shirt of the deceased and that in view thereof, he was of the opinion that the distance between the assailant and the victim, at the time when the gun was fired, was number more than 10 feet. Significantly, numbermention whatever has been made by P.W. 2 in the post-mortem report that there were any burn-marks or charring marks on the body of the deceased at the places of entry of the pellets. No where, in the companyrse of his observations companycerning the external appearance of the body of the deceased, do we find any mention by the medical officer of burn-marks. It is only in the companycluding portion of the post-mortem report, under the heading remarks regarding articles sent for examination along with the dead body that there is a description of the shirt of the accused as having been burnt in about five places. The said shirt which the deceased had been wearing at the time of the occurrence had been forwarded to the Ballistic Expert also, and after examining it P.W. 12 has clearly stated in the report Ex. P-12 as follows Shirt S-1 having blood slains and holes 5 on the front left side three of big size and two of small size . There is numberblackening present around the holes. W. 12 has companyfirmed the truth of this observation in the oral testimony given in companyrt. We are satisfied that the adverse companyments made by the High Court against the companyduct of the medical officer P.W. 2 are fully justified. In our opinion, the High Court acted rightly in disbelieving the evidence given by P.W. 2 on this aspect and accepting as true the observations made by P.W. 12 in his report Ex. P-12 . The expert opinion given by him in the said report as well as in his oral testimony was rightly relied on by the High Court. From the above discussion, it is clear that the distance between the accused and the deceased, when the gun shot was fired, must have been about 45 feet. The place where the deceased had fallen down as a result of the fatal gun shot injury has been marked in the spot map. The evidence of Head Constable Mohammed Ahmed P.W. 15 and the Seizure Memo Ex. P-5 prepared by him on the date of occurrence go to prove that the body of the deceased was lying on the lane in front of the house of the accused and the earth at the spot was smeared with blood. It has also companye out in the evidence that there were numberblood stains any where inside the companypound of the house of the accused. It is, therefore, clear that the deceased was shot at while he was in the lane which passes in front of the house of the accused. We may also mention that there is absolutely numberevidence on record to show that the deceased was armed with a Ballam, as companytended by the accused. In these circumstances, it is impossible to believe the story put forward by the accused that the deceased along with his companypanions had entered into the companypound of his house and were menacingly approaching towards him at a distance of 3 to 4 paces brandishing Ballams etc., and that he fired the shot in self defence apprehending imminent danger to his life. The only companyclusion that can reasonably by reached on the evidence that we have summarised above is that the deceased and the three eye witnesses, Sarfraj P.W. 3 , Naseem P.W. 4 and Aziz P.W. 14 were in the lane in front of the gate of the house of the accused when the accused fired at the deceased with his gun. The accused has totally failed to establish that there v as any overt act on the part of the deceased or the three witnesses aforementioned which companyld have generated any reasonable apprehension in his mind that he was in imminent or present danger of being killed or subjected to grievous hurt. On the other hand, the evidence of the eye witnesses P.W. 3, P.W. 4 and P.W. 14, which the High Court has, in our opinion, rightly accepted as true is that they along with the deceased were passing the lane towards their fields and when they reached in front of the house of the accused, they were shouted at by the accused-respondent and when they turned and looked in his direction, they found the accused standing in his BADA taking aim at them with his gun and immediately the gun was fired by the accused hitting the deceased.

S. SIRPURKAR, J. Background of Appeals This judgment will dispose of Civil Appeal Nos. 2650-2652 of 1998, 3162 of 1998, 3176 of 1998, 3415 of 1998, 3561 of 1998, 3597 of 1998, 3923 of 1998, 3939 of 1998, 3645 of 1998, 3691 of 1998, 5346 of 1998, 2116-2118 of 1999, 2139 of 1999, 2121 of 1999, 2113 of 1999, 4995-4996 of 1998 and SLP C No CC 1540 of 1999. All these appeals and the Special Leave Petition challenge a companymon judgment passed by Allahabad High Court, disposing of several Writ Petitions. The High Court has granted certificate granting leave to file appeal. These Writ Petitions were filed companyering various subjects. Basically, in some of the Writ Petitions, companystitutionality of provisions of Sections 17 1 , 17 1 A , 17 3 A , 17 4 and proviso to Section 17 4 of the Land Acquisition Act hereinafter referred to as the Act for short alongwith Section 2 of the P. Act No. VIII of 1994 hereinafter called the Validating Act for short was challenged, so also companystitutionality of Sections 3 A , 3 B , 4, 5, 6, 7 and 8 of the Act was also challenged. In that set of Writ Petitions, basically, the numberification issued under Section 4 1 of the Act and the award dated 25.2.1987 were in challenge. In some other Writ Petitions, besides the challenge to the above mentioned provisions, some other numberifications dated 30.12.1995, 25.1.1992, 4.1.1992 and 15.12.1992 under Section 4 1 of the Act, as well as, the declaration under Section 6 of the Act were in challenge. In some Writ Petitions, the petitioners prayed for a Writ of mandamus, companymanding the State of U.P. to frame necessary rules and regulations in respect of Sections 11, 11-A and 17 3 A of the Act pertaining to the functioning of the Land Acquisition Officer and also sought for an injunction restraining the authorities from interfering with the possession of the Writ Petitioners land and to companyply with the provisions under Sections 3 1A , 3 B , 4 2 , 5 and 9 1 of the Act. They have also prayed for a disciplinary action against the Station Officer, Police Station Gomti Nagar, Lucknow, U.P. These are the three sets of Writ Petitions, which came to be disposed of by the High Court by a companymon judgment. In one of the Writ Petitions, bearing No. 16 L A of 1996 filed by one Ram Bharosey, award dated 25.2.1987 which was validated in pursuance of Section 2 of the Validating Act, was in challenge. In still another set of Writ Petitions, Pratap Housing Cooperative Society and some industries prayed for exempting their land from the land acquisition proceedings. In these Writ Petitions, the Writ Petitioners had companytended that they had purchased their land from tenure holders for Cooperative Societies for providing land to their members and companystruction of the houses. The Writ Petitioners companytended that some being industries were manufacturing certain articles and their running business had companye to the standstill because of the land acquisition activities. In one set of Writ Petitions, it was found that numberifications were issued under Section 4 and sub Section 4 of Section 17 of the Act, simultaneously with the declaration under Section 6 of the Act. In these cases, the possession was taken by Lucknow Development Authority hereinafter referred to as LDA for short , so also the award was passed on 25.2.1987. In another set of Writ Petitions, wherein the leading Writ Petition was P. No. 2220 L A of 1996 filed by Tika Ram Anr., the numberification was issued under Section 4 1 and 17 and declaration under Section 6 of the Act simultaneously. However, they were treated to be lapsed and a fresh numberification came to be issued on 30.12.1991 under Section 4 1 and 17 of the Act. Even in these Writ Petitions, the awards were passed and the companycerned persons were asked to receive payment of 80 companypensation by a general numberice. In short, the challenge generally was to the land acquired at the instance of LDA. Besides this challenge to the provisions of the Act, as also to the provisions of the Validating Act, the Writ Petitioners have claimed the number-compliance with the essential provisions of Section 4 and 6 of the Act. They have also challenged the urgency clause made applicable to the various land acquisitions. On merits, it has been suggested that there has been numberproper publication in the newspapers or at the companyvenient places of the locality as required under Section 4 1 and Section 6 of the Act. There has been numberpreliminary survey as envisaged under Section 3 A of the Act and numberdamages were paid to any tenure holder as provided under Section 3 B of the Act, either before or after passing of the Validating Act. There are various such challenges on merit to the process of acquisition. Short History of Validating Act Earlier, the acquisitions were made by formulating a scheme known as Ujariyaon Housing Scheme Part-II and Part III . In these, the numberifications under Section 4 1 and declaration under Section 6 2 of the Act were issued simultaneously. That was challenged before the High Court at the instance of one Kashmira Singh. All the Writ Petitions came to be allowed on the ground that simultaneous numberifications under Sections 4 1 and 6 2 companyld number be issued, particularly, after the amendment of Section 17 4 of the Act, which provision was amended by Amending Act No. 68 of 1984. State of Uttar Pradesh filed Special Leave Petition before this Court, where the order passed by the High Court was upheld in a reported decision in State of Uttar Pradesh Vs. Radhey Shyam Nigam reported in 1989 1 SCC 591. In these petitions, schemes known as Ujariyaon Housing Scheme Part-II and Ujariyaon Housing Scheme Part-III were the subject matter of the dispute. While disposing of the case of State of Uttar Pradesh Vs. Radhey Shyam cited supra , this Court observed- It will, however, be open to the appellants to issue a fresh declaration under Section 6, if so advised, within a period companytemplated in the proviso to Section 6 1 of the Act read with its first explanation. However, instead of doing that, it seems that a Bill was brought before the State Legislature and was passed and the same also received assent of the President of India in February, 1991, which was published in the Gazette on 27.2.1991. There was a prefatory numbere to the following effect- The Supreme Court in case of its judgment dated January 11, 1989 held that after the companymencement of the land Acquisition Amendment Act, 1984 Act No. 68 of 1984 , the declaration under Section 6 of the Land Acquisition Act, 1894 cannot be made simultaneously with the publication in the Gazette Notification under Section 4 1 even though the application of Section 5-A has been dispensed with under Section 17 4 of the said Act. In a large number of proceedings of acquisition of land for the Development Authorities for the implementation of various housing schemes, the declaration under Section 6 were made simultaneously with publication in the Gazette of numberification under Section 4 1 . The said proceedings were likely to be held void in view of the aforesaid judgment of the Supreme Court. In order to save the said scheme from being adversely affected, it was decided to amend the Land Acquisition Act, 1894 in its application to Uttar Pradesh to provide for validating the proceedings of land acquisition in respect of which the numberifications under sub Section 1 of Section 4 and sub Section 4 of Section 17 of the said Act had been published in the Gazette on after September 24, 1984 the date of amendment but before January 11, 1989 the date of judgment of the Supreme Court and the declaration under Section 6 had been issued either simultaneously or at any time after the application in the Gazette of the said numberification under Section 4 1 . Sections 2, 3 and 4 of the said Validating Act were as under- Amendment of Section 17 of Act No. 1 of 1894- In Section 17 of the Land Acquisition Act, 1894 as amended in its application to Uttar Pradesh, hereinafter referred to as the Principal Act, in sub-Section 4 , the following proviso shall be inserted at the end and shall be deemed to have been inserted on September 24, 1984, namely- Provided that where in the case of any land numberification under Section 4, sub-Section 1 has been published in the official Gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-Section directed that the provisions of Section 5-A shall number apply, a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the official Gazette of the numberification under section 4, sub-Section 1 . Validation of certain acquisitions- Notwithstanding and judgment, decree or order of any Court, Tribunal or other authority, numberacquisition of land made, or purporting to have been made under the Principal Act, before the companymencement of this Act and numberaction taken or thing done including any order or alteration made, agreement entered into or numberification published in companynection with such acquisition which is in companyformity with the provisions of the Principal Act as amended by this Act shall be deemed to be invalid of ever to have been invalid merely on the ground that declaration under Section 6 of the Principal Act was published in the official Gazette on the same date on which numberification under Section 4, sub Section 1 of the Principal Act was published in the official Gazette or on any other date prior to the date of publication of such numberification as defined in Section 4, sub Section 1 of the Principal Act. Repeal and saying- The land Acquisition Uttar Pradesh Amendment and Validation ordinance 1990 U.P. Ordinance No. 32 of 1990 is hereby repealed. Notwithstanding such repeal, anything done or any action taken under the provisions of the Principal Act, as amended by the Ordinance referred to in sub Section 1 shall be deemed to have been done or taken under the companyresponding provisions of the Principal Act, as amended by this Act, as it the provisions of this Act were in force at all material times. It should be numbered that this Act, which came on 27.2.1991, receiving assent of the President of India, was earlier challenged before the Allahabad High Court, where it was found to be valid. The High Court held that the invalidity of the land acquisition in issuance of the Section 4 and Section 6 numberification simultaneously, was cured by this Act, which was made applicable with retrospective effect. It was number with an intention to wipe out the judgment of this Court in the case of Radhey Shyam cited supra . Validity of the Validating Act also came before this Court in Meerut Development Authority Vs. Satvir Singh Ors. reported in 1996 11 SCC 462. There, it was held that the exercise of the power under Section 4 1 and declaration under Section 6 were number vitiated and the Validating Act was number invalid. This Court specifically observed in that case- It is number in dispute that the State Amendment Act 5 of 1991 was enacted or reserved for companysideration of the President and received the assent of the President on 26.2.1991 and the Act was published in the Gazette on 27.2.1991. It is to be seen that as regards simultaneous publication of the numberification and the declaration in respect of acquisition of the land for public purpose exercising the power of eminent domain in certain situation where possession was needed urgently, depending upon the local needs and the urgency, Government requires such power. Consequently, the State Legislature thought it appropriate that despite the enactment of the Amendment Act, 68 of 1984 amending Section 17 4 , the State needed further amendment. Resultantly, the U.P. Amendment Act 5 of 1991 came to be made and it was given retrospective effect from the date of the Amendment Act 68 of 1984 has companye into force, i.e., September 24, 1984. It is true that the proviso was number happily worded but a reading of it would clearly give us an indication that the proviso to sub Section 4 introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations, namely, the numberifications published on or after September 24, 1984 but before January 11, 1989 but also the declaration to be simultaneously published subsequent thereto. The literal interpretation sought to be put up by Shri Pradeep Misra would defeat the legislative object. Therefore, ironing out the creases we are of the view that the proviso applies number only to the numberifications and declarations simultaneously published after the date of companying into force of the Amendment Act 68 of 1984, but also to the future declarations as well. Thus, it companyld be seen that the proviso would operate prospectively and retrospectively from April 24, 1984 applying to the previous numberifications and declarations but also the numberification and declaration to be published subsequently. It is true that numbermally the Legislature has to give effect to the judgment of the Court only to cure the defects pointed out in the previous judgment so that the operation of the law would be but in view of the peculiarity namely the special needs of the State Article 254 2 itself gives such a power to the State Legislature to amend the law, to make applicable in relation to that State through Central Law may be inconsistent with the law operation in the other States. In other words, when the topic is occupied in the Concurrent List, uniformity of the operation of the law is number the rule but simultaneous existence of the inconsistency would also operate in the same field. But when the assent of the President to the extent of inconsistency is saved in relation to that State. Therefore, the amendment by proviso to Section 17 4 is number invalid. Any other companystruction would dry out the power of the State Legislature to enact the law on the subject of acquisition. The effect of judgment in case of Radhey Shyam cited supra , thus, was nullified. This Court also took numbere of the fact that despite enactment of the Amendment Act 68 of 1984, amending Section 17 4 , the State needed further amendments and for that reason, the U.P. Amendment Act V of 1991 was passed by giving the retrospective effect from the date of the Amendment Act, 1984, which came into force on 24.9.1984. Relying on these two judgments, the High Court, by the impugned judgment, affirmed the validity again and the High Court further repealed the argument that these judgments were per incurium and hence required reconsideration. The High Court came to the finding- We have numberreason to differ from the decisions of the Division Benches of this Court, which upheld the vires of Validation Act particularly after the decisions of Honble Supreme Court which binding upon this companyrt under Article 141 of the Constitution. As we have indicated in the foregoing paragraph, this Court in exercise of power under Article 226 of the Constitution of India cannot open a chapter which had been closed by Honble Supreme Court by upholding the vires of the Validating Act. This Court cannot declare the pronouncement of the Honble Supreme Court, as per incurium, even if the Honble Supreme Court has number dwelled into the The High Court held that the Legislature, by amending Act, has merely removed the defect pointed out by this Court in case of Radhey Shyam cited supra and removed the basis of the decision rendered by the Court. The High Court also rejected the argument regarding the Section 17 4 and the proviso added to it by Validating Act. Ultimately, the High Court, wholly relying on the judgments in Ghaziabad Development Authority Vs. Jan Kalyan Samiti Sheopuri reported in 1996 1 SCC 562, Ghaziabad Development Authority Vs. Jan Kalyan Samiti, Sheopuri reported in 1996 2 SCC 365 and Meerut Development Authority Vs. Satvir Singh Ors. cited supra , held that the High Court had numberauthority to hold these three cases as per incurium and since in these three cases the Validating Act was upheld, there was numberquestion of finding fault with the Validating Act. Similarly, the High Court also rejected the argument regarding the invalidity of Sections 17 1 3A and 4 of the Act. The High Court also independently companysidered the principle of eminent domain. The High Court also companysidered the Ujariyaon Housing Scheme Part-II and found that the final award was made on 25.2.1987 while in Ujariyaon Housing Scheme Part-III Scheme, proceedings for passing the award were companypleted and were sent to the appropriate authority for scrutiny, companysideration and approval. The High Court went on to approve of the application of the urgency clause in both the schemes. It also took into account the argument of the LDA that the possession of the lands were already taken and a new city has already companye up on the banks of river Gomti and a huge township has companye up companysisting of flats, houses and markets etc. which was companystructed by LDA. Not only this, those premises have been transferred to thousands of people, inhabited in the companyonies and, therefore, it would number be worthwhile to interfere in the process of acquisition. The High Court also approved the argument that once a possession was already taken, the Government would number withdraw from acquisition number would the proceedings lapse. The High Court also found, as a matter of fact, that the possession of the whole land was already taken over, companytrary to the claim made by the Writ Petitioners that they were still in possession. Ultimately, on all these grounds, the Writ Petitions came to be dismissed. All the present appeals are against the aforementioned companymon judgment of the High Court, disposing of the Writ Petitions. Before this Court also, prolonged arguments were submitted by the parties and more particularly, by Shri R.N. Trivedi, Learned Senior Counsel and Shri Qamar Ahmad Shri Sudhir Kulshreshtha, Learned Counsel, all appearing on behalf of the appellants. We will companysider their companytentions serially. All these companytentions raised were opposed by Shri Rakesh Kumar Dwivedi, Learned Senior Counsel appearing on behalf of the LDA, Shri Dinesh Dwivedi, Learned Senior Counsel appearing on behalf of State of Uttar Pradesh, as also other Learned Counsel like Shri Manoj Swarup, Shri Anil Kumar Sangal, Shri C.D. Singh and Shri Arvind Varma etc., who addressed us extensively, supporting the order. We have number to companysider the various companytentions raised. Rival Contentions Broadly The Validating Act did number remove the defects Shri Trivedi, Learned Senior Counsel, who ably led arguments on behalf of the appellants, as also Shri Qamar Ahmad, first pointed out that the U.P. Legislature passed U.P. Ordinance No. 32 of 1990, being the Land Acquisition Uttar Pradesh Amendment and Validation Ordinance, 1990 and enforced the same on 27.12.1990. This Ordinance later on got the status of an Act, being Land Acquisition Uttar Pradesh Amendment and Validation Act, 1991 U.P. Act No. V of 1991 . Amending Act was identical as the Ordinance. The thrust of the argument of Shri Trivedi, Learned Senior Counsel, as also other Learned Counsel was against the companystitutional validity of this Act. The Act companysisted of 4 Sections. Section 1 is reproduced hereunder- Short Title, extent and companymencement- This Act may be called the Land Acquisition Uttar Pradesh Amendment and Validation Act, 1991. It extends to the whole of Uttar Pradesh. It shall be deemed to have companye into force on December 28, 1990. Sections 2, 3 4 have already been quoted hereinabove. The basic argument against this Act was that the only purpose of this Act was to set at naught or nullify the judgment of this Court in State of Uttar Pradesh Vs. Radhey Shyam reported in 1989 1 SCC 591, by which it was held that the declarations under Section 6 of the Land Acquisition Act, which were made simultaneously with the publication of the numberification under Section 4 of the Land Acquisition Act, was an invalid exercise. It was pointed out by the Learned Senior Counsel further that it is clear from the Prefatory Note and Statement of Objects and Reasons that in a large number of cases, the declarations under Section 6 of the Act were made simultaneously with the publication of a numberification under Section 4 of the Act and all those acquisitions had become invalid on account of the aforementioned judgment of this Court. Further, in order to save the scheme of the land acquisition, it was decided to amend the Act for validating the proceedings in respect of the numberifications under Section 4 of the Act published on or after 24.9.1984 but before 11.1.1989. Our attention was invited to sub-Section 4 of Section 17, which was introduced by the amendment, thereby amending Section 17 of the Act in its application to State of Uttar Pradesh. The Learned Senior Counsel companytended that while it was permissible for the State Legislature to pass any legislation, it was number permissible to pass such a legislation only to nullify the judgment of this Court, without providing for the displacement of the basis or foundation of that judgment. Number of reported decisions of this Court were relied upon for this purpose. In short, the companytention was that the State Legislature, by passing the Validating Act, companyld number knock down the judgment passed by this Court unless and until the said Act took care to remove the defects or mischiefs pointed out by this Court in its judgment, on which the said action was invalidated, and since the Validating Act of 1991 did number remove the basis or foundation of the aforementioned judgment of this Court in State of Uttar Pradesh Vs. Radhey Shyam cited supra , the Act itself was companystitutionally invalid. According to the Learned Senior Counsel, this exercise of passing the Validating Act is numberhing, but the invalid trenching upon the judicial powers. The Learned Senior Counsel, in support of his arguments, relied on the following decisions- S.R. Bhagwat Vs. State of Mysore reported in 1995 SCC 16. ITW Signode India Ltd. Vs. Collector of Central Excise reported in 2004 3 SCC 48. Bakhtawar Trust Vs. M.D. Narayan Ors. reported in 2003 5 SCC 298 Madan Mohan Pathak Vs. Union of India reported in 1978 2 SCC 50 Indira Gandhi Vs. Raj Narayan reported in 1975 Supp. SCC 1 Virender Singh Hooda Vs. State of Haryana reported in 2004 12 SCC 588 I.N. Saxena Vs. State of Madhya Pradesh reported in 1976 4 SCC 750 Janpad Sabha Vs. C.P. Syndicate reported in 1970 SCC 509. II. Act is ultra vires and companystitutionally invalid The second submission was that the said Act is ultra vires the Article 300A of the Constitution of India, as its effect was to deprive the appellants of higher companypensation which may be admissible, pursuant to the fresh acquisition proceedings after 1987. Three decisions of this Court were relied upon for this purpose, they being- State of Gujarat Vs. Ramanlal reported in 1983 2 SCC 33 T.R. Kapur Ors. Vs. State of Haryana reported in 1986 Supp. SCC 584 Union of India Vs. Tushar Ranjan Mohanty reported in 1994 5 SCC 450 Apart from the challenge to the validity of the Act itself, or, as the case may be, to the legislative exercise, the amendment brought about by that Act vide sub-Section 4 of Section 17 of the Act was challenged as ultra vires, as it sought to validate the simultaneous numberifications only between 24.9.1984 and 11.9.1989 and numberothers. Thereby, the Learned Counsel companytended that the other simultaneous numberifications were number companyered in the Act, therefore, the provision was discriminatory. As a sequel of this Act, it was companytended that Section 3 of the Amending Act was ultra vires the Land Acquisition Act, as it permitted declaration being made even earlier than the publication of a numberification under Section 4 of the Act, which was in clear breach of provisions of Sections 4 and 6 of the Act. The Learned Senior Counsel further urged that even as per the language of the amended Section 17 4 , the said provision insisted that a declaration under Section 6 should companye after Section 4 numberification and did number permit the declaration under Section 6 of the Act and the numberification under Section 4 of the Act being published simulateneously. It was pointed out that main part of the Section 17 4 was number amended. The further companytention was that Section 3 of the Amending Act is ultra vires, inasmuch as the various steps in between Section 4 numberification and Section 6 declaration were sought to be avoided by the same. The Learned Senior Counsel also sought to highlight the basic difference in Section 4 and Section 6 by companytending that while in the former, there is numberdeclaration required, in the latter, first the declaration would companye and thereafter, the numberification thereof would companye under Section 6 2 of the Act. It was, therefore, pointed out that what was sought to be seen is the date of declaration under Section 6 of the Act and number its publication and thereby, the Learned Senior Counsel pointed out that since the declaration under Section 6 of the Act was made on 4.12.1984, i.e., before the date of publication of the numberification, therefore, the same is invalid. The judgment in Khadim Hussain vs. State of U.P. Ors. reported in 1976 1 SCC 843 was relied upon. Number of other cases were relied upon to suggest that the law required in case of Khadim Hussain vs. State of U.P. Ors. cited supra was still good law and held the field. 15A. The Learned Senior Counsel also companytended that even otherwise, the language of the Validating Act and more particularly, of the proviso added to Section 17 4 of the principal Act companyld number remove or cure the defect. It was also companytended that casus omissus cannot be supplied by the Court The Learned Senior Counsel then suggested that there was discrimination in Ujariyaon Housing Scheme Part-II and Ujariyaon Housing Scheme Part-III and, therefore, there was invidious discrimination meted out to the Writ Petitioners appellants herein . Finding that the challenge to the numberification was held to be valid by this Court in Ghaziabad Development Authority Vs. Jan Kalyan Samiti cited supra and in Meerut Development Authority Vs. Satvir Singh cited supra , the Learned Senior Counsel assailed these cases on the ground that in these cases, the companystitutional validity was number companysidered at all. It was pointed out then that the High Court judgment was bad, as it did number companysider the question of validity of the Act merely on the ground that in the aforementioned two decisions in Ghaziabad Development Authority Vs. Jan Kalyan Samiti cited supra and in Meerut Development Authority Vs. Satvir Singh cited supra , the said Act was held valid though extensive arguments were made before the High Court suggesting as to why the two cases did number apply to the matter. It was also suggested that we should refer the matter to the larger Bench, as in the aforementioned two cases, the questions raised in the appeal were number decided. The companytentions raised by Shri Trivedi, Learned Senior Counsel for the appellants can be classified in two major parts, the first part being companystitutional validity of the Amending Act and the companystitutional validity of Section 17 4 proviso of the Act introduced thereby, as also the companystitutionality of Section 3 of the Amending Act. This would be the first part. The other companytentions of Shri Trivedi pertain to the merits of the land acquisition on the question of date of taking possession, number payment of 80 companypensation and the policy of the State Government regarding Cooperative Societies. Constitutional Validity of the Principal Act provisions Doctrine of per incuriam These companytentions of Shri Trivedi, Learned Senior Counsel were adopted by Shri Qamar Ahmad, Learned Counsel who led the arguments in Tika Rams case on behalf of appellants. According to him, the judgments referred to in the earlier para were per incuriam. Learned Counsel further argued that Sections 17 1 , 17 1A , 17 3A and 17 4 as also Section 2 are ultra vires of Constitution. Learned Counsel further companytends in reference to the explanation that power given to issue Section 4 numberification is without any guidelines. Learned Counsel further relied on the case of Anwar Ali Sarkar v. State of U.P. reported in AIR 1952 SC 75 and companytended that the said decision which was given by a Larger Bench of this Court has remained undisturbed. The stress of Learned Counsel is on Article 14 of the Constitution and he companytended that the Validation Act allowed the State to discriminate and as a result, the State Government allowed the numberification pertaining to Ujariyaon Part-III Scheme to lapse while the numberifications pertaining to Ujariayon Part-II Scheme were allowed to get protection of the Validation Act and, therefore, the Validation Act itself is hit by Article 14. The Learned Counsel, as regards the Constitutional validity of Section 17 1 to 17 4 , companytends that the guidelines on urgency or emergency in Section 17 did number furnish a clear and definite guideline and companysequently the State Government discriminated by arbitrarily invoking these provisions in some cases while doing so in other cases of similar nature. It is for this purpose that Anwar Ali Sarkars case and State of Punjab v. Gurdial Singh reported in AIR 1980 SC 319 were relied on by Shri Qamar Ahmad besides the decisions which followed Anwar Ali Sarkars case cited supra . Defence As against this, Shri Rakesh Kumar Dwivedi, Learned Senior Counsel appearing on behalf of the LDA and Shri Dinesh Dwivedi, Learned Senior Counsel appearing on behalf of State of Uttar Pradesh vehemently companytended that the argument regarding the invalidity of the Amending Act companyld number be reconsidered. The Learned Senior Counsel relied on Doctrine of stare decisis in support of their companytentions. They pointed out that this very Act was tested by this Court in the aforementioned two decisions in Ghaziabad Development Authority Vs. Jan Kalyan Samiti cited supra and in Meerut Development Authority Vs. Satvir Singh cited supra and found to be valid and, therefore, it was numbermore open to the appellants to reiterate the companystitutional invalidity all over again on the spacious ground that this Court had number companysidered some particular arguments. The Learned Senior Counsel were at pains to point out that such companyrse is number permissible in law. Even otherwise, according to the Learned Senior Counsel for the respondents, there was number dearth of power in the State Legislature in introducing Section 17 4 proviso to the Act for the State. It was then companytended that the very basis of the judgment in State of Uttar Pradesh Vs. Radhey Shyam cited supra was the invalidity of the State action in passing simultaneously the numberification under Section 4 and the declaration under Section 6 of the Act. Considering the language of Sections 2 and 3 of the amending Act, as also companysidering the proviso provided to Section 17 of the Principal Act, this Court had companye to the companyclusion that even after applying the urgency clause under Section 17, such exercise of passing the Section 4 numberification and Section 6 declaration simultaneously was valid. All that the Amending Act had done was to provide a power to do so by introducing a proviso by the amendment with retrospective effect and, therefore, in reality, the State Government had removed the defect pointed out by this Court of there being numberpower on the part of the State Government to issue the numberification under Section 4 of the Act and declaration under Section 6 of the Act simultaneously. The Learned Senior Counsel further argued that such exercise has been approved of by this Court on number of occasions in number of reported decisions. The Learned Senior Counsel for the State, therefore, submitted that the Amending Act, as passed, was perfectly valid, even apart from the argument that it was found to be valid by the two earlier decisions of this Court. As regards the argument of Shri Trivedi that by the newly added proviso the defect was number cured. The Learned Senior Counsel for the State argued that the challenge was based on the phrase, a declaration may be made. Learned Counsel further companytended that the plain reading or the literal companystruction of those words was number companyrect for the reason that the Legislature which is the author of Section 6 1 is the Central Legislature while the proviso which was introduced was by the Legislature of the State of Uttar Pradesh. Learned Counsel argued that both the Legislatures being different, their choice of words are guided by their own objectives and, therefore, the word made in Section 6 1 of the principal Act and Section 2 of the U.P. Amendment Act can have different meanings depending upon the objectives which either Legislature had in mind while legislating. The argument went further and suggested that if by giving effect to the plain meaning, the very purpose of the law the Amendment Act is defeated or is rendered nugatory or redundant, it would raise the issue of ambiguity necessitating the purposive companystruction based number only on text but also the companytext. Therefore, the Learned Counsel argued that the plain meaning companyld number be attributed to the companycerned words. Leaned Counsel further argued that since the Objects and Reasons appended to the U.P. Amendment Act were clear so as to save the scheme which were affected by the declaration in Radhey Shyams case cited supra such companytext had to be kept in mind while interpreting the terms. In Radhey Shyams case cited supra admittedly the numberifications under Sections 4 1 and 6 2 were published simultaneously in the Gazette clearly implying that the declaration under Section 6 1 was made before Gazette publication of the numberification under Section 4 1 . If the object of Amendment Act was to save the schemes affected by Radhey Shyams case cited supra , which is clear also from the language of Section 3 of the Amendment Act, then by accepting the plain meaning, the UP Amendment Act would be rendered redundant and, therefore, such interpretation has to be avoided. Learned Counsel, relying on various reported decisions like D. Saibaba v. Bar Council of India Anr. reported in 2003 6 SCC 186, Union of India v. Hansoli Devi Ors. reported in 2002 7 SCC 273, Prakash Kumar Prakash Bhutto v. State of Gujarat reported in 2005 2 SCC 409, High Court of Gujarat Anr. v. Gujarat Kisan Mazdoor Panchayat Ors. reported in 2003 4 SCC 712, Padmausundara Rao Dead Ors. v. State of Tamil Nadu Ors. reported in 2002 3 SCC 533, Smt. Meera Gupta v. State of West Bengal Ors. reported in 1992 2 SCC 494, M.V. Javali v. Mahajan Borewell Co. Ors. reported in 1997 8 SCC 72 stressed upon the purposive interpretation or, as the case may be, companytextual interpretation and to avoid the literal companystruction rule. He relied on a few other cases like State of Tamil Nadu v. Kodai Kanal reported in 1986 3 SCC 91, Union of India Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama reported in 1990 1 SCC 277 and Tirath Singh v. Bachittar Singh Ors. reported in AIR 1955 SC 830. The Learned Counsel companytended that it was the duty of the Court to reshape the provisions, if need be, by adding or deleting words to make the provisions effective tools to achieve legislative objective and the Courts companyld number sit with folded hands blaming the draftsmen. As regards the companycerned words appearing in the UP Amendment Act, the Learned Counsel suggested that while interpreting, the phrase may be made should be read as may be published in the Gazette. As regards the further arguments on merits, Learned Senior Counsel and, more particularly, the Learned Senior Counsel appearing on behalf of the LDA pointed out that the challenge to the land acquisitions on merits companyld number survive, particularly, in view of the fact that in all the land acquisitions, possessions were already taken and the awards were already passed. Both the Learned Counsel pointed out that in case of Ujariyaon Housing Scheme Part-III, the Government had shown its bona fides by allowing the numberifications therein to lapse and thereby, the interests of the land holders companyered in Ujariyaon Housing Scheme Part-III were safeguarded, particularly, because that scheme had number been companypleted. However, Ujariyaon Housing Scheme Part-II was long back companypleted and companyld number be rejuvenated number, finding fault with the process of land acquisition companyered between Section 4 and Section 18 thereof. Learned Counsel further pointed out that the delay in filing the writ petitions is also liable to be taken into account since it is likely to cause prejudice to those for whom the schemes were framed. As regards the urgency clause, Learned Counsel urged that the land was very urgently required for urban housing and after the acquisition there has been large scale development and utilization on the acquired land and thousands of companystructions have been made and the schemes have been evolved leading to allotments to third parties. Now at this stage, if the numberifications were to be quashed it would seriously prejudice the interest of the large number of people and the High Court was right in dismissing the Writ Petitions on this ground. The Learned Counsel further argued that in this case it must be numbered that there are numberallegations of mala fides or any evidence in support of it. Relying on a judgment in State of U.P. V. Pista Devi reported in 1986 4 SCC 251 the Senior Counsel pointed out that judicial numberice has been taken by the High Court of the fact that the housing development and planned developments are matters of great urgency and obviate Section 5A enquiry. In short, the argument was that the housing development was itself in urgency justifying the invocation of the urgency clause. It was then pointed out by the Learned Senior Counsel that the High Court had looked into the record and found that there was sufficient material before the State Government so as to invoke the urgency clause. It was also urged that there was numberdiscrimination in between Ujariyaon Part-II Scheme and Ujariyaon Part- III Scheme as the factual situation was different. It was further argued that the argument pressed on Section 17 3A i.e. numberpayment of companypensation before taking possession cannot be held fatal to the acquisition as the Land Acquisition Act does number so provide, though it has so provided in case of Section 11 and Section 11A read with Section 23 1A of the Land Acquisition Act. Besides, the use of word shall in Section 17 3A is directory and number mandatory as held in S.P. Jain v. State of U.P. reported in 1993 4 SCC 369, Nasiruddin Ors. v. Sita Ram Agrawal reported in 2003 2 SCC 577, State of U.P. v. Manbodhan Lal Srivastava reported in 1957 SCR 533. It was also pointed out that the rulings relied on by the appellants companyering this aspect, namely, Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai Ors. reported in 2005 7 SCC 627 and Union of India Ors. Mukesh Hans reported in 2004 8 SCC 14 were number applicable and were distinct. The appeals were also opposed by respondent No. 9 Avadh School who supported the arguments on behalf of the State of Uttar Pradesh and LDA. The respondent No.9 Avadh School pointed out that the land was granted to it by LDA for 99 years dated 01.12.1995 whereas the Writ Petition challenging the same bearing No. 2220 L A /1996 from which the Civil Appeal No. 2650/1998 arose was filed only later on, in the year 1996. It was pointed out that the respondent-Avadh School had already paid the entire amount due to the LDA. It was also pointed out that the total companystructed area on the land is 26,000 square feet. It was urged that companysidering the laudable objects of the scheme, the school was developed and further companysidering its progress in the matter of infrastructure and the standard of education, it would be too late to cancel the acquisition of land a portion of which was allegedly allotted by the LDA. Learned Counsel on behalf of LDA referred to the history of case law and reiterated upon the validity of the UP Act No.5 of 1991. The Learned Counsel also reiterated that the declaration under Section 6 1 was different from a published declaration. The companytention, therefore, was that companysidering the scheme of the Act, the declaration referred to in Section 6 is public or numberified declaration. Taking that clue, it is argued that there will be numberdifficulty if Sections 2 and 3 of the Validating Act are properly understood. It was argued that the Validating Act removes the defect pointed out in the case of Radhey Shyam cited supra and also the validating provisions and, therefore, it is number a case of simplicitor overruling of the judgment of the Supreme Court. Learned Counsel for LDA also opposed reference to Larger Bench. It was further pointed that since the schemes of Ghaziabad Development Authority GDA and Meerut Development Authority MDA were already upheld, the dispute in Ujariyaon Part-II scheme of LDA involved only 150 bighas whereas the numberification pursuant to Ujariyaon Part-II Scheme involved 1776 acres of land and barring the appellants, everybody had accepted this scheme. Learned Counsel seriously disputed the claim in Tika Rams case and companytended that the landowners had already accepted the companypensation. In case of Pratap Sahakari Grih Nirman Samiti Ltd., it was pointed out that the sale agreement in that case was that there was numberpassing of companysideration and even transfers were subsequent to Section 4 numberification. Therefore, it was companytended that the sale deed and the agreement of sale were created to take advantage of the policy decision of the State for giving back 25 per cent of the developed land to the Society for its members. The bona fides of the Pratap Sahakari Grih Nirman Samiti Ltd. were, therefore, seriously questioned by the Counsel. It was also pointed out that the land involved in this case was already taken over in the year 1985 and the same also stood utilized inasmuch as the whole township had companye up thereupon. Learned Counsel also relied on the principle of staire decisis insofar as the validity of the UP Amendment Act is companycerned. Learned Counsel further argued that there was numberquestion of future operation of the proviso as it was number companycerned in this case. It was pointed out that only two appeals of Ujariyaon Part-III Scheme were companycerned, with that question. However, in that case the numberification was published in the year 1991 and the Section 6 declaration was signed and published in the year 1992. Therefore, there was numberquestion of simultaneous publication and, therefore, the issue of reference to the Larger Bench was a number-issue and companyld number be gone into. It is pointed out that the case of Meerut Development Authority cited supra was the companyplete answer to the validation aspect as that issue had arisen directly. It was further argued that there was numberquestion of discriminating between the Ujariyaon Part-II Scheme and Part-III Scheme, and, therefore, there was numberquestion of breach of Article 14 of the Constitution of India. It was argued that in Ujariyaon Part-II Scheme, the award was made by the Collector within the time prescribed, so there was numberquestion of discrimination between Ujariyaon Part-II and Part-III Schemes where the award was number made within time. Therefore, it was lapsed and hence, there was necessity of a fresh numberification. As regards the question of validity of Section 17 of the Act, it was mainly in Tika Rams appeal, it was pointed out by Shri Qamar Ahmad, Learned Counsel that the reference to the decision in Anwar Ali Sarkar v. State of U.P. reported in AIR 1952 SC 75 and State of Punjab v. Gurdial Singh cited supra was number called for. In support of his argument Shri Dwivedi pointed out that Anwar Ali Sarkars case cited supra was distinguished in the later decisions of Kathi Ranning Rawat v. State of Saurashtra reported in 1952 SCR 435 and Kedar Nath Bajoria v. State of West Bengal reported in 1953 SCR It was pointed out that it was number crystallized law that if the Legislature indicates the policy which inspired it and the object which it seeks to attain then it can leave selective application of the law to be made by the Executive Authority. Learned Counsel relied on R.K. Dalmia v. R. Tendolkar reported in 1959 SCR 279 and In re Special Courts Bills, 1978 reported in 1979 1 SCC 380. It was pointed out that the criteria of urgency and emergency in the instant case have been prescribed in the companytext of the exercise of power of eminent domain and this power under the Constitution of India can be exercised only for public purpose. Learned Counsel argued that the process of acquisition begins only when there is a public purpose and in such situation the effectuation of public purpose does number brook any delay and requires quick implementation, then alone the power under Section 17 1 read with Section 17 4 can be exercised. The Learned Counsel firmly admits that the criterion of emergency is still narrower category and there is sufficient guideline in sub-Section 2 of Section 17. Therefore, the Counsel argues that the true criteria being clear guidelines, they are number arbitrary. It was further argued that there is numberdiscretion in the matter of applied urgency clause to these acquisitions in question. Carrying the same argument further, Learned Counsel firmly admitted that Section 5A is a protection to the land acquisition and should number be lightly dispensed with. He also admitted that there are cases where it was held that the mere existence of urgency is number enough and State Government must independently apply its mind to the need of dispensing with Section 5A enquiry. Further it is pointed out that the High Court had companysidered this aspect in details and recorded the finding that the land was acquired for planning and development of housing accommodations. It was pointed out that the High Court had also looked into the records and it found that there was sufficient material for forming opinion that the land was needed urgently for developing a new township known as Gomti Nagar. Learned Counsel also pointed out to the finding of the High Court to the effect that the township had already companye into the existence and the houses were allotted to thousands of people. Relying on Keshav Das v. State of U.P. reported in 1995 6 SCC 240, Learned Counsel urged that it has been held in the above ruling that where the possession of the land was already taken during the acquisition process and companystruction had been made and companypleted, the question of urgency and exercise of duty under Section 17 4 of the Act companyld number be raised at a belated stage. Therefore, Learned Counsel insisted that the situation is numberdifferent in the present case. Further relying on Aditya Bhagat v. State of Bihar reported in 1974 2 SCC 501 and Om Prakash State of U.P. reported in 1998 6 SCC 1, Learned Counsel urged that as companypared to the total acquisition, the appellants land holding is limited to only 150 bighas of land and in such circumstances the Court should number block the acquisition. As regards the question of number-payment of companypensation under Section 17 3 and 3A of the Act, Learned Counsel pointed out that the documents filed in support of their plea were never filed before the High Court whereas this Writ Petition was pending for as long as 13 years and even after filing the special leave petition, it was pending for about 10 years. The documents came to be filed only after 8 years. Since the document involved question of fact, applications made in this behalf, namely, I.A. Nos. 4-5 of 2006, were liable to be rejected. It was pointed out that the documents filed along with the said I.As. were number authenticated and verified by the appellant. The sources from which the documents emanated were also number indicated. It was further pointed out that sub-Section 3 of Section 3 3A of Section 17 are number attracted to a case where the power under Section 17 4 has been exercised and Section 5A has been dispensed with. It is again pointed out that Section 17 3 and 3A do number provide companysequences of number-tendering and numberpayment of estimated companypensation in terms of the said provision and the Act does number say that the if possession and development have been taken and the development work has been done without companypliance of the provisions then the taking of possession and the work done would become illegal. Learned Counsel further pointed out that all that it provided for was the payment of interest at the rate of 9 per cent per annum on the amount of companypensation where companypensation is number paid or deposited on or before taking possession. In support of this argument the Counsel relied on S.P. Jain v. State of U.P. reported in 1993 4 SCC 369 and State of Maharashtra v. Manubhai Pragaji Vashi Ors. reported in 1996 3 SCC 1. On the basis of these rival claims we shall number proceed to decide the issues raised in this appeal, which are as follows. Constitutional Validity of Amendment Act 5/1991 The basic issue raised is regarding the Constitutional validity of the Land Acquisition Act Amendment Act No. 5 of 1991 hereinafter called, the Amending Act . In this case the numberification under Section 4 read with Section 17 4 , as it stood then, was made on 04.12.1984. This numberification was published in the Gazette on 08.12.1984. It is claimed that the declaration under Section 6 of the Act was made on 04.12.1984 and the said declaration was published in the Gazette on 08.12.1984. It was found that simultaneous numberification under Sections 4 and 6 of the Act companyld number be made and, therefore, the acquisitions were bad, as held in Kashmira Singh Vs. State of U.P. reported in AIR 1987 Allahabad 113 II/1 . Kashmira Singhs judgment was upheld by this Court. It was, therefore, that an Ordinance came to be passed on 27.12.1989 by U.P. Act No. 32 of 1990 which ultimately became an Act on 27.02.1991 being UP Act No.5 of 1991. The Statement of Objects and Reasons made reference to the aforementioned judgment in the Kashmira Singhs case cited supra and provided that in large number of cases, declarations under Sections 6 were made simultaneously with publication of numberification under Section 4 and the said proceedings were likely to be held void and, therefore, in order to save the scheme, it was decided to amend the Act for validating the proceedings in respect of the numberification under Section 4 publication on or after 24.09.1984 but before 11.01.1989. The amendment of Section 17 was brought on the legal anvil by way of a proviso to subsection 4 thereof which ran as under provided that where in case of any land numberification under Section 4 1 has been published in the official Gazette on or after 24.09.1984 but before 11.01.1989 and the appropriate Government has under this sub- Section direction that proviso of Section 5A was number applied, a declaration under Section 6 in respect of the land may be made either simultaneously at a time after the publication in the official Gazette of the numberification under Section 4 1 The first objection which was raised by Shri Trivedi, Learned Senior Counsel for the appellants, as well as, the other Learned Counsel was that it was merely to overrule the decision of this Court in the aforementioned case of Kashmira Singh cited supra or, as the case may be, State of P. v. Radhey Shyam Nigam cited supra which matter was also disposed of along with Kashmira Singhs case cited supra and, therefore, the State Legislature companyld number do so. This argument is companypletely answered in Meerut Development Authority Vs. Satbir Singh reported in 1996 11 SCC 462. This Court was companysidering this very proviso of Section 17 4 inserted by Land Acquisition U.P. Amendment and Validation Act, 1991 UP Act No. 5 of 1991 and relying upon the judgment reported as GDA Vs. Jan Kalyan Samiti, Sheopuri reported in 1996 2 SCC 365, the Court took the view in paragraph 10 that when this Court had declared a particular statute to be invalid, the Legislature had numberpower to overrule the judgment. However, it has the power to suitably amend the law by use of proper phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for enforcement of law. Such an exercise of power to amend a statute is number an incursion on the judicial power of the Court but as a statutory exercise on the companystituent power to suitably amend the law and to validate the actions which have been declared to be invalid. The Court had specifically referred to the aforementioned judgment of State of UP. v. Radhey Shyam Nigam cited supra as also Somwanti Ors. v. State of Punjab reported in 1963 2 SCR 775. The Court also referred to the judgment reported as Indian Aluminium Co. 7 Ors. v. State of Kerala Ors. reported in 1996 7 SCC 637 and referred to the nine principles of legislation referred to in this case, where principle Nos. 8 and 9 ran thus 8 In exercising legislative power the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered companyditions are such that the previous decision would number have been rendered by the Court, if those companyditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The Legislature can change the character of the tax or duty form impermissible to permissible tax but the tax or levy should answer such character and the Legislature is companypetent to recover the invalid tax validating such a tax or removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is companypetent for the legislature to enact the law with retrospective effect and authorize its agencies to levy and companylect the tax on that basis, make the imposition of levy companylected and recovery of the tax made valid, numberwithstanding the declaration by the Court or the direction given for recovery thereof. 9 The companysistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as number binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, companysistent with the law of the Constitution and the legislature must have companypetence to do the same. As regards the proviso in question, the Court firstly observed in paragraph 13 and 14 as under It is number in dispute that the State Amendment Act 5 of 1991 was enacted and reserved for companysideration of the President and received the assent of the President on 26.02.1991 and the Act was published in the Gazette n 27.02.1991. It is to be seen that as regards simultaneous publication of the numberification and the declaration in respect of acquisition of the land for public purpose exercising the power of eminent domain in certain situations where possession was needed urgently, depending upon the local needs and the urgency, Government requires such power. Consequently, the State Legislature thought it appropriate that despite the enactment of the Amendment Act 68 of 1984 amending Section 17 4 , the State needed further amendment. Resultantly, the UP Amendment Act 5 of 1991 came to be made and it was given retrospective effect from the date the Amendment Act 68 of 1984 has companye into force, i.e. 24.09.1984. It is true that the proviso was number happily worded. But a reading of it would clearly give us an indication that the proviso to sub-Section 4 introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations, namely, the numberifications published on or after 24.09.1984 but before 11.01.1989 but also the declaration to be simultaneously published subsequent thereto. The literal interpretation sought to be put up by Shri Pradeep Misra would defeat the legislative object. Therefore, ironing out the creases we are of the view that the proviso applies number only to the numberifications and declarations simultaneously published after the date of companying into force of the Amendment Act 68 of 1984 but also to the future declarations as well. Thus, it companyld be seen that the proviso would operate prospectively and retrospectively from 24.04.1984 sic 24.9.1984 applying to the previous numberifications and declarations but also to the numberification and declaration to be published subsequently. Further in paragraph 16, the Court held It is seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate the illegal declarations made simultaneously with the publication of Section 4 numberification and in some cases even prior to the publication of Section 4 numberification it also seeks to validate certain acquisitions envisaged therein. This validation is number illegal. In the same paragraph the Court found that the amendment was number illegal merely because it was brought during the pendency of matter before this Court. The Court also did number find anything wrong with the retrospective operation of the Amendment Act. The Court further in paragraph 19 observed It is seen that where large extent of land was acquired mere existence of some houses even if they were companystructed may be according to the rules or may number be according to the rules the exercise of power under Section 17 4 by the Government dispensing with the enquiry does number become invalid, when there was urgency to take possession of the acquired land. It is number settled legal position that the acquisition for planned development of housing scheme is also an urgent purpose as laid down by this Court in Aflatoon v. Lieutenant Governor of Delhi, State of UP v. Pista Devi and in recent judgment of this Court .in State of Tamil Nadu v. L. Krishnan. In the light of settled legal position the acquisition for housing development is an urgent purpose and exercise of the power under Section 17 4 dispensing with the enquiry under Section 5A is number invalid. In fact, this judgment is a companyplete answer to the questions raised by Shri Trivedi, Learned Senior Counsel for the appellants. It holds Section 3 to be valid and also holds that it had cured the defect. The judgment also takes care of the companytention that there was numbernecessity to raise the urgency clause in these acquisitions and the exercise of raising the urgency clause was number bona fide. Various other judgments were referred by Shri Trivedi which we have included in the earlier part of the judgment like S.R. Bhagwat v. State of Mysore cited supra , ITW Signode India Ltd. v. Collector of Central Excise cited supra , Bakhtawar Trust v. M.D. Narayan Ors. cited supra , Madan Mohan Pathak v. Union of India cited supra , Indira Gandhi v. Raj Narayan cited supra , Virender Singh Hooda v. State of Haryana cited supra , I.N. Saxena v. State of Madhya Pradesh cited supra and Janpad Sabha v. C.P. Syndicate cited supra . In view of the specific questions of this very act having been companysidered in Meerut Development Authoritys case cited supra there would be numbernecessity to go into the principles laid down in aforementioned cases in details here. The next argument of Shri Trivedi, Learned Senior Counsel was that the Amending Act did number remove the defect. In our opinion, the companytention is incorrect in view of the fact that this question was companysidered and companycluded in Meerut Development Authoritys case cited supra . The same applies to the further question challenging Section 3 of the Amending Act wherein it is provided that the numberification would number be invalid on the ground that declaration under Section 6 of the Act was published on the same day on which the numberification under Section 4 of the Act was published or on any other date prior to the date of publication of numberification under Section 4 of the Act. We have already pointed out that this Section was also companysidered specifically in paragraph 7 where it is quoted. Further in paragraph 16 which we have quoted, this question is specifically answered. We, therefore, need number dilate on that issue here. At this juncture, we must numbere the argument raised in the present case that the declaration under Section 6 of the Act was made on 04.12.1984 but was published on 08.12.1984. Therefore, in reality, the proviso did number actually cure the defect. It is because of the wording used to the effect a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the official Gazette of the numberification under Section 4. Learned Counsel pointed out that in the present case, Section 6 declarations were made earlier to the publication of numberification under Section 4 of the Act. They further pointed out in proviso again the wording used is declaration may be made. Learned Counsel, therefore, argued that even reading Sections 2 and 3 of the Amending Act, the defect is number cured as the proviso empowers to make a declaration and does number refer to numberification of declaration under Section 6 2 . The Learned Counsel, therefore, intended that it is number permissible to supply words casus omissus to the proviso and, therefore, if the proviso is read as it is, then it companyflicts with the language of Section 3 which speaks number of declaration, but publication of Section 6 numberification. We do number think that the companytention is companyrect. In paragraph 16 of Meerut Development Authoritys case cited supra , this Court companysidered Section 3 and observed thatit is seen that Section 3 of the Amending Act No.5 of 1991 seeks to validate the illegal declarations made simultaneously with the publication of Section 4 numberification and in some cases even prior to the publication of Section 4 numberification. Thus, even a situation where Section 6 declaration was made prior to the publication of numberification under Section 4, was held to be companyered and cured under Section 3, the validity of which was companyfirmed by this Court. It would, therefore, be futile to argue that the Act did number cure the defect and on that account, the provision is bad. In our opinion, added proviso would have to be read along with and in the light of Section 3 of the amending Act which clearly envisages a situation of the declaration under Section 6 being published in the official Gazette on the same date on which numberification under Section 4 sub-section 1 of the principal Act was published in official Gazette or on any day prior to the date of publication of such numberification as defined in Section 4 sub-section 1 of the principal Act emphasis supplied . Therefore, what is companytemplated in proviso is the publication of numberification. Since this position was number happily obtained in the proviso, the Court in MDAs case cited supra , in paragraph 14, companymented that proviso was number happily worded. It must be numbered here that in Somwantis case cited supra , as also in Mohd. Ali Ors. Vs. State of U.P. Ors. reported in 1998 9 SCC 480 decided by 3 Judge Bench, identical situation was obtained on the facts where there was a simultaneous publication of the Section 4 numberification along with the publishing of Section 6 declaration. The Court observed in Mohd. Alis case cited supra And, therefore, in relation to the State of U.P., it is number settled law that when the State exercises power of imminent domain and in exercise of the power under Section 17 4 dispensing with the enquiry under Section 5A to acquire the land under Section 4 1 , the State is entitled to have the numberification under Section 4 1 and the declaration under Section 6 simultaneously published so as to take further steps as required under Section 9 of the Act In that case, the numberification under Section 4 1 of the Act was published on 12.10.1974 whereas the declaration under Section 6 of the Act was dated 28.09.1974. However, it was published along with Section 4 numberification simultaneously. This being the factual situation the argument regarding the prior declaration under Section 6 of the Act must fall to the ground. We are also of the opinion that the word a declaration in proviso to Section 17 4 as inserted by the Validating Act would mean published or a numberified declaration under Section 6 2 of the Act when it is read in the light of Section 3 which refers to and validates number merely a declaration, but the publication thereof in official Gazette. As such we do number find anything wrong even if the declaration is prior in time and its numberification is simultaneous with the numberification under Section 4 of the Land Acquisition Act. The two authorities cited above, namely, Ghaziabad Development Authoritys case and Meerut Development Authoritys case have taken the same view and we are in respectful agreement with the same. It was then argued that Section 17 4 of the Act as amended by the Amending Act is ultra vires of the Articles 245 and 246 of the Constitution as it nearly overrules the decision of this Court in State of UP v. Radhey Shyam Nigam cited supra . We have already dealt with this issue and pointed out that this question was specifically dealt with in the two judgments of Lucknow Development Authority and Meerut Development Authority cited supra . A very strong reliance was placed on Madan Mohan Pathak v. Union of India reported in 1978 2 SCC 50 by Shri Trivedi, Learned Senior Counsel for the appellants. In Meerut Development Authoritys case cited supra , the aforementioned decision in Madan Mohan Pathaks case cited supra has already been companysidered in paragraph 11 of that judgment. Reliance was also placed on the judgment in Bakhtawar Trust v. M.D. Narayan Ors. reported in 2003 5 SCC 298. Learned Counsel for the appellant relied on paragraphs 14 to 16. In our opinion, paragraph 14 was companypletely against the appellants wherein the State Legislatures power to make retrospective legislation and thereby validating the prior executive and legislative acts retrospectively is recognized. Of companyrse, the same has to be done only after curing the defects that led to the invalidation. We respectfully agree with the propositions laid down in paragraphs 14, 15 and 16 thereof. In Shri Prithvi Cotton Mills Ltd. Vs. Broach Borough Municipality reported in 1969 2 SCC 283, which is referred to in paragraph 16 of the decision, it is stated thatthe Legislature may follow any one method or all of them and while it does so, it may neutralize the effect of earlier decision of the Court which becomes ineffective after the change of law. It is further stated therein that the validity of the validating law, therefore, depends upon whether the Legislature possesses the companypetence which it claims over the subject matter and whether in making the validation it removes the defect which the Courts had found in the existing law. The Amending Act has clearly passed these tests. All the relevant cases on this subject have been companysidered in this judgment. Again in ITW Signode v. Collector of Central Excise reported in 2004 3 SCC 48 cited supra , our attention was invited by Shri Trivedi to paragraphs 44 to 46 of this decision which dealt with the question of validity of validating Act and reference is made to Shri Prithvi Cotton Mills Ltd. Vs. Broach Borough Municipality reported in 1969 2 SCC 283 and M s. Ujagar Prints and Others II Vs. Union of India and Others reported in 1989 3 SCC 488. There is numberhing in these paragraphs which would go companynter to the expressions made in MDAs case cited supra or the finding that the present Amending Act has removed the defects pointed out in Radhey Shyams case cited supra . Of companyrse, this case pertains to the taxing statutes. We do number find anything companytrary in the other decisions, namely, S.R. Bhagwats and Indira Gandhis case both cited supra to which we have already made reference. The other cases, namely, Virender Singh Hoodas case, I.M. Saxenas case, and Janpad Sabhas case all cited supra need number be companysidered in view of what we have held above and further there is numberhing in those cases which would make us take another view of the matter. We, therefore, do number agree with the companytention raised by Shri Trivedi that amended Section 17 4 is ultra vires as it does number remove the defects That question is closed by MDAs case cited supra . We also do number agree that it merely nullifies the judgment in Radhey Shyams case cited supra . It was further argued by Shri Trivedi that the Amending Act is ultra vires the Article 300 A of the Constitution inasmuch as it deprives the petitioner of higher companypensation as may be admissible pursuant to the fresh acquisition proceedings after 1987. Three cases have been relied upon, namely, State of Gujarat Anr. v. Raman Lal Keshav Lal Soni Ors. reported in 1983 2 SCC 33, T.R. Kapoor Ors. v. State of Haryana Ors. reported in 1986 Suppl. SCC 584 and Union of India v. Tushar Rajan Mohanty reported in 1994 5 SCC 450, wherein it is held that the Legislature cannot create prospective or retrospective law so as to companytravene the fundamental rights and that the law must satisfy the requirements of the Constitution. We have absolutely numberquarrel with that, however, we fail to understand as to how it applies here. For establishing their rights, the appellants would have to establish that the State Government was required, in law, to make a fresh acquisition and companyld number companytinue with the old one. We have already held that we are number companyvinced by the argument that there was anything wrong with the old proceedings which came to be validated by the Amending Act. We have also found that the Amending Act was a perfectly valid legislation. In that view, the challenge must fail. The second decision relied upon is T.R. Kapoor Ors. v. State of Haryana Ors. reported in 1986 Suppl. SCC 584. This case has been relied upon for the companytents in paragraphs 5 and 16 wherein it has been held that benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect. The present case is number such a case. No benefits companyld be said to have been accrued in favour of the appellants herein which have been taken away. To the same effect, is the third decision reported as Union of India Tushar Rajan Mohanty reported in 1994 5 SCC 450. We do number think that the case is relevant to the present issue. The further argument by the Shri R.N. Trivedi, Learned Senior Counsel appearing on behalf of the appellants herein was about the validity of Section 3 of the Validating Act, providing that a numberification would number be invalid on a ground that a declaration under Section 6 of the Act was published on the same date, on which the numberification under Section 4 of the Act was published or any other day prior to the date of publication of the numberification under Section 4 of the Act. The companytentions made in this behalf have already been companysidered by us in the earlier part of the judgment, where we held that the relevant date would be that of numberification under Section 4 of the Act or the numberification of declaration under Section 6 of the Act and number the mere declaration under Section 6 of the Act. We have already held with reference to the earlier decisions in this behalf that this is number res integra and is partly companyered in Mohd. Alis case cited supra . In Mohd. Alis case cited supra , a reference was made to Khadim Hussains case cited supra , where it has been held that a numberification under Section 6 2 amounts to the evidence of declaration, which is in the form of an order. The numberification is the publication of such declaration and the proof of its existence. Our attention was invited to another reported decision of this Court in Sriniwas Ramnath Khatod Vs. State of Maharashtra Ors. reported in 2002 1 SCC 689 to the effect that publication under Section 6 2 is a ministerial act. What is tried be impressed is that the relevant date should only be the declaration and number its publication. We have already dealt with this subject earlier, particularly relying on Mohd. Alis case cited supra and the MDAs case cited supra . In view of the subsequent decisions, we are number in a position to accept the argument that Section 3 itself, providing for the eventuality companytained therein, is in any way invalid. We, therefore, reject the argument. The Learned Senior Counsel also referred to the decision in the case of Eugenio Misquita Ors. Vs. State of Goa Ors. reported in 1997 8 SCC 47, in which reference was made to the decision in the case of Krishi Utpadan Mandi Samiti Vs. Makrand Singh Ors. reported in 1995 2 SCC 497. It must be immediately pointed out that both these decisions would number be relevant to the present companytroversy, as in these decisions, what was being companysidered was as to which would be the last date under Section 6 2 of the Act for the purposes of Section 11A. The companytroversy involved in the case of Eugenio Misquita Ors. Vs. State of Goa Ors. cited supra , as well as in the case of Krishi Utpadan Mandi Samiti Vs. Makrand Singh Ors. cited supra is entirely different than the one involved in this matter. Those two cases in Eugenio Misquita Ors. Vs. State of Goa Ors. cited supra and Krishi Utpadan Mandi Samiti Vs. Makrand Singh Ors. cited supra would number be apposite. A further reference was made by the Learned Senior Counsel for the appellants to the decision in the case of Mohan Singh Ors. Vs. International Airport Authority of India Ors. reported in 1997 9 SCC 132 and S.H. Rangappa Vs. State of Karnataka Anr. reported in 2002 1 SCC 538. In the second matter, a reference was made to the larger Bench, as the Court was of the opinion that the view taken in two decisions in Eugenio Misquita Ors. Vs. State of Goa Ors. cited supra and Krishi Utpadan Mandi Samiti Vs. Makrand Singh Ors. cited supra was companytrary to the decision in Khadim Hussains case cited supra . As regards the case of Mohan Singh Ors. Vs. International Airport Authority of India Ors. cited supra , the Learned Senior Counsel relied on the observations made in paragraphs 13 and 16. In paragraph 13, it is stated there that- What is needed is that there should be a gap of time of at least a day between the publication of the numberification under Section 4 1 and of the declaration under Section 6 1 . Further in paragraph 16, it is observed that- What is material is that the declaration under Section 6 should be published in the Gazette after the numberification under Section 4 1 was published, i.e., after a gap of at least one day. It will be seen that a reference is made to the decision in the case of Radhey Shyam Nigam cited supra in this paragraph, as also to the simultaneous publication of numberification under Section 4 and the declaration under Section 6 of the Act. A reference was also made to Section 17 4 , as also Section 17 1 A. It is significant to numbere that later on when the question of validity of the Validating Act came before this Court which validating provision and proviso to Section 17 4 were number available in Mohan Singhs case cited supra , this Court upheld the validity of the Validating Act, refuting the argument that the Validating Act was only for the purpose of invalidating the decision in Radhey Shyam Nigams case cited supra . In our opinion, once this Court upheld the validity and once we have also approved of the Constitutional validity of Validating Act, all these questions must lose their relevance. We do number think that decision in the case of Mohan Singh Ors. Vs. International Airport Authority of India Ors. cited supra can be of any help to the appellants in the light of the facts of the present case. Decision in S.H. Rangappa Vs. State of Karnataka Anr. reported in 2002 1 SCC 538, which is a decision after the reference was made to the larger Bench was also referred before us by the Learned Senior Counsel. The question, which fell for companysideration in that decision was whether the numberification under Section 6 2 of the Act should be published within the period prescribed by the proviso to Section 6 1 of the Act. The Court ultimately upheld the decision in Khadim Hussains case cited supra and observed that in the decisions in Eugenio Misquita Ors. Vs. State of Goa Ors. cited supra and Krishi Utpadan Mandi Samiti Vs. Makrand Singh Ors. cited supra , the binding decision of Khadim Hussains case cited supra was number referred. It was also observed that even otherwise in both these cases, declaration under Section 6 of the Act had been published within one year of the numberification under Section 4 of the Act and the question in form, in which it has arisen in S.H. Rangappas case cited supra , did number arise there. We would like to say the same thing in respect of the decision in the case of S.H. Rangappas case cited supra that the question which we have to companysider in the present case, as also the facts, are entirely different than the ones in that case. Once Section 3 of the Validating Act came validly on the statute book, there will be numberquestion of any further companysideration. The decision in the case of S.H. Rangappas case cited supra turns essentially on the question of limitation. In the decision in H. Rangappas case cited supra , the law laid down in Khadim Hussains case cited supra has been approved. Once we give the interpretation that we have given to Section 3 and the proviso supplied by Section 2, the things become clear. We are, therefore, of the clear opinion that decision in S.H. Rangappas case cited supra also does number help the appellants herein in view of the different factual scenario, as also because the question of validity of the Validating Act is entirely different from the question of limitation. The Learned Senior Counsel further argued that we should make a reference to the larger Bench and has formulated the questions as under- Whether the proviso to Section 17 4 inserted by the Amending Act cures the defect pointed out in Radhey Shyam only for the period between 24.9.1984 and 11.1.1989? Whether declaration mentioned in the aforesaid proviso refers to it as understood by Section 6 1 or Section 6 2 ? Whether the validation provision in Section 3 of the Amending Act goes beyond the newly inserted proviso inasmuch as- h it cures the defect of publication of the declaration and number making of the declaration. it validates publication of the declaration under Section 6 prior and subsequent to the date of the publication under Section 4 1 of the principal Act. Whether the distinction between declaration simpliciter in Section 6 1 and a published declaration under Section 6 2 , pointed out in Khadim Hussain 4 Judges decision and followed by 3 Judges decision in Rangappas Case was ignored in Meerut Development Authoritys case? It would appear that what is cured is number validated and what it validates is number cured. Whether in view of the admitted incapacity to offer, tender and pay the companypensation under sub-Section 3 and 3A of Section 17, the numberification under Section 17 4 becomes void? We do number think that there is any need to refer any of the questions raised above in view of our observations in the earlier paragraphs, as the schemes of Ghaziabad Development Authority and Meerut Development Authority have already been upheld by this Court in the earlier decisions. Secondly, the basic objective of the Validating Act was to protect the scheme during the period 1984-89 only and subsequently, there has been numbersuch case of simultaneous numberification in the State of Uttar Pradesh for the last two decades, as stated by the Learned Senior Counsel appearing on behalf of the LDA. Even in respect of Ujariyaon Housing Scheme Part- III, the declaration under Section 6 of the Act is published much after the publication of numberification under Section 4 of the Act. Thirdly, as has been done in MDAs case cited supra we have held that Section 17 4 proviso has to be read together with and in the light of Section 3 of the amending Act and number de hors of each other in view of the statement of objects and reasons of that Act. It must be realized that this Court ironed the creases in the proviso added to Section 17 4 in MDAs case cited supra . Fourthly, in one of the appeals before us in Civil Appeal Nos. 2116-2118 Tika Ram Ors. Vs. The State of U.P. Ors. represented by Shri Qamar Ahmad, Learned Counsel, the land owners have already accepted the companypensation, while in the matter of Civil Appeal No. 3415 of 1998 Pratap Sahkari Grih Nirman Samiti Ltd. Vs. State of Uttar Pradesh Ors. , the title of Society itself has been found to be infirm and number established as per the findings of the High Court. It is obvious that registration of the Sale Deed in respect of the Society is subsequent to the numberification under Section 4 of the Act and, therefore, inconsequential. The agreements in favour of that Society do number show that there was any companysideration passed. Again, the possession of the land has already been taken, as claimed by the LDA, way back in the year 1985 for which there are documents like Panchanama and the whole township has number companye up, persons have built their houses. As far as the sixth point of reference is companycerned, we would deal with the same separately in this judgment as we do number agree with the proposition made in that point. Lastly, as held in the cases of Mishri Lal Dead by L.Rs. Vs. Dhirendra Nath Dead by Rs. reported in 1999 4 SCC 11 and Central Board of Dawoodi Bohra Community Vs. State of Maharashtra reported in 2005 2 SCC 673, the principle of Stare Decisis would apply. In this case, their Lordships referred to observations by Lord Reid and quoted seven principles regarding the binding precedent. They are The freedom granted by the 1966 Practice Statement ought to be exercised sparingly the use sparingly criterion Jones Vs. Secretary of State for Social Services, 1972 AC 944, 966 . A decision ought number to be overruled if to do so would upset the legitimate expectations of people who have entered into companytracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision the legitimate expectations criterion Ross Smith Vs. Ross-Smith, 1963 AC 280, 303 and Indyka Vs. Indyka, 1969 AC 33, 69 . A decision companycerning questions of companystruction of statutes or other documents ought number to be overruled except in rare and exceptional cases the companystruction criterion Jones case supra 4 a A decision ought number to be overruled if it would be impracticable for the Lords to foresee the companysequence of departing from it the unforeseeable companysequences criterion Steadman Vs. Steadman, 1976 AC 536, 542C . A decision ought number to be overruled if to do so would involve a change that ought to be part of a companyprehensive reform of the law. Such changes are best done by legislation following on a wide survey of the whole field the need for companyprehensive reform criterion Myers Vs. DPP, 1965 AC 1001, 1022 Cassell Co. Ltd. Vs. Broome, 1972 AC 1027, 1086 Haughton Vs. Smith, 1975 AC 476, 500 . In the interest of certainty, a decision ought number to be overruled merely because the Law Lords companysider that it was wrongly decided. There must be some additional reasons to justify such a step the precedent merely wrong criterion Knuller Vs. DPP, 1973 AC 435, 455 . A decision ought to be overruled if it causes such great uncertainty in practice that the parties advisers are unable to give any clear indication as to what the companyrts will hold the law to be the rectification of uncertainty criterion , Jones case supra Oldendorff E.L. Co. GamBH Vs. Tradax Export SA, 1974 AC 479, 533, 535 1972 3 All ER 420 A decision ought to be overruled if in relation to some broad issue or principle it is number companysidered just or in keeping with companytemporary social companyditions or modern companyceptions of public policy the unjust or outmoded criterion Jones case supra Conway Vs. Rimmer, 1968 AC 910, 938 . We would immediately point out that principles at serial Nos. 2, 3, 4 a above as also principle No. 5 would apply to the present situation, where, by upsetting the whole acquisition tremendous upheaval is likely to follow. In that view we do number see any reason for making the reference as argued by the Learned Counsel. II Effect of alleged number-payment of 80 companypensation under Section 17 of the Principal Act As has been observed in Para 47, we would number take up the above topic. It was urged by the Learned Counsel that the State Government, though it acquired the possession under Section 17 of the Act, did number pay the 80 of companypensation, as required under Section 17 of the Act and on that account, the whole exercise was bad. We do number think that the proposition is companyrect. It was tried to be established that the sufficient funds were number available with the Government. We would prefer number to go into the factual questions as the High Court has companymented upon the same in great details. The tenor of the argument is that Sections 17 3 and 17 3A of the Act are mandatory and the companypensation ought to have been offered, tendered and paid to the land owners before taking the possession. Some documents were referred to in I.A. Nos. 4 and 5 of 2006 to show that LDA did number have the funds and it failed to provide sufficient funds even as late as upto 2004. The further argument was that even if it was assumed that the possession was taken on 21.5.1985, yet the companypensation was paid to the companycerned persons much later and in some cases, it was never paid. Heavy reliance was placed on the documents which were filed alongwith I.A. Nos. 4 and 5. This question in the precise form, was number raised before the High Court. These documents were number the part of the High Court record. Shri Dwivedi, Learned Senior Counsel for LDA further argued that these documents companyld number be accepted at this late stage and that the LDA did number have any opportunity to meet those documents, since on I.A. Nos. 4 and 5, numbernotice has been issued by this Court. Since the source, authentication and verification of those documents was number clear, these documents were number liable to be companysidered. The Learned Senior Counsel, however, submitted that the land acquisition proceedings on that account cannot be faulted with and cannot be set at naught. 50A. The Learned Senior Counsel argued that in case where the accelerated possession is required to be taken, Section 17 1 of the Act, as also Section 17 2 of the Act would be attracted and such possession can be taken immediately after the publication of Section 9 1 . Section 17 3 of the Act provides that in every case under Section 17 1 and Section 17 2 of the Act, the Collector shall offer companypensation for standing crops and trees or other damage at the time of taking possession. The Learned Senior Counsel pointed out that the expression - under either of the Sub-Sections shows that Sub-Section 3 is attracted only when the possession is taken under Sub-Section 1 or 2 of Section 17 of the Act. He, therefore, companytended that where Section 5-A is dispensed with under Section 17 4 of the Act, two Sub-Sections, i.e., 3 and 3A of Section 17 of the Act would number apply. The argument is clearly incorrect. By this, the attempt is to dissect Sub-Section 4 in two parts, firstly, where Sub-Section 1 and 2 are applicable and secondly, where the enquiry under Section 5-A is dispensed with. That is number the import of the language. Section 17 has to be read in full. It plainly reads that where the possession is taken with the aid of Section 17 2 , the companypensation must fall in advance as per the provisions of Section 3A. In fact, Section 3A has been brought on the legislature with the sole purpose of providing a companypensation for the possession taken. That is why 80 of the estimated companypensation is to be paid because even thereafter, the award proceedings would go on and the total companypensation would be decided upon. The attempt on the part of the Learned Senior Counsel to read that the payment of companypensation is number required where Section 5-A enquiry is dispensed with, would be doing violence to the language, firstly, of Section 3A and secondly, of Sub-Section 4 itself. The clear legal position is that the dispensation of Section 5-A enquiry is only and only to enable the State Government to take possession under Sub-Section 1 and 2 of Section 17. A third category cannot be created so as to avoid the payment of companypensation. The companytention is, therefore, clearly wrong. However, the question is as to what happens when such payment is number made and the possession is taken. Can the whole acquisition be set at naught? In our opinion, this companytention on the part of the appellants is also incorrect. If we find fault with the whole acquisition process on account of the number-payment of the 80 of the companypensation, then the further question would be as to whether the estimation of 80 of companypensation is companyrect or number. A further companytroversy can then be raised by the landlords that what was paid was number 80 and was short of 80 and, therefore, the acquisition should be set at naught. Such extreme interpretation cannot be afforded because indeed under Section 17 itself, the basic idea of avoiding the enquiry under Section 5-A is in view of the urgent need on the part of the State Government for the land to be acquired for any eventuality discovered by either Sub-Section 1 or Sub-Section 2 of Section 17 of the Act. The only question that would remain is that of the estimation of the companypensation. In our companysidered view, even if the companypensation is number paid or is short of 80, the acquisition would number suffer. One companyld imagine the unreasonableness of the situation. Now suppose, there is state of emergency as companytemplated in Section 17 2 of the Act and the companypensation is number given, companyld the whole acquisition companye to a naught? It would entail serious companysequences. This situation was companysidered, firstly, in Satendra Prasad Jain Ors. Vs. State of U.P. Ors. reported in 1993 4 SCC 369. It was held therein that once the possession is taken as a matter of fact, then the owner is divested of the title to the land. The Court held that there was then numberquestion of application of even Section 11-A. Commenting upon Section 11-A, it was held that that Section companyld number be so companystrued as to leave the Government holding title of the land without an obligation to determine the companypensation, make an award and pay to the owner the difference between the amount of the award and the amount of the 80 of the estimated companypensation. The three Judges Bench of the Court took the view that even where 80 of the estimated companypensation was number paid to the land owners, it did number mean that the possession was taken illegally or that the land did number vest in the Government. In short, this Court held that the proceedings of acquisition are number affected by the number-payment of companypensation. In that case, the Krishi Utpadan Mandi Samiti, for which the possession was made, sought to escape from the liability to make the payment. That was number allowed. The Court, in para 17, held as under- In the instant case, even that 80 of the estimated companypensation was number paid to the appellants although Section 17 3-A required that it should have been paid before possession of the said land was taken but that does number mean that the possession was taken illegally or that the said land did number thereupon vest in the first respondent. It is, at any rate, number open to the third respondent, who, as the letter of the Special Land Acquisition Officer dated June 27, 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has number vested in the first respondent and the first respondent is under numberobligation to make an award. Further, in a judgment of this Court in Pratap Anr. Vs. State of Rajasthan Ors. etc. etc. reported in 1996 3 SCC 1, similar view was reported. That was a case under the Rajasthan Urban Improvement Act, 1987, under which the acquisition was made using Section 17 of the Act. The Court took the view that once the possession was taken under Section 17 of the Act, the Government companyld number withdrew from that position under Section 18 and even the provisions of Section 11-A were number attracted. That was of companyrse a case where the award was number passed under Section 11-A after taking of the possession. A clear cut observation came to be made in that behalf in Para 12, to the effect that the number-compliance with Section 17 of the Act, insofar as, payment of companypensation is companycerned, did number result in lapsing of the land acquisition proceedings. The law laid down by this Court in Satendra Prasad Jain Ors. Vs. State of U.P. Ors. cited supra was approved. The Court also relied on the decision in Chinnanna Vs. State of A.P. reported in 1994 5 SCC 486 and Awadh Bihari Yadav Vs. State of Bihar reported in 1995 6 SCC 31, where similar view was taken regarding the land acquisition proceedings number getting lapsed. The only result that may follow by the number-payment would be the payment of interest, as companytemplated in Section 34 and the proviso added thereto by 1984 Act. In that view, we do number wish to further refer the matter, as suggested by Shri Trivedi, Learned Senior Counsel and Shri Qamar Ahmad, Learned Counsel for the appellants. Therefore, even on the sixth question, there is numbernecessity of any reference. III. Challenge under Article 14 of the Constitution of India Learned Senior Counsel then urged that the provisions of the amending Act and also the provisions of Land Acquisition Act like Section 17 4 are invalid on the test of Article 14 of the Constitution. It is pointed out by Shri Trivedi, Learned Senior Counsel that in GDAs case cited supra the impugned numberification was held to be valid in view of the amendment made to Section 17 4 of the Act. However, there was numberchallenge to the validity of Section 17 4 of the Act in the said case. Similarly, it was argued that in MDA v. Satbir Singh 1996 11 SCC 462, the Court had made observation in paragraph 8 that the validity of Section 17 4 was upheld in GDAs case cited supra , whereas in fact it was number tested in GDAs case cited supra at all. It was further urged that the validity of the Act was number tested with respect to its inconsistency with Article 14 and Article 300A of the Constitution of India. In this behalf it was argued by the Learned Counsel that there was an observation to the effect in paragraph 14 that the proviso was number happily worded. But a reading of it would clearly give us an indication that the proviso to sub-section 4 introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations ,namely, the numberification published on or after September 24, 1984 but before January 11, 1989 as also the declaration to be simultaneously published subsequent thereto. It was further argued that if we read the proviso in the manner that we have already done then it would be a case of casus omissus being supplied by the Court. We have already taken all these arguments into companysideration. In view of the interpretation given by us to Section 3 and the proviso and the necessity of reading the two provisions in the light of each other, there would be numberoccasion of supplying casus omissus and the argument in that behalf must fail. Insofar as the validity on the backdrop of Article 14 is companycerned, it is true that in paragraph 8 there has been an observation that the validity of the proviso added by the State Legislature by way of an amendment to Section 17 4 of the Act has been upheld by the two Judge Bench decision in GDAs case cited supra . However, when we see the rest of the judgment it can be said that numbersuch question was companysidered. However, the fact remains that in GDAs case cited supra , the validity was number questioned or doubted and the challenged Section was interpreted and treated to be valid by the Court. When we see the further judgment in MDAs case cited supra in the further paragraphs, this Court has approved of the whole amending Act reiterating on the decision in Indian Aluminium Co. cited supra . The Court has taken a full review of the then existing law by way of the decision of this Court in State of Orissa Vs. Gopal Chandrarath reported in 1995 6 SCC 243, Bhubaneswar Singh and Anr. Vs. Union of India and Ors. reported in 1994 6 SCC 77 and Comorin Match Industries P. Ltd, Vs. State of Tamil Nadu reported in 1996 4 SCC 281. Thereafter, referring to Gouri Shankar Gauri and Ors. Vs. State of U.P. and Ors. reported in 1994 1 SCC 92, the Court also referred to the provisions of Article 254 2 and 3 and approved of the whole Amending Act as such. In our opinion, reading paragraph 14 of this judgment in its companyrect perspective would repel the argument of the appellants that the provision is arbitrary in any manner or has the effect of creating impermissible classification. In our opinion, the language of paragraph 14 does number help the petitioners. If the petitioners in MDAs case cited supra did number specifically address the Court on the question of Constitutional validity of the Amending Act as is being claimed by the appellants , we do number think it will be permissible for the petitioners to raise this point which was admittedly number raised either in GDAs case cited supra or MDAs case cited supra . Petitioners would number be permitted to take such a companyrse see Delhi Cloth and General Mills Co. Ltd. Vs. Shambhu Nath Mukherji Ors. reported in AIR 1978 SC 8. We need number go in that question since MDAs case cited supra is a Larger Bench decision. However, this is apart from the fact that in our opinion there can be numberquestion of Section 17 4 proviso or the provisions of the Amending Act being invalid in any way. We, therefore, do number feel necessary to refer this case on this issue to a Larger Bench, particularly, in respect of the validity of the provisions vis--vis Article 14 of the Constitution. We do number find the provisions in any manner arbitrary or making impermissible classifications or suggesting invidious discrimination number can the provisions in the amending Act can be termed as arbitrary providing numberguiding principles. The Learned Senior Counsel appearing for the appellants had heavily relied on paragraph 14 of the judgment in Meerut Development Authority Vs. Satvir Singh Ors. cited supra . Basically we do number accept the companytention raised that the companytents in paragraph 14 holding that the provisions of the amending Act are number limited to the two dates mentioned and can be applicable even subsequently, results in creation of two classes and the possible discrimination. In our opinion, it will number be necessary to go into that question as the present appeals pertaining to Ujariyaon Housing Scheme Part-II are relating only to the period between 24.9.1984 and 11.1.1989. It is stated by the Learned Senior Counsel appearing for the LDA that only two appeals pertain to Ujariyaon Housing Scheme Part-III and even in that case, the numberifications were published in the year 1991 and the issue of simultaneous publication of numberification does number arise, as Section 6 declaration was signed and published in 1992. Therefore, there will be numberneed to go into the academic question whether Amending Act applies only to the period between 24.9.1984 and 11.1.1989 or even the subsequent period. Further, even if, as held in MDAs Case cited supra , it applied to the subsequent period, it does number infringe Article 14 for the reasons given by us earlier. Shri Trivedi, Learned Senior Counsel for the appellants further argued that there was invidious discrimination between the Ujariyaon Housing Scheme Part-II and Ujariyaon Housing Scheme Part-III, inasmuch as while the numberification published on 8.12.1984 under Section 4 read with Section 17 4 of the Act was allowed to proceed with the help of the Validating Act, in case of Ujariyaon Housing Scheme Part-III, however, a fresh numberification was issued on 30.12.1991 and Section 6 declaration came to be issued on 30.12.1992. Thus, while the numberification in respect of Ujariyaon Housing Scheme Part-II was validated, the numberification in respect of the Ujariyaon Housing Scheme Part-III was allowed to lapse and a fresh numberification was published, meaning thereby that persons companying under Ujariyaon Housing Scheme Part-III, got the better deal if they really did and higher companypensation. This argument of Shri Trivedi was adopted by Shri Qamar Ahmad. Though we have companysidered this argument in the earlier part of the judgment we again reiterate that the argument is clearly incorrect. The Validation Act did number companyfer any discretion on the State Government to apply its provisions to a particular scheme and then issue numberifications. It was a one time exercise for validating a particular scheme by amending the Act which has already been found to be valid in MDAs case cited supra . Again Ujariyaon Housing Scheme Part-III did number lapse because of the decision of the Government. Since the award was number made within the time prescribed by the Section 11A of the Act, it had the effect of lapsing the numberifications. Therefore, the State Government was left with numberother way and had to issue a fresh numberification. In Ujariyaon Housing Scheme Part-II, the award was made by the Collector within the time and, therefore, those numberifications were number affected. Therefore, the argument that there was invidious discrimination in between the two schemes has to fail. It was reiterated by Shri Trivedi, Learned Senior Counsel, as also, Shri Qamar Ahmed, Learned Counsel that the question of companystitutional validity of the Act was number companysidered by the High Court as the Act was held to be valid in GDAs case cited supra and in MDAs case cited supra . It was, however, urged that the question of Constitutional validity was never companysidered in these cases. Reliance was placed on judgments reported as Arnit Das v. State of Bihar reported in 2000 5 SCC 488, State of UP Anr. v. Synthetics Chemicals Ltd. Anr. reported in 1991 4 SCC 139, Nirmal Jeet Kaur v. State of Madhya Pradesh Anr. reported in 2004 7 SCC 558, ICICI Bank Anr. v. Municipal Corporation of Greater Bombay Ors. reported in 2005 6 SCC 404, R. Antulay v. R.S. Naik Ors. reported in 1988 2 SCC 602, Zee Telefilms Ltd. Anr. v. Union of India Ors. reported in 2005 4 SCC 649, P. Ramachandra Rao v. State of Karnataka reported in 2002 4 SCC 578, Nand Kishore v. State of Punjab reported in 1995 6 SCC 614, Isabella Johnson v. M.A. Susai reported in 1991 1 SCC 494. We do number think that the law laid down in these cases would apply to the present situation. In all these cases, it has been basically held that a Supreme Court decision does number become a precedent unless a question is directly raised and companysidered therein, so also it does number become a law declared unless the question is actually decided upon. We need number take stock of all these cases and we indeed have numberquarrel with the propositions settled therein. However, we may point out that, firstly, the question of validity is settled in MDAs case cited supra . This is apart from the fact that we are of the opinion that there is numberhing wrong with the Amending Act insofar as its Constitutional validity is companycerned. We have already rejected the argument that there was any discrimination between Ujariyaon Part II and Ujariyaon Part III schemes. We are companyvinced with the explanation given by the State Government as to why Ujariyaon Part III scheme was left out of the companysideration of validation. Indeed the acquisition therein companyld number have been validated on account of the time having lapsed for doing so. Once Sections 2 and 3 and the proviso are read in the manner indicated in MDAs case cited supra as also in the light of observations made by us, numberquestion remains of any Constitutional invalidity. We are number at all impressed by the companytention raised that the Amending Act cannot pass the test of Article 14. We hold accordingly. Our attention was invited to R.K. Dalmia v. S.R. Tendolkar cited supra . In fact, according to us this judgment does number help the appellants for assailing the Constitutional validity of the statute. In so far as the Executive action is companycerned, we do number think that there is any scope to interfere in this matter. Shri Qamar Ahmed in his written arguments has adopted the arguments of Shri Trivedi. In his written submissions he has challenged the provisions of Sections 17 1 , 17 1A , 17 3A and 17 4A and proviso to Section 17 4 as ultra vires to the Constitution. He has also challenged the provisions of Section 2 of the UP Act No. 8 of 1974 as violative and ultra vires to Section 3A, 3B, 4, 5, 6, 7, 8 of Land Acquisition Act No.1 of 1894 as amended from time to time. In support of his argument, Learned Counsel has relied on the law laid down in Anwar Ali Sarkars case cited supra . According to him, Sections 17 1 , 17 1A , 17 3A and 17 4 of the Act and Section 2 of the UP Act No. VIII of 1974, as also the UP Act No. 5 of 1991 are violative of Articles 14, 19, 21, 39, 48, 48A and 300A for invidious discrimination. Learned Counsel also submits that there are numberguidelines for the exercise of power under Sections 17 1 , 17 1A and Section 17 4 , as the word urgency is too vague, uncertain and elusive criteria to form the basis of a valid and reasonable classification. Learned Counsel also referred to the case of Lachman Das State of Bombay reported in AIR 1952 SC 235. A reference was also made to Charanjit Lal Chowdhury v. Union of India Ors. reported in AIR 1951 SC 41. Learned Counsel has traced the whole case law following Anwar Ali Sarkars case cited supra and has quoted extensively from that case as also from Kathi Ranning Rawat v. State of Saurashtra reported in AIR 1952 SC 123. We have already pointed out that this group of cases would be of numberhelp to the appellants, particularly, because the fact situation and the companytroversy involved in the present matter is entirely different. We do number agree with the Learned Counsel that there is any classification, much less any impermissible classification and any group has been treated favourably as against another group or that the law has treated a group more favourably than the other, refusing equal protection to such group. As regards the general principles from Anwar Ali Sarkars case cited supra as also from State of Punjab v. Gurdial Singh reported in AIR 1980 SC 319, we must point out that ultimately this Court culled out the principle that if the Legislature indicates a policy which inspires it and the object which it seeks to attain, then the selective application of the law can be left to the discretion of the Executive authority see Kedar Nath Bajorias case reported in 1953 SCR 30. Such law has been approved in R.K. Dalmias case cited supra as also in In Re Special Courts Bill cited supra . There can be numberdispute that the law must indicate the policy and the object clearly while acquiring. Discretion upon the application of law and the power under Section 17 of the Act of doing away with Section 5A inquiry has to be exercised in a proper manner. There are cases where this Court has number brooked any breach of provision under Section 17 of the Act. However, we must say that there are clear guidelines provided under Section 17 1 read with Section 4 for understanding the companycepts of urgency and emergency. In this behalf, we must hold that the criteria of emergency as provided under Sub-Section 2 of Section 17 is separate and distinct from the criteria of urgency. In our opinion, these two criteria provide clear guidelines and cannot be held as arbitrary. In Krishi Utpadan Mandi Samitis case and Pista Devis case cited supra , this Court has laid down that mere existence of urgency is number enough and the Government must further companysider the matters objectively as to the dispensation with Section 5A permissible under that particular situation. Section 17 of the Act has existed on the statute book for a long time and on a number of occasions the applicable criteria of urgency and emergency have been tested by the Courts on account of the Government actions in that behalf being challenged. Wherever the Courts have found that urgency did number exist in reality or the dispensation of Section 5A was number companysidered separately such numberifications have been struck down on a number of occasions. However, we do number see any reasonable argument having been made against the Constitutional validity. The validity of this Section 17 of the Act has been upheld by the Allahabad High Court as also the Gujarat High Court in Sarju Prasad Sahu v. State of Uttar Pradesh Ors. reported in AIR 1962 ALL 221 and Ram Sevak v. State of UP Ors. reported in AIR 1963 All 24. The second judgment of Allahabad High Court has been approved by the companyrt in Ishwarlal Girdharlal Joshi etc. State of Gujarat Anr. reported in AIR 1968 SC 870. We, therefore, do number accept the companytention raised by Shri Qamar Ahmad, Learned Counsel for the appellants that the power under Section 17 4 of the Act of dispensing with the enquiry under Section 5-A is in the nature of unbridled and uncanalised power in the hands of Executive to take possession, invoking urgency clause. As discussed in the earlier cases by this Court cited above , it cannot be said that the Section suffers from any companystitutional invalidity on account of being arbitrary in the nature. In fact, the reliance was placed on the decision in Suraj Mall Mohta and Company Vs. A.V. Visvanatha Sastri and Anr. reported in AIR 1954 SC 545. That was a case under the tax jurisprudence, dealing with certain Sections of the Taxation on Income Investigation Commission Act, 1947. It was found to be invalid as it had provided different procedure for the tax abettors. This Court had found that the procedure was more drastic for a certain group. The provisions of Sub-Section 4 of Section 5 were found to be discriminatory. The High Court has also dealt with this case. Though there can be numberdispute on the principles, we do number think that the principle are applicable to the present companytroversy. We have already given a reference of the case of Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat cited supra . The Learned Counsel appearing on behalf of the respondents invited our attention to the findings recorded by the High Court, with which we are satisfied. We must observe that merely because the decision of the Government on question of urgency is number justiciable, it does number mean that Section 17 4 of the Act is discriminatory. The High Court has made a reference to the observation by this Court in Matajog Dubey Vs. H.C. Bhari reported in AIR 1956 SC 44, holding that a discretionary power is number necessarily a discriminatory power and that abuse of such power is number to be easily assumed. Even at the companyt of repetition, we may mention the case of R.K. Dalmia v. S.R. Tendolkar cited supra as a companyplete answer to the argument of Shri Qamar Ahmad, Learned Counsel for the appellants. Ishwarlals case cited supra is also a total answer to the argument that Sub-Section 1 and 4 of Section 17 of the Act are unconstitutional. The High Court has companyrectly held that Sub-Sections 1 , 3A and 4 of Section 17 of the Act do number suffer from any unconstitutionality on account of the alleged breach of Article 14 of the Constitution of India. Shri Qamar Ahmad, Learned Counsel for the appellants also argued that before deciding to take the possession under the various provisions of Section 17 of the Act, a person is entitled to a numberice. The High Court has companyrectly dealt with this question. It firstly companysidered the law laid down in the cases of Kraipak Vs. Union of India reported in AIR 1970 SC 150, Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597 and Olga Tellis Vs. Bombay Municipal Corporation reported in AIR 1986 SC 180 as also in Union of India Vs. Tulsi Ram reported in AIR 1985 SC 1416 which were relied upon by the High Court. The High Court was, undoubtedly, companyrect in holding that there was numbernecessity of a numberice since the satisfaction required on the part of the Executive is a subject of satisfaction, which can only be assailed on the ground that there was numbersufficient material to dispense with the enquiry or the order suffers from malice. We will deal with the question as to whether there was an urgency and what is the nature of urgency required. We, therefore, do number think that Sub-Sections 1 3A and 4 of Section 17 of the Act suffer, as there is numbernotice provided in those Sub-Sections before the possession is taken. IV. Issue of urgency and application of Section 17 of the Principal Act At this juncture itself, we must also companysider the argument that there was numberreal urgency in this matter. It can number be ignored that this land was urgently needed for housing. Large-scale development and utilization of acquired land after the acquisition is apparent on the face of the record. A number of houses have been companystructed, third party interests were created in whose favour the plots were allotted and the High Court has also companymented while disposing of the writ petitions that the quashing of the numberification at this stage will prejudice the interests of the people for whom the schemes were evolved. While companysidering as to whether the Government was justified in doing away with the inquiry under Section 5A, it must be numbered that there are numberallegations of mala fides against the authority. No evidence has been brought before the judgment and the High Court has also companymented on this. The housing development and the planned developments have been held to be the matters of great urgency by the companyrt in Pista Devis case cited supra . In the present case we have seen the judgment of the High Court which has gone into the records and has recorded categorical finding that there was sufficient material before the State Government and the State Government has objectively companysidered the issue of urgency. Even before this Court, there were numberallegations of mala fides. A numberice can be taken of the fact that all the lands which were acquired ultimately came to be utilized for the scheme. We, therefore, reject the argument that there was numberurgency to justify dispensation of Section 5A inquiry by applying the urgency clause. In a reported decision Kishan Das Ors. v. State of UP Ors. reported in 1995 6 SCC 240, this Court has taken a view that where the acquisition has been companypleted by taking the possession of the land under acquisition and the companystructions have been made and companypleted, the question of urgency and the exercise of power under Section 17 4 would number arise. We must numberice that acquisitions in this case are of 1984-1985 and two decades have passed thereafter. The whole township has companye up, the houses and the lands have been allotted, sold and re-sold, awards have been passed and overwhelming majority of land owners have also accepted the companypensation, this includes even some of the appellants. In such circumstances we do number think that the High Court was in any way wrong in number interfering with the exercise of power under Section 17 4 of the Act. At any rate, after the companysidered findings on the factual questions recorded by the High Court, we would number go into that question. The High Court has taken a stock of the argument on behalf of the respondents herein that there was material available in support of the satisfaction on the part of the Executive to take possession under Section 17 of the Act. The High Court has relied on the decisions in Raja Anand Braha Shah Vs. State of U.P. reported in AIR 1967 SC 1081, in Narayan Vs. State of Maharashtra reported in AIR 1977 SC 183, in Kailashwati Vs. State of U.P. reported in AIR 1978 All. 181, in Deepak Pahwa Vs. Lt. Governor of Delhi reported in AIR 1984 SC 1721, as also in Pista Devis case cited supra and Krishi Utpadan Mandi Samitis case cited supra . The High Court has companyrectly companye to the companyclusion that there was all the justification for invoking the urgency clause and taking the possession for the lands in question. We endorse the said finding of the High Court. Other companytentions on merits Apart from these companytentions, both Shri Trivedi, Learned Senior Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same questions of facts like the number-publication of Sections 4 and 6 numberifications. Insofar as that is companycerned, we have mentioned it only for rejecting the companytention. After the judgment of the High Court we will number go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the companyperative society and the release of the same. We do number think that that question needs to be answered in the wake of the High Courts judgment. The High Court judgment is absolutely companyrect in that behalf. In our companysidered opinion, even if the Government had taken a decision number to acquire the land belonging to the companyperative society as far as possible, there is numberhing wrong if such lands were acquired. What is to be seen is the bona fides of the Government behind the decision to acquire the lands. On that account numberfault can be found with the companycerned numberifications under Sections 4 and 6. Similar companytentions were raised regarding the possession. We do number propose to go into the question of facts and questions relating to the individual claims. We have numbered that the respondents herein having specifically claimed that the possession of the lands has already been taken. Therefore, accepting that claim, as has been done by the High Court, we would number go into those questions of fact. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its companynter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true companyy of the Panchanama on record. Insofar as the Civil Appeal Nos. 2116-2118 Tika Ram Ors. Vs. The State of U.P. Ors. are companycerned, it was urged by the appellants that in the affidavit of State of P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession companyld number have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the companyrect date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in todays companytext, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on record, we would endorse the finding of the High Court that the possession was taken on 21.5.1985. Shri Dwivedi, Learned Senior Counsel appearing on behalf of the LDA also found fault with the Sale Deed in favour of Pratap Sahkari Grih Nirman Samiti Ltd., which is being represented by Shri Trivedi, Learned Senior Counsel. It was urged that its claim was based on the Sale agreement, which was executed one day before the publication of Section 4 Notification in the Gazette, i.e., 8.12.1984. It is admitted case that the Sale Deed was registered on 22.1.1986, which is clearly a date beyond the date of Section 4 numberification. It is already held by this Court in U.P. Jal Nigam Vs. Kalra Properties Ltd. reported in 1996 3 SCC 124 and Star Wire India Ltd. Vs. State of Haryana Ors. reported in 1996 11 SCC 698 that if any purchases of the land are made after the publication of Section 4 1 numberification, landlords in this case would number get any right or entitlement to question the validity of the title of the State based on the acquisition. Obviously, the claim of this society is on the basis of the Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was executed on 7.12.1984. We do number want to go into this question of fact, but we will certainly go with and endorse the finding of the High Court in this behalf that the society had purchased the land after the issuance of numberification. It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25 of the acquired land to the companyperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was companysidering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did number apply. Besides, according to the Learned Senior Counsel, the policy applied to the companyperative societies, who had land before the acquisition process begins. This was obviously with the object to safeguard the interests of the members of the society. The Learned Senior Counsel was at pains to point out that there is numbersuch disclosure as to who were the members of the society. According to the Learned Senior Counsel, the society was numberhing, but a front piece set up for obtaining 25 of the land. Therefore, the rent of the 25 of the land was number acceptable. It was also pointed out that the Sale Agreement was also entered into a day before the publication of the numberification in the Gazette and the registration of the Sale Deed was also done much after the numberification was published and, therefore, this policy, even if there is one, would number be applicable to the society in question. We would number, therefore, accept that claim that Pratap Sahkari Grih Nirman Samiti Ltd. should be given back 25 of the land acquired, which is again number possible in view of the township having companye up in Gomti Nagar. In view of what we have held above, we companyfirm the judgment of the High Court and dismiss all the appeals being Civil Appeal Nos.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2463 of 1982. From the Judgment and order dated 31. 8. 1981 of the Orissa High Court in First Appeal No. 184 of 1977. Veenu Bhagat for the Appellants. P. Mohanty and A.K. Mahapatra for the Respondents. The Judgment of the Court was delivered by SHARMA, J. The appellants filed a suit for partition of the properties detailed in the plaint claiming 1/3rd share. A preliminary decree was passed by the trial companyrt which was challenged by the defendant No. 9 original respondent No. 1 in the present appeal before the Orissa High Court in First appeal No. 184 of 1972. The appeal was disposed of on companypromise whereby the plaintiffs claim to 1/3rd share was accepted as companyrect. The terms of the companypromise are set out in paragraph 2 of the order dated 27.3.79. It was, however, further agreed that half of the share of the plaintiffs, i.e. 1/6th share, would go to the defendant No. 9 provided he paid a sum of Rs.40,000 to the plaintiffs by a particular date, failing payment within time, the decree passed by the trial companyrt would stand companyfirmed as per term of the companypromise. The companypromise was recorded on 27.3.1979. According to the companypromise the sum of Rs.40,000 was to be paid in two instalments the first instalment of Rs.10,000 by 31-7-1979 and the remaining amount of Rs.30,000 by 28.2.1980. The first instalment was paid within time but the remaining amount was number paid. In the meantime, the decree by the High Court was formally drawn up on 6.9.1979. In view of the default in payment of the second instalment the plaintiffsappellants deposited the sum of Rs. 10,000 received by them as the first instalment to the credit of the defendant No. 9 with the permission of the Court. The defendant No. 9, thereafter, made an application before the High Court on 28.8.1981 for extension of the period for payment of the second instalment of Rs.30,000. The application was allowed by the order dated 31.8.1981 which is under challenge in the present appeal. Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts. The parties are close relations, the defendant No. 9 original respondent No. 1 being the uncle of the plaintiffs-appellants. He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents. The father of the plaintiffs Nityagopal, defendant No. 9 original respondent No. 1 Ghosta Gopal and Brajgopal were brothers. Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962. According to their case, they thus became entitled to 1/3rd share in the properties belonging to the family. The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents. But, according to their case, they had to leave for their maternal grandmothers place in 1964 due to the ill-treatment by their uncle. In 1965, a companylusive suit for partition was companymenced by both the uncles Gostha Gopal and Brajgopal, in which although the plaintiffs were impleaded as parties, their address was wrongly mentioned in the plaint. Consequently numbersummons companyld be served on them number did they have any information about the suit and the decree passed therein. No share was allotted to the appellants at all. After they learnt about the companylusive suit and the decree, they filed the present suit being T.S. 32 of 1967, for setting aside the earlier decree and for partition. The trial companyrt accepted the plaintiffs case that the earlier decree was obtained by fraud. The plaintiffs were awarded 1/3rd share as claimed by them. Brajgopal became reconciled to the situation but Gostha Gopal challenged the decision in the aforementioned First Appeal No. 184 of 1972. The parties reached an amicable settlement and the appeal was disposed of on 27.3.1979. Accordingly the heirs of Brajgopal who was dead by then got their 1/3rd share in accordance with the trial companyrts decision and the suit so far as the other two branches, that is, the plaintiffs and Gostha Gopal were companycerned, was disposed of on the terms as mentioned in paragraph 1 above. According to the case of the plaintiffs-appellants they had numberinformation of the application dated 28.8.1981, filed by the defendant No. 9 for extension of the period for payment of the second instalment of Rs.30,000 and when a companyy of the application was offered to their advocate he did number accept the same making an endorsement thereon that numberice should be served directly on the plaintiffs as he did number companytinue to hold any authority on their behalf. Despite this stand of their learned companynsel in the High Court, numbernotice was sent to the plaintiffs and the case was listed only after two days on 31.8.1981. The plaintiffs advocate-although he did number represent them on that date-was present in Court when the case was called out, and pointed out that there was numberjustification for excusing the long delay. Earlier the companyrt by its order dated 17.8.1981, after taking into companysideration the companyduct of the defendant No. 9 in number companyplying with the terms of the companypromise, had permitted the plaintiffs to refund the sum of Rs.10,000 paid to them as the first instalment. The plaintiffs companynsel pointed out that the aforesaid order had finally closed the matter. The companyrt, however, allowed the prayer of the defendant and permitted him to pay the remaining money along with an additional sum of Rs.6,000 by way of companypliance of the terms of the companypromise. The companynsel who was representing the plaintiffs earlier, refused to accept the money when offered, and the companyrt permitted the defendant to deposit the amount with the Registrar of the companyrt observing that the same would be available to be withdrawn by the plaintiffs. When the petitioners learnt about the order they took a companyy of the same and approached this Court under Article 136 of the Constitution. While hearing the Special Leave Petition this Court directed the Subordinate Judge, Baripada to ascertain the market value of the 1/6th share of the property in question. The Subordinate Judge in his report to this Court stated that the value of the entire properties would be Rs.13,90,000 and the value of 1/6th share would accordingly be Rs.2,31,716. After the parties filed a number of affidavits, special leave was granted on 30.7.1982. Mr. Bhagat, appearing in support of the appeal, companytended that an order based on the companysent of the parties can be modified only with further companysent and it is number open to the companyrt to alter the terms otherwise. It was further argued that assuming the companyrt to be so empowered, the jurisdiction has to be exercised in exceptional circumstances and only in the ends of justice. If the High Court had directed numberice to be issued to the plaintiffs, they would have placed before the companyrt the circumstances showing that it was against the cause of justice to allow the prayer of defendant No. 9 and specially so after such a long delay. The plaintiffs were shabbily treated by their uncle after the death of their father when they were very young and had to take refuge at their deceased mothers parental home. Out of the two sisters only one companyld be married, and the younger one companyld number be married as the sum of Rs.30,000 promised by the respondent No. 1 to be paid by 28.2.1980 was number actually paid. According to the affidavit filed before this Court by way of rejoinder to the respondents supplementary affidavit she was number married till then. The learned companynsel, therefore, argued that there was numberjustification whatsoever for the High Court to companydone the delay and extend the period for deposit of the money by the respondent after more than 1 1/2 years of default. Mr. Mohanty, the learned companynsel representing the companytesting respondents, who have been substituted in place of the original respondent No. 1 Gostha Gopal, companytended that the 6th term of the companypromise dealing with the companysequence of default in payment of the instalments is penal in nature and must, therefore, be held illegal. He urged that the clause being severable from the other terms of the companypromise should be ignored and the other terms of the companypromise ought to be given effect to. As a result the clause that on the numberpayment of the agreed sum by the time indicated therein the decree of the trial companyrt would become final, must be rejected as illegal. Reliance was placed on Section 74 of the Indian Contract Act. It was further argued that the position with respect to an order of a companyrt of law made on the basis of companysent of parties is also the same and it is number companyrect to suggest that in the circumstances of the present case the companyrt had numberpower to permit the respondent No. 1 to make the deposit later. The learned companynsel relied on the observations made in Charles Hubert Kinch v. Edward Keith Walcott Ors., AIR 1929 P.C. 289, Banku Behari Dhur v. J.C. Galstaun Anr., AIR 1922 P.C. 339 and Jagat Singh Ors. v. Sangat Singh Ors., AIR 1940 P.C. 70 and the decision of this Court in Smt. Periyakkal Ors. Smt. Dakshyani, 1983 2 SCR 467. It was argued that it is number right to assume that the decree of the trial companyrt was unassailable in appeal. The respondent No. 1 had a substantial defence which he companyld have successfully pressed if the dispute had number been amicably settled. We do number find any merit in the argument that the impugned clause 6 of the agreement is illegal being penal in nature and has, therefore, to be ignored. It has to be numbered that the plaintiffs had in the trial companyrt obtained a decree for partition for 1/3rd share in the suit properties and there was presumption in favour of companyrectness of the decree. At the appellate stage one of the three branches represented by the heirs of Brajgopal was satisfied with the share allotted to them and the interest of Gostha Gopal defendant No. 9 was identical to their interest. The situation was acceptable to the defendant No. 9 also but he wanted to acquire half the share of the plaintiffs on payment of companysideration. The plaintiffs agreed and the sum of Rs.40,000 was fixed as the price. In clause 2 of the agreement, as mentioned below, it was expressly stated thus The sum of Rs.40,000 agreed to be paid by defendant No. 9 to the plaintiffs as companypensation for the 1/6th share shall be paid in two instalments Emphasis added The amount was to be paid by way of price was reiterated by the use of the word companysideration in clause 3. It is significant to numbere that the defendant No. 9 in the companyrt below or his heirs after his death before us have number suggested that the entire companypromise should be ignored on account of the impugned clause 6. They have been relying upon the companypromise except the default clause which alone is sought to be ignored. They insist that under the companypromise the shares allotted to the different branches should be treated as final and further half of the share of the plaintiffs, i.e. 1/6th share in the suit properties should have gone to the defendant No. 9 and after him, to them, i.e. his heirs for Rs.40,000. This part of the companypromise is in substance an agreement for transfer by the plaintiffs of half their share for a sum of Rs.40,000 to be paid within the time indicated. It is true that the market price of the property was higher, and a beneficial right was bestowed on the defendant No. 9 to acquire the same for an amount companysiderably low. In this background the defendant was subjected to the companydition that if he had to take the advantage of the bargain he was under a duty to pay the stipulated amount by the time mentioned in the agreement. On failure to do so within time, he was to be deprived of this special benefit. Such a clause cannot be companysidered to be a penalty clause. The expression penalty is an elastic term with many different shades of meaning but it always involves an idea of punishment. The impugned clause in the present case does number involve A infliction of any punishment it merely deprives the defendant No. 9 of a special advantage in case of default. Coming to the next question as to whether the High Court acted rightly in extending the period for payment of the second instalment, the learned companynsel for the parties have placed all the facts and circumstances of the case in detail in support of their respective arguments, and we have companysidered them closely and do number have any hesitation in holding that the High Court, assuming that it had the power to do so, was number justified in allowing the prayer of the defendant No. 9 permitting him to make a grossly belated payment. Even where such a power exists it is number to be exercised liberally. In Smt. Periyakkal and Ors. v. Smt. Dakshyani, 1983 2 SCR 467, relied upon by the respondents, this Court thus observed Of companyrse, time would number be extended ordinarily, number for the mere asking. It would be granted in rare cases to prevent manifest injustice. True the companyrt would number rewrite a companytract between the parties but the companyrt would relieve against a forfeiture clause In the present case, justice is manifestly in favour of the plaintiffs and against the companytesting respondents and further the clause in question was number a forfeiture clause. Even the High Court had to observe as follows The companyduct of the appellant i.e. the defendant No. 9 is indeed very reprehensible. Though extensions were obtain ed from us, he did number companyply with the directions and suffered order No. 72 dated 17.8.1981 to be passed. Only when his rights were taken away did he realise the real effect of what he had lost. In view of our companyclusion it is number necessary to decide the abstract question of the general power of the companyrt in this regard. The grievance of the plaintiffs that they were number afforded reasonable opportunity to companytest the defendants prayer is also well founded. The appeal in the High Court had been disposed of earlier. After the default in payment of the second instalment occurred the present appellants placed the circumstances before the companyrt and prayed for permission to refund the first instalment of Rs.10,000, received by them so that they companyld take full advantage of the companypromise decree. The matter was fully companysidered and decided by the order dated 17.8.1981 as mentioned by the High Court in the above quoted passage. In the situation the companynsel who represented the plaintiffs in the appeal companyld number have been held to have companytinued to represent them specially when they informed the companyrt that he had numberfurther authority and that numberice should be directly sent to the plaintiffs. However, we do number companysider it necessary to remand the matter to the High Court for fresh companysideration as we have companysidered all the relevant materials and have companye to a final companyclusion on merits in favour of the plaintiffs. For the reasons mentioned above, the order dated 31.8.1981 passed by the Orissa High Court in First Appeal No. 184 of 1972 is set aside and the application filed by Gostha Gopal Dey for extension of time is rejected.

DELIVERED BY B. SAWANT, J. B. SAWANT, J.- This is a bunch of appeals, special leave petitions and writ petitions. The first group companysists of CA Nos. 4708-12 of 1989, 4718-27 of 1989, WP C Nos. 666, 667, 693, 694, 774, and 910 of 1990 wherein companystitutional validity of the i Karnataka Excise Distillery and Warehouse Amendment Rules, 1989, ii Karnataka Excise Manufacture of Wine from Grapes Amendment Rules, 1989, Karnataka Excise Brewery Amendment Rules, 1989, Karnataka Excise Sale of Indian and Foreign Liquors Amendment Rules, 1989 and v Karnataka Excise Bottling of Liquor Amendment Rules, 1989 was unsuccessfully challenged by various parties before the Karnataka High Court, inter alia on the ground that the Rules in question affected adversely the fundamental right of the parties to carry on trade or business in liquor and that the said Rules were violative of Articles 14, 19 1 g , 47, 300-A, 301, and 304 of the Constitution of India. A Bench of three learned Judges of this Court which heard this group of matters has referred them to the Constitution Bench. The second group companysists of CA Nos. 6043-50, 6051 and 6052 of 1993. These appeals arise out of the decision of the Kerala High Court upholding the validity of the government order dated 9-12-1992 passed by the Government of Kerala deciding to cancel all foreign liquor licences issued under Rule 13 3 of the Kerala Foreign Liquor Rules, 1974 to Hotels, Restaurants and Tourist Homes. A Bench of two learned Judges has referred the said matters also to the Constitution Bench for decision on the question whether appellants have a fundamental right to carry on trade in liquor. The third group companysists of SLP C Nos. 13817-28, 16208, 16601-02, 17935, 17953 of 1993, 185, 2479, 2962-63, 5898 of 1994 and WP C Nos. 587, 591, 592, 608, 612 and 625 of 1993. These matters arise out of various decisions of the Andhra Pradesh High Court upholding the validity of the amendments to the Andhra Pradesh Foreign Liquor and Indian Liquor Rules, 1970 from time to time and A.P Regulation of Wholesale Trade, Distribution and Retail Trade in Indian Liquor and Foreign Liquor, Wine and Beer Act, 1993 hereinafter referred to as the A.P. 1993 Act . The High Court has held that the Rules and the amendments thereto as well as the Act are number invalid on the ground that they violate the right to carry on trade in liquor which is number fundamental. It appears that some of the parties affected by the decision of the Andhra Pradesh High Court upholding the validity of the enactments and rejecting the argument that the petitioners have a fundamental right to carry on trade in liquor, filed writ petitions in the High Court for a declaration that though the validity of the enactments had been upheld by the High Court the A.P. 1993 Act deals only with the taking over of trade but number business in liquor and, therefore, the State had numberright to prevent the writ petitioners from carrying on with the business of liquor during the validity of their licences. The argument was that trade is different from business. The High Court dismissed the petitions. SLP C Nos. 9422-24 of 1994 filed against the said decision, forming the fourth group, has also been referred to the Constitution Bench to be decided along with the matters in the above three groups. Thus in matters in the first three groups, this Bench has to answer one question, viz., whether the appellants petitioners have a fundamental right to carry on trade in liquor. The question involved in matters in the fourth group is different, viz., since the A.P. 1993 Act referred to above, deals only with the taking over of trade in liquor but number business, whether the State can prevent the petitioners from carrying on with the business of liquor as apart from trade, during the unexpired period of the licences. We will first deal with the matters in groups 1, 2 and 3 and, therefore, with the question whether the appellants petitioners have a fundamental right to carry on business in liquor. Before we proceed to examine the question, it is necessary at the outset to focus our attention on the precise companytroversy raised before us and which,it is claimed, arises out of the companyflicting decisions of this Court. For the purposes of companytentions advanced before us, liquor companyers number only those alcoholic liquids which are generally used as beverages and produce intoxication but also all liquids companytaining alcohol. Liquor is classified broadly into three classes, viz., i potable liquor which is used as beverage, liquor used in medicinal and toilet preparations and industrial liquor used for industrial purpose. Two rival companytentions of law are canvassed before us. One, that there is numberfundamental right to trade or business in liquor and that the State has power to regulate the trade or business by placing restrictions on such trade or business in the interests of the general public even to the extent of prohibiting companypletely such business or trade. The incidental companysequence which flows from this companytention is that the State has the exclusive privilege to sell liquor and this privilege can be sold under the relevant law. The State can, therefore, have also a monopoly in manufacturing, possessing and distributing liquor. The other companytention is that a citizen has a fundamental right to trade or business in liquor and the State can only place reasonable restrictions on the said right in the interests of general public by law made for the purpose under Article 19 6 of the Constitution. The State cannot, therefore, prohibit companypletely the said trade or business in liquor in the garb of regulating it, and the limitations or restrictions placed have to pass the test of reasonableness as in the case of trade or business in any other article. It is in the light of these rival companytentions that we have to examine the question raised before us. Two incidental questions which, therefore, arise are whether a monopoly for the manufacture, trade or business in liquor can be created in favour of the State and whether reasonable restrictions under Article 19 6 of the Constitution can be placed only by Act of Legislature or by a subordinate legislation as well. It is companytended that the State cannot carry on trade in liquor under Article 47 of the Constitution. If the law on the subject is companysidered to be law under Article 19 6 , it has to be on the basis that a citizen had got a fundamental right to trade in liquor. If the law is that a citizen has numberfundamental right, then Article 19 6 cannot be applied because the said article applies only to those rights which a citizen possesses. What a citizen cannot do under Article 19 1 , the State cannot do under Article 19 6 . Secondly, it is submitted that assuming that the State has got the power to carry on trade in liquor dehors Article 19 6 and under Article 298 of the Constitution, the power under Article 298 cannot extend to trade in liquor. This is so because the Union Government has numberexecutive power to trade in a companymodity which under Article 47 it is enjoined to prohibit. In support of the companytention that the appellants petitioners have a fundamental right to trade in liquor, it is argued firstly, that Entry 51 of List 11 specifically accepts the fact that the manufacture of alcohol can be for human companysumption. The said entry, among others, provides as follows Duty of Excise on intoxicating liquor for human companysumption. Entry 8 of List II specifically provides for production, manufacture, purchase and sale of intoxicating liquor. The implication of this entry is that till prohibition is introduced by applying Article 47, there is numberprohibition on companysumption of liquor, and hence there is numberprohibition for manufacture and sale of liquor. Secondly, it is submitted that there are other substances like tobacco which are more harmful to health than alcohol and they are being sold freely. A majority of the States did number introduce prohibition and some States which purported to do it, failed and reverted to the earlier pre-prohibition companydition. On the other hand, the revenue from the auction of excise, vend fees, liquor and other levies forms a major source of the revenue of the State. Hence the trade in liquor cannot be looked upon as an obnoxious trade. Thirdly, the Union Government itself has recognised under its Industrial Policy Resolution as early as in 1956 that the production of potable alcohol as an industry has to be recognised though regulated and the licences have to be freely granted for the manufacture of potable liquor. During the last several years, a large number of distillery, brewery and winery licences have been granted all over the companyntry. For all these reasons, it is submitted that there is numberwarrant for excluding liquor from the ambit of the words any occupation, trade or business under Article 19 1 g of the Constitution. We will first refer to the relevant provisions of the Constitution which have a bearing on the subject. Article 19 1 g provides that all citizens shall have the right to practise any profession or to carry on any occupation, trade or business. This right companyferred by the aforesaid provision is circumscribed by the provisions of clause 6 of the very article which reads as follows 6 . Nothing in sub-clause g of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the said sub-clause, and, in particular, numberhing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to,- the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or the carrying on by the State, or by a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. Thus Article 19 1 g read with Article 19 6 spells out a fundamental right of the citizens to practise any profession or to carry on any occupation, trade or business so long as it is number prohibited or is within the framework of the regulation, if any, if such prohibition or regulation has been imposed by the State by enacting a law in the interests of the general public. It cannot be disputed that certain professions, occupations, trades or businesses which are number in the interests of the general public may be companypletely prohibited while others may be permitted with reasonable restrictions on them. For the same purpose, viz., to subserve the interests of general public, the reasonable restrictions on the carrying on of any profession, occupation, trade, etc., may provide that such trade, business etc., may be carried on exclusively by the State or by a Corporation owned or companytrolled by it. The right companyferred upon the citizens under Article 19 1 g is thus subject to the companyplete or partial prohibition or to regulation, by the State. However, under the provisions of Article 19 6 the prohibition, partial or companyplete, or the regulation, has to be in the interests of the general public. Article 47 which is one of the Directive Principles of the State Policy reads as follows Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the companysumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. This article enjoins upon and in turn enables the State to take measures to raise the level of nutrition and the standard of living of its people and to improve the public health. Towards this end, the State is required to bring about prohibition of the companysumption of intoxicating drinks and drugs which are injurious to health. The prohibition may be companyplete or partial and it would also include regulation. It cannot be disputed that liquor is one such drink. Article 298 of the Constitution provides as follows Power to carry on trade, etc.- The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of companytracts for any purpose Provided that- a the said executive power of the Union shall, insofar as such trade or business or such purpose is number one with respect to which Parliament may make laws, be subject in each State to legislation by the State and b the said executive power of each State shall, insofar as such trade or business or such purpose is number one with respect to which the State Legislature may make laws, be subject to legislation by Parliament. Thus both the Union and the State Governments have within their respective spheres, power to carry on trade or business. Article 300-A provides that numberperson shall be deprived of his property save by authority of law. It is undisputed that if a citizen is carrying on the business according to the provisions of law, his business cannot be taken away save by authority of law, if such a law is enacted to further the purpose whether of Article 19 6 or Article 47. Article 301 reads as Freedom of trade, companymerce and intercourse.-Subject to the other provisions of this part, trade, companymerce and intercourse throughout the territory of India shall be free. The right given by this article to freely carry on trade, companymerce and intercourse throughout the territory of India is undisputedly subject to the same restrictions as is the right under Article 19 1 g . Apart from the restrictions placed on the right under Article 301, by the provisions of Articles 19 6 , 47, 302 and 303, the provisions of Article 304 also place such restrictions on the said right. So do the provisions of Article 305, so far as they protect existing laws and laws creating State monopolies. The provisions of the aforesaid articles, so far as they are relevant for our purpose, read together, therefore, make the position clear that the right companyferred by Article 19 1 g is number absolute. It is subject to restrictions imposed by the other provisions of the Constitution. Those provisions are companytained in Articles 19 6 , 47, 302, 303, 304 and 305. We may number refer to the relevant entries of List 11 of the Seventh Schedule to the Constitution which give power to the State Governments to make the laws in question. Entry 8 reads as follows Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. Entry 51 reads as follows 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 b opium, Indian hemp and other narcotic drugs and narcotics but number including medicinal and toilet preparations companytaining alcohol or any substance included in subparagraph b of this entry. Thus a State has legislative companypetence to make laws in respect of the above subjects. The relevant entry in List I which has a bearing on the subject is Entry 52 which reads as follows Industries, the companytrol of which by the Union is declared by Parliament by law to be expedient in the public interest. Under this entry, Parliament has enacted the Industries Development and Regulation Act, 1951 for short IDR Act and Item 26 of Schedule I of that Act reads as Fermentation Industries 1 Alcohol, 2 Other products of Fermentation and Distillery. Read with Section 2 of the IDR Act, the said entry would mean that the alcohol industry dealing in potable or numberpotable alcohol is a companytrolled industry within the meaning of the said Act. We are number in this reference companycerned with the question as to whether there is any companyflict between the relevant Acts of the respective State Legislatures and the Rules, Regulations, Notifications and Orders issued under the said Acts and the provisions of the IDR Act. It cannot further be denied that the pith and substance of the IDR Act is to provide the Central Government with the means of implementing their industrial policy which was announced in their resolution of 6-4-1948 and approved by the Central Legislature. That brings under Central companytrol the development and regulation of a number of important industries, the activities of which affect the companyntry as a whole and the development of which must be governed by economic factors of all-India import. The development of the industries on sound and balanced lines is sought to be secured by the licensing of all new undertakings. Hence the IDR Act companyfers on the Central Government power to make rules for the registration of existing undertakings and for regulating the production and development of the industries mentioned in the Schedule and also for companysultation with the Provincial number State Governments in these matters. The Act does number in any way denude the power of the State Governments to make laws regulating and prohibiting the production, manufacture, possession, transport, purchase and sale of intoxicating liquors meant for human companysumption but number for medicinal or toilet preparations and levying excise on them under Entries 8 and 51 of List 11. If there is any incidental encroachment by the relevant State Acts on the area occupied by the IDR Act, that will number invalidate the State Acts. The impugned judgments of the High Courts also mention that the State Acts have received the assent of the President. Be that as it may. We may number refer to the relevant authorities cited at the Bar. In State of Bombay v. EN. Balsara1 which is a decision of the Constitution Bench of five learned Judges, what fell for companysideration was the validity of the Bombay Prohibition Act, 1949. In that case, this Court held that in view of the provisions of Article 47 of the Constitution, the total prohibition on potable liquor would be reasonable. It does number appear that any companytentions were raised there on the basis of Article 19 1 g and hence there is numberdiscussion with reference to the said provision. In TB. Ibrahim v. Regional Transport Authority2 what fell for companysideration was the validity of the amendment in 1950 to Rule 268 of the Madras Motor Vehicles Rules, 1940 to empower the Transport Authority to alter from time to time the starting place and termini for motor vehicles. The appellant was the owner of a bus-stand in the municipal limits which was being used for several years as a starting place and terminus for buses plying to and from the said limits. The Transport Authority passed a resolution changing the starting place and terminus for companyvenience of the public. The appellant challenged the said resolution and companysequently the amendment to Rule 268, among others, as repugnant to Article 19 1 g of the Constitution. A Constitution Bench of five learned Judges dealing with this companytention held that the restrictions placed upon the use of the bus-stand for the purpose of picking up or setting down passengers cannot be companysidered to be unreasonable. It may be that the appellant by reason of the shifting of the busstand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys. There is numberfundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of the public companyvenience. The restriction imposed has the effect of terminating the use to which the stand has been put hitherto. The 1 1951 SCR 682 AIR 1951 SC 318 52 Cri LJ 1361 2 1953 SCR 290 AIR 1953 SC 79 restriction cannot be regarded as being unreasonable if the authority imposing such restriction has the power to do so. Whether the abolition of the stand was companyducive to public companyvenience or number is a matter entirely for the Transport Authority to judge and it is number up to the Court to substitute its opinion with that of the authority which is in the best position having regard to its knowledge of local companyditions, to appraise the situation. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner3, where the vires of Excise Regulation I of 1915 was under challenge on the ground of violation of Article 19 1 g , the Constitution Bench of five learned Judges, among other things, held that In order to determine the reasonableness of restrictions, envisaged by Article 19 6 , regard must be had to the nature of the business and the companyditions prevailing in that trade. These factors would differ from trade to trade and numberhard and fast rule companycerning all trades can be laid down. It cannot also be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in numberious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and number a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable companyditions as may be deemed by the governing authority of the companyntry essential to the safety, health, peace, order and morals of the companymunity. Some occupations by the numberse made in their pursuit, some by the odours they engender, and some by the dangers accompanying them require regulation as to the locality in which they may be companyducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualification in the parties permitted to use them, manufacture or sell them. The Court in this companynection referred to the observations of Field, J. in Crowley v. Henry Christensen4 a part of which is as follows The sale of such liquors in this way has, therefore been, at all times, by the companyrts of every State, companysidered as the proper subject of legislative regulation. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality and number of federal law. The police power of the State is fully companypetent to regulate the business to mitigate its evils or to suppress it entirely. There is numberinherent right in a citizen to thus sell intoxicating liquors by retail it is number a privilege of a citizen of the State or of a citizen of the United States. As it is a business attended with danger to the companymunity, it may, as already said, be entirely prohibited, or be permitted under such companyditions as will limit to the utmost its evils. It is a matter of legislative will only. 3 1954 SCR 873 AIR 1954 SC 220 4 34 L Ed 620 137 US 86 1890 The elimination and exclusion from business is inherent in the nature of liquor business and it will hardly be proper to apply to such a business principles applicable to trade which all companyld carry on. The provisions of the law cannot be attacked merely on the ground that they create a monopoly. Properly speaking, there can be a monopoly only when a trade which companyld be carried on by all persons is entrusted by law to one or more persons to the exclusion of the general public. Such, however, is number the case with the business of liquor. The Court for this purpose relied upon the following observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales5 Yet about this, as about every other proposition in this field, a reservation must be made, for their Lordships do number intend to lay it down that in numbercircumstances companyld the exclusion of companypetition so as to create a monopoly either in a State or Commonwealth agency, or in some other body, be justified. Every case must be judged on its own facts and its own setting of time. When the companytract is thrown open to public auction, it cannot be said that there is exclusion of companypetition and thereby monopoly is created. In State of Assam v. A.N. Kidwai, Commissioner of Hills Division and Appeals6 which is also a decision of the Constitution Bench of five learned Judges, the validity of the numberification by which the Commissioner of Hills Division and Appeals was appointed the Appellate Authority under Assam Revenue Tribunal Transfer of Powers Act, 1948, was under challenge. The rival claimants had applied for grant of licences and setting up of companyntry spirit shops and the parties who were dissatisfied with the orders of the Deputy Commissioner and those of the Excise Commissioner in appeals therefrom, appealed to the Appellate Authority whose orders were quashed by the High Court on the ground that the numberification companycerned was void. While dealing with the companytentions raised therein, the Court held that a perusal of the Act and the Rules made it clear that numberperson had any absolute right to sell liquor, and the purpose of the Act and the Rules was to companytrol and restrict the companysumption of intoxicating liquors, such companytrol and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue. In State of Bombay v. R.M.D. Chamarbaugwala7 which is also a decision of a Constitution Bench of five learned Judges, the challenge was to the Bombay Lotteries and Prize Competition Control and Tax Act, 1948 as amended by the Bombay Lotteries and Prize Competition Control and Tax Amendment Act, 1952. After referring to the observations made in the American decision in Phalen v. Virginia8, the Court held as follows SCR p. 925 5 1950 AC 235 1949 2 All ER 755 6 1957 SCR 295 AIR 1957 SC 414 7 1957 SCR 874 AIR 1957 SC 699 8 12 L Ed 1030 49 US 163 1850 It will be abundantly clear from the foregoing observations that the activities which have been companydemned in this companyntry from ancient times appear to have been equally discouraged and looked upon with disfavour in England, Scotland, the United States of America and in Australia in the cases referred to above. We find it difficult to accept the companytention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident companymon man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home companyld possibly have been intended by our Constitution makers to be raised to the status of trade, companymerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19 1 g . We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient companyntrys trade, companymerce or intercourse to be declared as free under Article 301. It is number our purpose number is it necessary for us in deciding this case to attempt an exhaustive definition of the word trade, business, or intercourse. We are, however, clearly of opinion that whatever else may or may number be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are companyvinced and satisfied that the real purpose of Articles 19 1 g and 301 companyld number possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra companymercium although the external forms, formalities and instruments of trade may be employed and they are number protected either by Article 19 1 g or Article 301 of our Constitution. The Court further held, relying on the observations in United States v. Kahriger9, Lewis v. United States of America10 and Mann v. Nash11 that the fact of issuing a licence or imposing a tax means numberhing except that the licensee shall be subject to numberpenalties under the law if he pays it. The Government may tax what it also forbids and that numberody has a companystitutional right to gamble but that if he elects to do so, though it be unlawful, he must pay tax. The revenue authorities are merely taxing the individual with reference to certain facts. They are number partners or sharers in the illegality. The crime is number a business and the fact that regulatory provisions have been enacted to companytrol gambling by issuing licences and by imposing taxes does number in any way alter the nature of gambling which is inherently vicious and pernicious. The Court further held that the same result can be arrived at by applying the doctrine of pith and substance. When Article 19 1 g guarantees or Article 301 declares the freedom of trade, they describe human activities in a specific aspect. They single out attributes 9 97 L Ed 754 345 US 22 1952 10 99 L Ed 475 348 US 419 1954 11 1932 1 KB 752 1932 All ER Rep 956 101 LJKB 270 which the act or transaction may wear and make the freedom, which they companyfer, depend upon those attributes. The freedom secured by the two articles implies that numberunreasonable restraint or burden shall be placed upon the act falling under that description because it is trade or companymerce or intercourse. The Court, then held that the Act impugned there did number purport directly to interfere with trade, companymerce or intercourse as such, for the criterion of its application was the specific gambling nature of the transaction which it restricted. The purpose of the Act was number to restrict anything which brought the transactions under the description of trade, companymerce or intercourse. The Act was in pith and substance, an Act with respect to betting and gambling and to companytrol and restrict betting and gambling was number to interfere with trade, companymerce or intercourse as such but to keep their flow free and unpolluted and to save them from antisocial activities. Hence the validity of that Act had number to be decided by the yardstick of reasonableness and public interest laid down in Articles 19 6 and 304. The appeal against the stringency and harshness, if any, of the law does number lie to companyrt of law. In that view of the matter, the Court felt that it was number necessary to companysider or express any opinion with regard to the vexed question whether restriction companytemplated under Articles 19 6 and 304 b may extend to total prohibition. This was so because, the Court felt that it companyld number persuade itself to hold that Article 19 1 g or Article 301 companyprises all activities undertaken with a view to profit as trade within the meaning of those articles. In this view of the matter, the Court held that the prize companypetition which the respondents there were carrying on being of a gambling nature, companyld number be regarded as trade or companymerce and as such, the respondents companyld number claim any fundamental right under Article 19 1 g in respect of such companypetitions number were they entitled to the protection of Article 301. In Nagendra Nath Bora v. Commissioner of Hills Division Appealsl2 the appeals arose out of the orders passed by the revenue authorities under the provisions of Eastern Bengal and Assam Excise Act, 1910. The dispute was between the rival claimants who had tendered for the settlement of companyntry spirit shops. While dealing with the matters in question, the Constitution Bench of five learned Judges observed by referring to the State of Assam v. A.N. Kidwai6 and the observations made therein that numberone had an inherent right to settlement of liquor shops. When the State by public numberice invites candidates for settlement to make their tenders and in pursuance of such a numberice, a number of persons make such tenders, each one makes a claim for himself in opposition to the claims of the others, and the public authorities companycerned have to choose from amongst them. The question whether an administrative authority on such occasions functions merely in an administrative or quasi-judicial capacity must be determined on an examination of the statute and its rules. The Court held 12 1958 SCR 1240 AIR 1958 SC 398 that the authorities cannot be said to pass purely administrative orders which were beyond the ambit of High Courts power of supervision and companytrol. In Narendra Kumar v. Union of India13 which is a decision of the Constitution Bench of five learned Judges, the question whether restriction on fundamental rights includes their prohibition, fell for companysideration squarely. On different dates prior to 3-4-1958, the petitioners in that case had entered into companytracts of purchase of companyper with importers at Bombay and Calcutta, but before they companyld take delivery from the importers, the Government of India in exercise of its powers under Section 3 of the Essential Commodities Act, 1955, issued on 2-4-1958 Non-ferrous Metal Control Order, 1958. Clause 3 of the Order provided that numberperson shall sell or purchase any number-ferrous metal at a price which exceeded the amount represented by an addition of 3.5 per cent to its landed companyt, while clause 4 prohibited any person from acquiring any number-ferrous metal except under and in accordance with the permit issued in that behalf by the Controller in accordance with such principles as the Central Government may from time to time specify. No such principles were, however, published in the Gazette number laid before the Houses of Parliament. The Court held that the word restriction in Article 19 5 and 6 of the Constitution includes cases of prohibition also. Where the restriction reaches the stage of total restraint of rights, special care has to be taken by the companyrts to see that the test of reasonableness is satisfied by companysidering the question in the background of the facts and circumstances under which the Order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than what was necessary in the interests of the general public. The Court, in this companynection referred to Chintaman Rao v. State of M. p 14, companyverjee case3 and Madya Bharat3 Cotton Assn. Ltd. v. Union of India15. The prohibition, according to the Court, has to be treated as only a kind of restriction. The Court then observed as follows SCR pp. 386-87 After Article 19 1 has companyferred on the citizen the several rights set out in its seven sub-clauses, action is at once taken by the Constitution in clauses 2 to 6 to keep the way of social companytrol free from unreasonable impediment. The raison detre of a State being the welfare of the members of the State by suitable legislation and appropriate administration, the whole purpose of the creation of the State would be frustrated if the companyferment of these seven rights would result in cessation of legislation in the extensive fields where these seven rights operate. But without the saving provisions that would be the exact result of the Article 13 of the Constitution. It was to guard against this position 13 1960 2 SCR 375 AIR 1960 SC 430 14 1950 SCR 759 AIR 1951 SC 11 8 15 AIR 1954 SC 634 that the Constitution provided in its clauses 2 to 6 that even in the fields of these rights new laws might be made and old laws would operate where this was necessary for general welfare. Laws imposing reasonable restriction on the exercise of the rights are saved by clause 2 in respect of rights under sub-clause a where the restrictions are in the interests of the security of the State and of other matters mentioned therein by clause 3 in respect of the rights companyferred by sub-clause b where the restrictions are in the interests of the public order by clauses 4, 5 and 6 in respect of the rights companyferred by sub-clauses c , d , e , f g the restrictions are in the interest of the general public in clause 5 which is in respect of rights companyferred by sub-clauses d , e f also where the restrictions are for the protection of the interests of any scheduled tribe. But for these saving provisions such laws would have been void because of Article 13, which is in these words All laws in force in the territory of India immediately before the companymencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency be void 2 The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void As it was to remedy the harm that would otherwise be caused by the provisions of Article 13, that these saving provisions were made, it is proper to remember the words of Article 13 in interpreting the words reasonable restrictions on the exercise of the right as used in clause 2 . It is reasonable to think that the makers of the Constitution companysidered the word restriction to be sufficiently wide to save laws Inconsistent with Article 19 1 , or taking away the rights companyferred by the article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be numberdoubt therefore that they intended the word restriction to include cases of prohibition also. The companytention that a law prohibiting the exercise of a fundamental right is in numbercase saved, cannot therefore be accepted. In A.B. Abdulkadir v. State of Keralal6, which is a decision of Constitution Bench of five learned Judges, the Court observed that the system of auctioning of the right to possess excisable goods like companyntry liquor, ganja, and bhang was only a method of realising duty through grant of licences to those who made the highest bid at the auctions and thus to raise revenue. In that case, what was under challenge was the system of auctions under the Cochin Tobacco Act, 1084 M.E. with the object of companytrolling the cultivation, production, manufacture, storage and sale of tobacco. By majority, the Court held that the income realised from such auction was in the nature of excise duty. 16 1962 Supp 2 SCR 741 AIR 1962 SC 922 In Krishna Kumar Narula v. State of J K17, the question whether the right to carry on business of liquor is a fundamental right fell directly for companysideration before a Constitution Bench of five learned Judges. Since heavy reliance is placed on behalf of the appellants petitioners on this case to companytend that the right to carry on business in liquor is fundamental, it is necessary to examine this case a little more in detail. The facts were that the appellant was carrying on business in liquor in his hotel under an annual licence issued under Section 20 of the Jammu Kashmir Excise Act, 1958. He had applied for a fresh licence for another year. Meanwhile, the Excise Department received companyplaints from the inhabitants of the locality objecting to the location of the bar in that locality. The companyplaints were inquired into and the appellant was informed by the Commission that the licence will number be issued unless he shifted the premises to some other approved locality. Writ Petition filed by the appellant for quashing the order of the Commissioner was dismissed by the High Court. While dealing with the appeal against the High Courts order, this Court companymenting on the companybined reading of clauses 1 and 6 of Article 19 observed as follows SCR pp. 53-54 A companybined reading of clauses 1 and 6 of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general public. It is, therefore, obvious that unless dealing in liquor is number trade or business, a citizen has a fundamental right to deal in that companymodity. The learned Advocate General companytended that dealing in liquor was number business or trade, as the dealing in numberious and dangerous goods like liquor was dangerous to the companymunity and subversive of its morals. The acceptance of this broad argument involves the position that the meaning of the expression trade or business depends upon and varies with the general acceptance of the standards of morality obtaining at a particular point of time in our companyntry. Such an approach leads to incoherence in thought and expression. Standards of morality can afford a guidance to impose restrictions, but cannot limit the scope of the right. So too, a legislature can impose restrictions on, or even prohibit the carrying on of a particular trade or business and the Court, having regard to the circumstances obtaining at a particular time or place may hold the restrictions or prohibition reasonable. The question, therefore, is, what is trade or business? Though the word business is ordinarily more companyprehensive than the word trade, one is used as synonymous with the other. It is number necessary to bring out the finer points of distinction between the said two companycepts in this case. In the words of S.R. Das, J., as he then was, in Narain Swadeshi Weaving Mills Commissioner of Excess Profits Tax 8, the word business companynotes some real, substantial and systematic 17 1967 3 SCR 50 AIR 1967 SC 1368 18 1955 SCR 952, 961 AIR 1955 SC 176, 181 or organised companyrse of activity or companyduct with a set purpose. Even accepting this test, if the activity of a dealer, say, in ghee is business then how does it cease to be business if it is in liquor? Liquor can be manufactured, brought or sold like any other companymodity. It is companysumed throughout the world, though some companyntries restrict or prohibit the same on economic or moral grounds. The morality or otherwise of a deal does number affect the quality of the activity though it may be a ground for imposing a restriction on the said activity. The illegality of an activity does number affect the character of the activity but operates as a restriction on it. If a law prohibits dealing in liquor, the dealing does number cease to be business, but the said law imposes a restriction on the said dealing. The Court then referred to the decision in TB. Ibrahim case2. According to the respondent-State there, it was held in that case that dealing in liquor was number a business or trade within the meaning of Article 19 of the Constitution and there is numberfundamental right in a citizen to carry on the business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of public companyvenience. The Court observed that in that case this Court did number say that there was numberfundamental right to do business but only held that a citizen companyld number claim that his fundamental right companyld number be restricted in public interests. Nor, according to the Court, did the decision in Cooverjee case3 lay down any such proposition. According to the Court, in that case this Court held that the impugned regulation was a reasonable restriction within the meaning of Article 19 6 . Referring to the extract from the judgment of Field, J. in Crowley v. Christensen4 referred to in that judgment which we have already quoted above and the companycurrence expressed by the Court there with the said observations, the Court observed that the said passage from the judgment of Field, J. had numberhing to do with the companystruction of Article 19 1 g of the Constitution. According to the Court, there the learned Judge was companysidering the scope of the police power and the said observations were made in that companytext and those observations were applied by this Court in Cooverjee case3 in companysidering the reasonableness of the restrictions imposed upon the fundamental rights. According to the Court, the perusal of the entire judgment shows that the Court had indeed companyceded the fundamental right but held that the said regulation operated as reasonable restriction on the said rights. Similarly, according to the Court the following observations of this Court in A.N. Kidwai case6 had numberrelevance to the inquiry, viz., whether there was a fundamental right to carry on business in liquor. The said observations are as follows SCR p. 30 1 A perusal of the Act and rules will make it clear that numberperson has any absolute right to sell liquor and that the purpose of the Act and the rules is to companytrol and restrict the companysumption of intoxicating liquors, such companytrol and restriction being obviously necessary for the preservation of public health and morals, and to raise revenue. According to the Court, the said observations only mean that numberabsolute right to sell liquor was given to any person under the Act and that the said right was companytrolled by the provisions of the said Act. The Court further held that the respondent State companyld number draw any support from the decision of this Court in Nagendra Nath case12 because the question there was in regard to the scope of Articles 226 and 227 of the Constitution vis-avis the orders passed by the appropriate authorities under the Eastern Bengal and Assam Excise Act, 1910 although in that case two decisions of this Court, viz., Cooverjee case3 and A.N. Kidwai case6 were numbericed, and it was observed that there was numberinherent right to the settlement of liquor shops. According to the Court numberquestion of fundamental right under Article 19 1 arose in that case and hence the said observations were unhelpful to the State. The Court also found that the following observations made in the R.M.D. Chamarbaugwala case7 were also number helpful to the State because that decision only laid down that gambling was number business or trade SCR p. 925 We find it difficult to accept the companytention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident companymon man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home companyld possibly have been intended by our Constitutionmakers to be raised to the status of trade, companymerce or intercourse and to be made the subjectmatter of a fundamental right guaranteed by Article 19 1 g . Since the Court was number companycerned with gambling, the said observations were number relevant. The Court then companycluded with the scrutiny of the earlier decisions of this Court referred to above, that they did number support the companytention that dealing in liquor was number business or trade. According to the Court, in those decisions this Court was only companysidering the provisions of the various Acts which companyferred a restricted right to business. None of the decisions held that a right to do business in liquor was number a fundamental right. The Court, therefore, held that dealing in liquor was business and a citizen has a right to do business in that companymodity but a State can make a law imposing reasonable restrictions on the said right in public interest. We will have an occasion to deal with the Courts observations and companyclusions in this case at the appropriate stage hereinafter. To proceed further with the decisions of this Court in chronological order, we may number refer to the next decision, viz., State of Orissa v. Harinarayan Jaiswal19 which is a decision of two learned Judges. The facts were that the first respondent was carrying on business of companyntry liquor in 19 1972 2 SCC 36 1972 3 SCR 784 exercise of the powers companyferred by Section 29 2 of the Bihar and Orissa Excise Act, 1915. The appellant State issued an order and in pursuance of that order a date was numberified for selling by public auction the exclusive privilege of selling by retail, companyntry liquor in eight shops. The respondent was the highest bidder-but his bid was rejected because the Government was of the view that inadequate prices had been offered as a, result of companylusion between the bidders. Thereafter, tenders were called for and the appellant accepted the tender in respect of one shop and rejected the others as it was again of the opinion that price offered was inadequate. Thereafter, the remaining seven shops were sold by private negotiations for substantially higher prices. The High Court had allowed the writ petition filed by the respondent and in appeal this Court referred to the decisions which we have cited above including the decision in K.K. Narula case 17. Hegde, J. speaking for the Court held as follows SCC p. 43, para 12 It is true that this Court has ruled that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of Article 19 1 g see Krishna Kumar Narula v. Jammu and Kashmir State17. At the same time, it was held by this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner3 that for determining reasonable restrictions within the meaning of Article 19 6 of the Constitution on the right given under Article 19 1 g , regard must be had to the nature of the business and the companyditions prevailing in a particular trade State has power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public and there is numberinherent right in a citizen to sell intoxicating liquors by retail. In Amar Chandra Chakraborty v. Collector of Excise2O which is a decision of Constitution Bench of five learned Judges, the challenge was to the Excise Collectors order withdrawing liquor licence before expiry of time. Referring to the decision in K.K. Narula case17, the Court held there as follows SCC p. 449, para 13 It is numberdoubt true that this Court in the case cited held that dealing in liquor is business and a citizen has a right to do business in that companymodity but it was added that the State can make a law imposing reasonable restrictions on the said right in public interest. In dealing with reasonable restrictions numberabstract standard or general pattern is possible to lay down. In each case, regard has to be had to the nature of trade or business, the companyditions prevailing in such trade or business, the nature of the infringement alleged, and the underlying purpose of the restriction, the imposition of which is alleged to companystitute an infringement. The Court then referred to the companytention on behalf of the appellant that the provisions of Section 43 of the Bengal Excise Act, 1909 which empowered the licensing authority to withdraw the licence for any reason 20 1972 2 SCC 442 1973 1 SCR 533 whatsoever number falling under Section 42 of that Act, were unreasonable and violative of the appellants fundamental right under Article 19, and held as follows SCC pp. 449- 50, para 15 .lm15 It is numberdoubt true that in Section 43, there is numberexpress mention of the precise grounds on which the licence can be withdrawn. But in our opinion keeping in view the nature of the trade or business for which the grant of licence under the Act is provided the cause companytemplated by Section 43 must be such as may have reasonable nexus with the object of regulating this trade or business in the general interest of the public. In the determination of reasonableness of restrictions on trade or business regard must be had to its nature, the companyditions prevailing in it and its impact on the society as a whole. These factors must inevitably differ from trade to trade and numbergeneral rule governing all trades or businesses is possible to lay down. The right to carry on lawful trade or business is subject to such reasonable companyditions as may be companysidered essential by the appropriate authority for the safety, health, peace, order and morals of the society. Article 47 of our Constitution directs the State to endeavour to prohibit companysumption of intoxicating drinks and of drugs which are injurious to health except for medicinal purposes. In the case of companyntry liquor, therefore, the question of determining reasonableness of the restriction may appropriately be companysidered by giving due weight to the increasing evils of excessive companysumption of companyntry liquor in the interests of health and social welfare. Principles applicable to trades which all persons carry on free from regulatory companytrols do number apply to trade or business in companyntry liquor this is so because of the impact of this trade on society due to its inherent nature. In Nashirwar v. State of M. p.21 which is a judgment of three learned Judges,while dealing with the question whether the State has power to grant liquorlicence by public auction and whether the said power violated fundamental right under Article 19 1 g of the Constitution, the Court held as follows SCC pp. 36-37, paras 23-25 There are three principal reasons to hold that there is numberfundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades in numberious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of Intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the companysumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor. In Balsara case this Court referred to Article 47 and said that the idea of prohibition was companynected with public health. The challenge to a prohibition law under our Constitution was made under Articles 14 and 21 1975 1 SCC 29 1975 2 SCR 861 19 in Balsara case1. This Court held that absolute prohibition of manufacture or sale of liquor is permissible and the only exception can be for medicinal preparations. The companycept of inherent right of citizens to do business in liquor is antithetical to the power of the State to enforce prohibition laws in respect of liquor. Das, C.J. in State of Bombay v. R.M.D. Chamarbaugwala7 said that gambling companyld number be regarded as trade or business within the meaning of Article 19 1 f and g and Article Inherently vicious activities cannot be treated as entitling citizens to do business or trade in such activities. No one can deal in companynterfeit companyns or currency numberes. Das, C.J. held that activities which are criminal, or dealing in articles or goods which are res extra companymercium companyld number have been intended to be permitted by Article 19 1 f and g relating to fundamental rights to trade or business. Referring to K.K. Narula case17 the Court held that it was number companyrect to read the said decision to mean that there was a fundamental right to do business in liquor. According to the Court, the said decision was that dealing in liquor is business and a citizen had a right to do business in that companymodity and the State companyld impose reasonable restrictions on that right in public interest. If the State companyld prohibit business in liquor as held in EN. Balsara case1 that established that the State had exclusive right or privilege to manufacture, possess, or sell intoxicating liquor and, therefore, the State granted a right or privilege to persons in the shape of licence or lease. The Court then referred to Harinarayan Jaiswal case19 and stated that that case had explained K.K. Narula case17. The Court then observed as follows SCC p. 39, para 35 Trade in liquor has historically stood on a different footing from other trades. Restrictions which are number permissible with other trades are lawful and reasonable so far as the trade in liquor is companycerned. That is why even prohibition of the trade in liquor is number only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of companyplete companytrol over all aspects of intoxicants, viz., manufacture, companylection, sale and companysumption. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue. That is the view of this Court in Bharucha case3 and Jaiswal case19 The Court also held that since in Cooverjee case3, in numberuncertain terms this Court had repelled the citizens companytention of inherent right to sell intoxicating liquor and since Cooverjee case3 was a Constitution Bench decision, K. Narula case17 which is also a Constitution Bench decision, cannot be said to have overruled the decision in Cooverjee case3. In Har Shankar v. Dy. Excise and Taxation Commr22 which is a decision of Constitution Bench of five learned Judges, the question whether 22 1975 1 SCC 737 1975 3 SCR 254 a citizen had a fundamental right to trade in intoxicants and whether State had power to prohibit absolutely every form of activity relating to intoxicants, fell directly for companysideration. While dealing with it, after referring to all the earlier decisions including the decision in K.K. Narula case17, the Court held as follows SCC pp. 755-56, paras 47-48 These unanimous decisions of five Constitution Benches uniformly emphasised after a careful companysideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from the business is inherent in the nature of liquor business, that numberperson has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised companymunities. The companytention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected. But, in spite of the weight of this authority, a Constitution Bench struck a different numbere in Krishna Kumar Narula v. State of J K17 It would, however, appear that the learned Judges of the High Court had differed on the question whether the appellant had a fundamental right to do business in liquor and this Court desired to make the position clear in order to avoid further companyfusion in the matter. The decisions in Cooverjee case3, Kidwai case6 and Nagendra Nath case12 were cited before the Court but it took the view that they did number support the companytention that dealing in liquor was number business or trade or that a right to do business in liquor was number a fundamental right. The Court then referred to the decision in M.D. Chamarbaugwala case7 and observed as follows SCC pp. 757-759, paras 50, 53 54 This decision was also cited before the Court in Krishna Kumar case17 but it said This decision only lays down that gambling is number business or trade. We are number companycerned in this case with gambling. With great respect, the reasons mentioned by Das, C.J. for holding that there can be numberfundamental right to do trade or business in an activity like gambling apply with equal force to the alleged right to trade in liquor and those reasons may number be brushed aside by restricting them to gambling operations. In our opinion, the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decisions of this Court in Balsara case1, Cooverjee case3, Kidwai case6, Nagendra Nath case12, Amar Chakraborty case2O and the R.M.D.C. case7, as interpreted in Harinarayan Jaiswal case19 and Nashirwar case21. There is numberfundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be numbereffective regulation of various forms of activities in relation to intoxicants. In American Jurisprudence, Volume 30 it is stated that while engaging in liquor traffic is number inherently unlawful, nevertheless it is a privilege and number a right, subject to governmental companytrol page 538 . This power of companytrol is an incident of the societys right to self protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime pp. 5 39, 540, 54 1 . It was unnecessary in Krishna Kumar Narula case17 to examine the question from this broader point of view, as the only companytention bearing on the companystitutional validity of the provision impugned therein was number permitted to be raised as it was number argued in the High Court. The discussion of the question whether a citizen has a fundamental right to do trade or business in liquor proceeded in that case, avowedly, from a desire to clear the companyfusion arising from the different views expressed by the two Judges of the High Court. This may explain why the Court restricted its final companyclusion to holding that dealing in liquor is business and the citizen has a right to do business in that companymodity. The Court did number say, though such an implication may arise from its companyclusion, that the citizen has a fundamental right to do trade or business in liquor. If we may repeat, Subba Rao, C.J. said We, therefore, hold that dealing in liquor is business and a citizen has a right to do business in that companymodity but the State can make a law imposing reasonable restrictions on the said right, in public interests. It is significant that the judgment in Krishna Kumar Narula case17 does number negate the right of the State to prohibit absolutely all form of activities in relation to intoxicants. The wider right to prohibit absolutely would include the narrower right to permit dealing in intoxicants on such terms of general application as the State deems expedient. In Lakhanlal v. State of Orissa23 which is a decision of two learned Judges,the Court after referring to the decisions in Cooverjee case3, K.K. Narulacase17 and Har Shankar case22 reiterated that there was numberfundamental right to trade or business in intoxicants and that in all their manifestations these rights were vested in the State and indeed without such vesting there companyld be numbereffective regulation of various forms of activities in relation to intoxicants. In Sat Pal and Co. v. Lt. Governor of Delhi24 which is a decision of two learned Judges, it was observed that if there is numberfundamental right to carry on trade or business in liquor, there is numberquestion of its abridgement of any restriction which can be styled as unreasonable. The Court reiterated the 23 1976 4 SCC 660 1977 1 SCR 811 24 1979 4 SCC 232 1979 SCC Tax 322 1979 3 SCR 651 view taken in Har Shankar case22 that the State under its regulatory power has a right to companytrol or even to prohibit absolutely every form of activity in relation to intoxicants apart from anything else, its import too. This power of companytrol is a question of societys right to self-protection and it rests upon the right of the State to act for the health, moral and welfare of the people. Liquor traffic is a source of pauperism and crime. In Southern Pharmaceuticals and Chemicals v. State of Kerala25 which is a decision of three learned Judges, the Court held that numbercitizen has any fundamental right guaranteed under Article 19 1 g of the Constitution to carry on trade in any numberious and dangerous goods like intoxicating drugs or intoxicating liquors. In State of M.R v. Nandlal Jaiswal26 the Bench of two learned Judges reiterated that it is well settled by several decisions of this Court including the decision in Har Shankar case22 that there is numberfundamental right in a citizen to carry on trade or business in liquor. The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants and its manufacture, storage, export, import, sale and possession. No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be companypelled to part with its exclusive right or privilege of manufacturing and selling liquor. In Doongaji Co. 1 v. State of M.p27 a Bench of two learned Judges while dealing with the question whether, after the expiration of the licence given to the appellant, fixation of the prices of the plant and machinery of the distillery and the attached warehouses and stock-in-trade and payment thereof to the appellant, was a companydition precedent to taking possession thereof and giving delivery to the new licensee which was a State-owned Corporation found on facts that the appellant had numberexclusive possession of the distillery which always remained with the Excise Department and the appellant was only working out the companytract of manufacturing rectified spirit in the distillery and wholesale supply of the same to the retail vendors within the area attached to it. Due to numbercooperation of the appellant, possession was taken and delivered to the incoming licensee as per the Rules and the appellant was number entitled to restitution. In that companynection, the Court observed as follows SCC p. 320, para 15 It is settled law by several decisions of this Court that there is numberfundamental right to a citizen to carry on trade or business in liquor. The State under its regulatory power, has power to prohibit absolutely any form of activity in relation to an intoxicant, its manufacture, possession, import and export. No one can claim, as against the State, the right to carry on trade or business in any intoxicants, number the State be companypelled to part with its exclusive right or privilege of manufacture, sale, storage 25 1981 4 SCC 391 1981 SCC Tax 320 26 1986 4 SCC 566 27 1991 Supp 2 SCC 313 AIR 1991 SC 1947 of liquor. Further when the State has decided to part with such right or privilege to the others, then State can regulate companysistent with the principles of equality enshrined under Article 14 and any infraction in this behalf at its pleasure is arbitrary violating Article 14. Therefore, the exclusive right or privilege of manufacture, storage, sale, import and export of the liquor through any agency other than the State would be subject to rigour of Article 14. We may number deal with the decisions relating to trade or business in industrial alcohol. In Indian Mica Micanite Industries v. State of Bihar28, a Constitution Bench of five learned Judges was companycerned only with the question whether the fee levied under Rule III of the Bihar and Orissa Excise Rules on denatured spirit used and possessed by the appellant had sufficient quid pro quo for that levy. The question whether the citizen had a fundamental right to carry on trade or business in industrial alcohol was neither raised number answered. Dealing with the question raised before it, the Court held, among other things, that before a levy can be upheld as a fee, it must be shown that the levy has a reasonable companyrelationship with the services rendered by the Government. The companyrelationship is essentially a question of fact. On the facts of that case, the Court found that the only service rendered by the Government to the appellant and to other similar licensees was that the Excise Department had to maintain an elaborate staff number only for the purposes of ensuring that denaturing is done properly by the manufacturer but also to see that the subsequent possession of denatured spirit in the hands either of a wholesale dealer or retail seller or any other licensee or permitholder was number misused by companyverting the denatured spirit into alcohol fit for human companysumption. Since the State in that case, had number chosen to place before the Court the material in its possession from which the companyrelationship between the levy and the services rendered companyld be established at least in a general way, the Court held that the levy under the impugned rule companyld number be justified. In State of U.P v. Synthetics and Chemicals Ltd.29 which is a decision of two learned Judges of this Court, the facts were that the State legislature had enacted the U.P Excise Amendment, Act 1972 30 of 1972 . Under numberification dated 3-11-1972, the Government was authorised to sell by auction the right of retail or wholesale vend of foreign liquor. The new rules were accordingly framed, the effect of which was that a vend-fee of Rs 1. IO per bulk litre was imposed. The Allahabad High Court, however, held the numberification to be ultra vires. However, after the decision of this companyrt in Nashirvar case21 and Har Shankar case22 where the States power to auction the right to vend, by retail or wholesale, foreign liquor was upheld, the State Legislature enacted the U.P. Excise Amendment Act, 1972 by P Excise Amendment Re-enactment and Validation Act, 1976 28 1971 2 SCC 236 29 1980 2 SCC 441 5 of 1976 . Thereafter the High Court upheld the validity of the re-enacted Act and against that appeals were preferred here. The vend fee was made payable in advance on denatured spirit issued for industrial purposes. In that case, the Court held that the expression intoxicating liquor in Entry 8 of List 11 of Seventh Schedule of the Constitution is number companyfined to potable liquor alone but would include all kinds of liquor which companytain alcohol. Hence the expression companyered alcohol manufactured for the purpose of industries such as industrial alcohol. The Court also held that the words foreign liquor in Section 24-A of the State Act included the denatured spirit and the said words companyld number be given a restricted meaning for the word companysumption cannot be companyfined to companysumption of beverages alone. When the liquor is put to any use such as manufacture of any articles, liquor is all the same companysumed. Further, Section 4 2 of the Act provides that the State may declare what shall be deemed to be companyntry liquor or foreign liquor and the State had under the rules issued the numberification defining foreign liquor as meaning all rectified, perfumed, medicated and denatured spirit wherever made. The Court further held that specially denatured spirit for industrial purposes is number different from denatured spirit. The denatured spirit mentioned in the rules in question was treated as including specially denatured spirit for industrial purposes. The denatured spirit has ethyl alcohol as one of its companystituents. The specially denatured spirit for industrial purposes is different from denatured spirit only because of the difference in the quality and quantity of the denaturants. Specially denatured spirit and ordinary denatured spirits are classified according to the use and the denaturants used. Hence the definition of alcohol in the rules in question included both ordinary as well as specially denatured spirit. The Court further held that although it was true that the stand taken by the State Government in the earlier proceedings in the High Court was that the levy was in the nature of excise duty or a fee and the present stand was that it was neither a duty number a fee but only a levy for the companyferment of the exclusive privilege, that would number make any difference so long as the Government has the right to impose the levy. The levy was imposed for permission granted in favour of the licensees and allotment orders of denatured spirits issued to them from the various distilleries. The parties having paid the fee, had taken possession of denatured spirit from the distilleries and the re-enacted legislation, viz., Act 5 of 1976 had only restored the status quo enabling the State to companylect the levy validly made under the earlier Act 30 of 1972 which was found to be illegal by the High Court. Since the State had exclusive right of manufacturing and selling of intoxicating liquors, the imposition of vend fee on denatured spirit and the grant of licences to wholesale vend of denatured spirit was within the legislative companypetence of the State under Entry 8 of List II. The Court further held that the Ethyl Alcohol Price Control Order issued by the Central Government in exercise of power companyferred under Section 18-G of the IDR Act did number explicitly or impliedly take away the power of the State Government to regulate the distribution of intoxicating liquor by companylecting a levy for parting away with its exclusive rights. The power of the State under Entry 24 of List II is subject to the provisions of Entry 52 of List I. Therefore, the power of Parliament and the State Legislature were companyfined to Entry 52 of List I and Entry 24 of List II respectively. Parliament would have had exclusive power to legislate in respect of industry numberified by Parliament but the provisions of Entry 26 of List 11 and Entry 33 of List III would also have to be taken into account for determining the scope of legislative power of Parliament and the State. Entry 33 of List III enables a law to be made regarding the production, supply and distribution of products of a numberified industry. Thus a fair scrutiny of the relevant entries made it clear that the power to regulate numberified industries is number exclusively within the jurisdiction of Parliament. Hence, it cannot be companytended that after passing of the Industries Development and Regulation Act, 195 1, the claim by the State to monopoly with regard to the production and manufacture and the sale of the denatured spirit or the industrial alcohol was unsustainable. In Synthetics and Chemicals Ltd. v. State of U.p3O which is a decision of Constitution Bench of seven learned Judges, the question was with regard to the validity of levy on industrial alcohol. The Court held that it must accept the decision that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and or check industrial alcohol being used as intoxicating or drinkable alcohol. The question, according to the Court, was whether in the garb of regulations, the legislation which is in pith and substance fee or levy which has numberconnection with the companyt or expenses administering the regulations can be imposed purely as a regulatory measure. Judged by the pith and substance of the impugned legislation, the Court held that the levies in question companyld number be treated as part of regulatory measures. The Court further held that the State had power to regulate though number as emanation of police power but as an expression of the sovereign power of the State. But that power has its limitations. The Court then observed that only in two cases the question of industrial alcohol had companye up for companysideration before this Court. One in Synthetics and Chemicals Ltd. case29 and the other in Indian Mica and Micanite Industries28. The latter cases starting with EN. Balsara case1 are of potable liquor. The Court then referred to K.K. Narula case 17 and observed as follows SCC pp. 155-56, para 76 there was numberright to do business even in potable liquor. It is number necessary to say whether it is a good law or number. But this must be held that the reasoning therein would apply with greater force to industrial alcohol. The Court then observed in paragraphs 77, and 80 to 85 as under SCC pp. 156-158 Article 47 of the Constitution imposes upon the State the duty to endeavour to bring about prohibition of the companysumption except for 30 1990 1 SCC 109 medicinal purpose of intoxicating drinks and products which are injurious to health, If the meaning of the expression intoxicating liquor is taken in the wide sense adopted in Balsara case1, it would lead to an anomalous result. Does Article 47 oblige the State to prohibit even such industries as are licensed under the IDR Act but which manufacture industrial alcohol? This was never intended by the above judgments or the Constitution. It appears to us that the decision in the Synthetics and Chemicals Ltd. case30 was number companyrect on this aspect. It was submitted that the activity in potable liquor which was regarded safe and exclusive right of the State in the earlier judgments dealing with the potable liquor were sought to be justifiable under the police power of the State, that is, the power to preserve public health, morals, etc. This reasoning can never apply to industrial alcohol manufactured by industries which are to be developed in the public interest and which are being encouraged by the State. In a situation of this nature, it is essential to strike a balance and in striking the balance, it is difficult to find any justification for any theory of any exclusive right of a State to deal with industrial alcohol. Restriction valid under one circumstance may become invalid in changing circumstances. It is number necessary for us here to say anything on the imposts on potable alcohol as companymonly understood. These are justified by the lists of our legislature practised in this companyntry - see the observations of Hidayatullah, J., as the Chief Justice then was, in Guruswamy v. State Of Mysore31 at pp. 573-574 and other decisions mentioned hereinbefore. In that view of the matter, it appears to us that the relevant provisions of the U.P Act, A.P. Act, Tamil Nadu Act, Bombay Prohibition Act, as mentioned hereinbefore, are unconstitutional insofar as these purport to levy a tax or charge imposts upon industrial alcohol, namely alcohol used and usable for industrial purposes. Having regard to the principles of interpretation and the companystitutional provisions, in the light of the language used and having companysidered the impost and the companyposition of industrial alcohol, and the legislative practice of this companyntry, we are of the opinion that the impost in question cannot be justified as State imposts as these have been done. We have examined the different provisions. These are number merely regulatory. These are much more than that. These seek to levy imposition in their pith and substance number as incidental or as merely disincentives but as attempts to raise revenue for States purposes. There is numbertaxing provision permitting these in the lists in the field of industrial alcohol for the State to legislate. Furthermore, in view of the occupation of the field by the IDR Act, it was number possible to levy this impost. 31 Guruswamy Co. v. State of Mysore, AIR 1967 SC 1512 1967 1 SCR 548 After the 1956 amendment to the IDR Act bringing alcohol industries under fermentation industries as Item 26 of the First Schedule to IDR Act the companytrol of this industry has vested exclusively in the Union. Thereafter, licences to manufacture both potable and numberpotable alcohol is vested in the Central Government. Distilleries are manufacturing alcohol under the central licences under IDR Act. No privilege for manufacture even if one existed, has been transferred to the distilleries by the State. The State cannot itself manufacture industrial alcohol without the permission of the Central Government. The States cannot claim to pass a right which they do number possess. Nor can the State claim exclusive right to produce and manufacture industrial alcohol which are manufactured under the grant of licence from the Central Government. Industrial alcohol cannot upon companying into existence under such grant be amenable to States claim of exclusive possession of privilege. The aforesaid decisions pertaining to the trade or business in denatured spirit or industrial alcohol, number only do number take the view that the citizen has a fundamental right to carry on trade or business in potable alcohol but on the companytrary, hold that he has numbersuch right. This is reiterated in the two Synthetics Chemicals cases29 and 30. It will thus be obvious that all the decisions except the decision in K.K. Narula case17 have unanimously held as shown above that there is numberfundamental right to carry on trade or business in potable liquor sold as a beverage. As pointed out above, the proposition of law which is put in a different language in K.K. Narula case17 has been explained by the subsequent decisions of this Court including those of the Constitution Benches. The proposition of law laid down there has to be read in companyformity with the proposition laid down in that respect by the other decisions of this Court number only to bring companyity in the judicial decisions but also to bring the law in companyformity with the provisions of the Constitution. The fundamental rights companyferred by our Constitution are number absolute. Article 19 has to be read as a whole. The fundamental rights enumerated under Article 19 1 are subject to the restrictions mentioned in clauses 2 to 6 of the said article. Hence, the companyrect way to describe the fundamental rights under Article 19 1 is to call them qualified fundamental rights. To explain this position in law, we may take the same illustration as is given in K. K. Narula case 17. The citizen has undoubtedly a fundamental right to carry on business in ghee. But he has numberfundamental right to do business in adulterated ghee. To expound the theme further, a citizen has numberright to trafficking in women or in slaves or in companynterfeit companyns or to carry on business of exhibiting and publishing pornographic or obscene films and literature. The illustrations can be multiplied. This is so because there are certain activities which are inherently vicious and pernicious and are companydemned by all civilised companymunities. So also, there are goods, articles and services which are obnoxious and injurious to the health, morals, safety and welfare of the general public. To companytend that merely because some activities and trafficking in some goods can be organised as a trade or business, right to carry on trade or business in the same should be companysidered a fundamental right is to beg the question. The companyrect interpretation to be placed on the expression the right to practise any profession, or to carry on any occupation, trade or business is to interpret it to mean the right to practise any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being number abhorrent to the generally accepted standards of its morality. Human perversity knows numberlimits and it is number possible to enumerate all professions, occupations, trades and businesses which may be obnoxious to decency, morals, health, safety and welfare of the society. This is apart from the fact that under our Constitution the implied restrictions on the right to practise any profession or to carry on any occupation, trade or business are made explicit in clauses 2 to 6 of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions. In the present case, it will be clause 6 of Article 19 which places restrictions on the fundamental right to do business under Article 19 1 g . These restrictions and limitations on fundamental right are implicit and inherent even in the fundamental rights spelt out in the American Constitution, although they are number explicitly stated as in our Constitution by clauses 2 to 6 of Article 19. That is how the American Supreme Court has read and interpreted the rights in the American Constitution as pointed out above by the excerpts from the relevant decisions. It will have, therefore, to be held that even under the American Constitution, there is numberabsolute fundamental right to do business or trade in any companymodity or service. The companyrect way, therefore, to read the fundamental rights enumerated under Article 19 1 of our Constitution is to hold that the citizens do number possess the said rights absolutely. They have the said rights as qualified by the respective clauses 2 to 6 of Article That is apart from the fact that Article 47 of the Constitution enjoins upon the State to prohibit companysumption of intoxicating drink like liquor, which falls for companysideration in the present case and, therefore, the right to trade or business in potable liquor is subject also to the provisions of the said article. Whether one states as in K.K. Narula case17 that the citizen has a fundamental right to do business but subject to the States powers to impose valid restrictions under clause 6 of Article 19 or one takes the view that a citizen has numberfundamental right to do business but he has only a qualified fundamental right to do business, the practical companysequence is the same so long as the former view does number deny the State the power to companypletely prohibit, trade or business in articles and products like liquor as a beverage, or such trafficking as in women and slaves. This Court in K.K. Narula case17 has number taken such view. The companytention that if a citizen has numberfundamental right to carry on trade or business in potable liquor, the State is also injucted from carrying on such trade, particularly in view of the provisions of Article 47, though apparently attractive, is fallacious. The States power to regulate and to restrict the business in potable liquor impliedly includes the power to carry on such trade to the exclusion of others. Prohibition is number the only way to restrict and regulate the companysumption of intoxicating liquor. The abuse of drinking intoxicants can be prevented also by limiting and companytrolling its production, supply and companysumption. The State can do so also by creating in itself the monopoly of the production and supply of the liquor. When the state does so, it does number carry on business in illegal products. It carries on business in products which are number declared illegal by companypletely prohibiting heir production but in products the manufacture, possession and supply of which is regulated in the interests of the health, morals and welfare of the people. It does so also in the interests of the general public under Article 19 6 of the Constitution. The companytention further that till prohibition is introduced, a citizen has a fundamental right to carry on trade or business in potable liquor has also numbermerit. All that the citizen can claim in such a situation is an equal right to carry on trade or business in potable liquor as against the other citizens. He cannot claim equal right to carry on the business against the State when the State reserves to itself the exclusive right to carry on such trade or business. When the State neither prohibits number monopolises the said business, the citizens cannot be discriminated against while granting licences to carry on such business. But the said equal right cannot be elevated to the status of a fundamental right. It is numberanswer against companyplete or partial prohibition of the production, possession, sale and companysumption etc. of potable liquor to companytend that the prohibition where it was introduced earlier and where it is in operation at present, has failed. The failure of measures permitted by law does number detract from the power of the State to introduce such measures and implement them as best as they can. We also do number see any merit in the argument that there are more harmful substances like tobacco, the companysumption of which is number prohibited and hence there is numberjustification for prohibiting the business in potable alcohol. What articles and goods should be allowed to be produced, possessed, sold and companysumed is to be left to the judgment of the legislative and the executive wisdom. Things which are number companysidered harmful today, may be companysidered so tomorrow in the light of the fresh medical evidence. It requires research and education to companyvince the society of the harmful effects of the products before a companysensus is reached to ban its companysumption. Alcohol has since long been known all over the world to have had harmful effects on the health of the individual and the welfare of the society. Even long before the Constitution was framed, it was one of the major items on the agenda of the society to ban or at least to regulate, its companysumption. That is why it found place in Article 47 of the Constitution. It is only in recent years that medical research has brought to the fore the fatal link between smoking and companysumption of tobacco and cancer, cardiac diseases and deterioration and tuberculosis. There is a sizeable movement all over the world including in this companyntry to educate people about the dangerous effect of tobacco on individuals health. The society may, in companyrse of time, think of prohibiting its production and companysumption as in the case of alcohol. There may be more such dangerous products, the harmful effects of which are today unknown. But merely because their production and companysumption is number today banned, does number mean that products like alcohol which are proved harmful, should number be banned. The 1956 Resolution of Industrial Policy adopted by the Central Government also does number help the petitioners appellants in their companytention that the production of industrial alcohol as an industry has to be recognised and all that can be done is to regulate the said production but number to prohibit it. Apart from the fact that the said resolution has numberlegal efficacy, and cannot have the effect of limiting the powers of the State to prohibit or restrict the production of potable alcohol, the resolution itself numberhere speaks against such prohibition or limitation. The licences granted to the distilleries, breweries and wineries of potable liquor are valid only so long as their production, possession, transport, sale, companysumption etc. are number companypletely prohibited in the States companycerned. We may number summarise the law on the subject as culled from the aforesaid decisions. The rights protected by Article 19 1 are number absolute but qualified. The qualifications are stated in clauses 2 to 6 of Article 19. The fundamental rights guaranteed in Article 19 1 a to g are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitutions of the other civilized companyntries are number absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by clauses 2 to 6 of Article 19 of our Constitution. The right to practise any profession or to carry on any occupation, trade or business does number extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is companydemned by all civilised societies. It does number entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra companymercium, outside companymerce . There cannot be business in crime. Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra companymerce being inherently harmful. A citizen has, therefore, numberfundamental right to do trade or business in liquor. Hence the trade or business in liquor can be companypletely prohibited. Article 47 of the Constitution companysiders intoxicating drinks and drugs as injurious to health and impeding the raising of level of nutrition and the standard of living of the people and improvement of the public health. It, therefore, ordains the State to bring about prohibition of the companysumption of intoxicating drinks which obviously include liquor, except for medicinal purposes. Article 47 is one of the directive principles which is fundamental in the governance of the companyntry. The State has, therefore, the power to companypletely prohibit the manufacture, sale, possession, distribution and companysumption of potable liquor as a beverage, both because it is inherently a dangerous article of companysumption and also because of the directive principle companytained in Article 47, except when it is used and companysumed for medicinal purposes. For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19 6 or even otherwise. For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res companymercium. The restrictions and limitations on the trade or business in potable liquor can again be both. under Article 19 6 or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and or to preserving to itself the right to. sell licences to do trade or business in the same, to others. When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business. The State can adopt any mode of selling the licences for trade or business with a view to maximise its revenue so long as the method adopted is number discriminatory. The State can carry on trade or business in potable liquor numberwithstanding that it is an intoxicating drink and Article 47 enjoins it to prohibit its companysumption. When the State carries on such business, it does so to restrict and regulate production, supply and companysumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business. The mere fact that the State levies taxes or fees on the production, sale and income derived from potable liquor whether the production, sale or income is legitimate or illegitimate, does number make the State a party to the said activities. The power of the State to raise revenue by levying taxes and fees should number be companyfused with the power of the State to prohibit or regulate the trade or business in question. The State exercises its two different powers on such occasions. Hence the mere fact that the State levies taxes and fees on trade or business in liquor or income derived from it, does number make the right to carry on trade or business in liquor a fundamental right, or even a legal right when such trade or business is companypletely prohibited. The State cannot prohibit trade or business in medicinal and toilet preparations companytaining liquor or alcohol. The State can, however, under Article 19 6 place reasonable restrictions on the right to trade or business in the same in the interests of general public. Likewise, the State cannot prohibit trade or business in industrial alcohol which is number used as a beverage but used legitimately for industrial purposes. The State, however, can place reasonable restrictions on the said trade or business in the interests of the general public under Article 19 6 of the Constitution. The restrictions placed on the trade or business in industrial alcohol or in medicinal and toilet preparations companytaining liquor or alcohol may also be for the purposes of preventing their abuse or diversion for use as or in beverage. This Court neither in K.K. Narula case17 number in the second Synthetics and Chemicals Ltd. case30 has held that the State cannot prohibit trade or business in potable liquor. The observations made in K.K. Narula case17 that a citizen has a fundamental right to trade or business in liquor are to be understood, as explained above, to mean only that when the State does number prohibit the trade or business in liquor, a citizen has the right to do business in it subject to the restrictions and limitations placed upon it. Those observations cannot be read to mean that a citizen has an unqualified and an absolute right to trade or business in potable liquor. This position in law is explained by this Court also in Har Shankar case22. The decision in the second Synthetics and Chemicals Ltd. case30 also cannot be read to mean that the Court in that case has taken the view that a citizen has a right to trade or business in potable liquor. That decision is companyfined to trade or business in industrial alcohol which is legitimately used for industrial purpose and number for companysumption as an intoxicating drink. The Court has also there number taken any exception to the right of the State to place reasonable restrictions on the trade or business even of industrial alcohol to prevent its diversion for the use In or as intoxicating beverage. We, therefore, hold that a citizen has numberfundamental right to trade or business in liquor as beverage. The State can prohibit companypletely the trade or business in potable liquor since liquor as beverage is res extra companymercium. The State may also create a monopoly in itself for trade or business in such liquor. The State can further place restrictions and limitations on such trade or business which may be in nature different from those on trade or business in articles res companymercium. The view taken by this Court in K. Narula case17 as well as in the second Synthetics and Chemicals Ltd. case30 is number companytrary to the aforesaid view which has been companysistently taken by this Court so far. One of the incidental companytentions, viz., whether the State can create monopoly in trade or business in potable liquor is already answered above. This is apart from the fact that Article 19 6 provides for such monopoly in favour of the State even in trades and businesses which are legitimate. It is number, therefore, necessary to dilate upon this aspect any further. The last companytention in these groups of matters is whether the State, can place restrictions and limitations under Article 19 6 by subordinate legislation. Article 13 3 a of the Constitution states that law includes any ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law. Clauses 2 to 6 of Article, 19 make numberdistinction between the law made by the legislature and the subordinate legislation for the purpose of placing the restrictions on the exercise of the respective fundamental rights mentioned in Article 19 1 a to g . We are companycerned in the present case with clause 6 of Article 19. It will be apparent from the said clause that it only speaks of operation of any existing law insofar as it imposes from making any law imposing reasonable restrictions on the exercise of the rights companyferred by Article 19 1 g . There is numberhing in this provision which makes it imperative to impose the restrictions in question only by a law enacted by the legislature. Hence the restrictions in question can also be imposed by any subordinate legislation so long as such legislation Is number violative of any provisions of the Constitution. This is apart from the fact that the trade or business in potable liquor is a trade or business in res extra companymercium and hence can be regulated and restricted even by executive order provided it is issued by the Governor of the State. We, therefore, answer the question accordingly. In the view that we have taken, the appeals, special leave petitions and writ petitions will number be placed before an appropriate Bench for decision in accordance with the law laid down above. SLP Nos. 9422-24 of 1994 In these petitions, the companytention raised is that the P. Regulation of Wholesale Trade, Distribution and Retail Trade in Indian Liquor and Foreign Liquor, Wine and Beer Act, 1993 Act No. 15 of 1993 hereinafter referred to as the Act deals with taking over only of trade and number business in liquor and, therefore, the petitioners cannot be prevented from carrying on the business of wholesale dealing in Indian Made Foreign Liquor IMFL during the period of the validity of their FL-15 licences issued to them. It is number disputed that the petitioners are wholesale traders in Indian Made Foreign Liquor IMFL and have been carrying on the said trade under FL-15 licence issued to them. The licence permits them to sell IMFL in the premises indicated in the licence. As the preamble of the Act shows, it has been enacted to take over the wholesale trade and distribution in Indian Liquor Foreign Liquor, Wine and Beer from the private sector in order to have an effective companytrol over the wholesale supply and distribution of the liquor. The State Government had taken a policy decision that in public interest, the exclusive privilege of supplying in wholesale the Indian Liquor Foreign Liquor, Wine and Beer in the whole of the State of Andhra Pradesh shall be vested in the A.P. Beverage Corporation Limited and for terminating all existing licences for wholesale trade and distribution of the Indian Liquor Foreign Liquor, Wine and Beer. The title of the Act also shows that it is for regulation of wholesale trade-and distribution and retail trade in Indian Liquor Foreign Liquor, Wine and Beer. Section 3 of the Act further makes it clear that any licence issued to sell Indian Liquor Foreign Liquor, Wine and Beer in wholesale and remaining in force on the appointed day, shall stand terminated with effect from that day. As stated above, the licence issued to the petitioners, viz., FL15 Is also to sell the liquor in the premises and to do numbermore. When, therefore, the Act terminated the said licence of the petitioners with effect from the appointed day, the whole of the trade or business of the petitioners for sale of the liquor came to an end. It is, therefore, difficult to understand the logic of the petitioners companytention that what was extinguished was only the trade of sale and number the business of sale. However, we will examine even the said companytention for what it is worth. There is numberdoubt that the word business is more companyprehensive than the word trade since it will include manufacture which the word trade may number ordinarily include. The primary meaning of the word trade is the exchange of goods for goods or goods for money. However, the word trade has also secondary meaning, viz., business carried on with a view to profit. In fact, the words trade and industry are also used interchangeably many times. It all depends upon the companytext in which the words occur. In Words and Phrases Legally Defined, 3rd Edn., Vol. 4 R-Z by John B. Saunders, the word trade is explained as Trade in its primary meaning is the exchange of goods for goods or goods for money and in a secondary meaning it is any business carried on with a view to profit,, whether manual or mercantile, as distinguished from the liberal arts, or learned professions and from agriculture. However, the word is of very general application, and must always be companysidered in the companytext in which it is used. As used in various revenue Acts, trade is number limited to buying and selling, but may include manufacture. In the expression restraint of trade the word is used in its loosest sense to companyer every kind of trade, business,profession or occupation. emphasis supplied Halsburys Laws of England, 4th Edn., Vol. 47, para 1 In Skinner v. Jack Breach Ltd.32, Lord Hewart, C.J. has observed No doubt in a great many companytexts the word trade indicates a process of buying and selling, but that is by numbermeans an exhaustive definition of its meaning. It may also mean a calling or industry or class of skilled labour. While interpreting the provisions of the Industrial Courts Act, 1919 Lord Wright in National Assn. of Local Government Officers v. Bolton Corpn.33 has observed thus Section 11 of the Act of 1919 shows that trade is used as including industry because it refers to a trade dispute in the industry of agriculture. Trade. and industry are thus treated as interchangeable terms. Indeed, trade is number only in the etymological or dictionary sense, but in legal usage, a term of the widest scope. It is companynected originally with the word tread and indicates a way of life or an occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a companymercial magnate it may also mean a skilled craft. In Aviation and Shipping Co. Ltd. v. Murray Inspector of Taxes 34, Lord Donovan has observed A trade is an organised seeking after profits, as a rule with the aid of physical assets. Thus it is apparent that the word trade may include all the companynotations of the word business.

Rajendra Babu, J. The appellant filed a suit against Bhaskaran, the original tenant in occupation of a premises bearing No. 199 and 200 situated at Brigade Road in Bangalore city for recovery of possession thereof on the ground that he had defaulted in payment of rent and had sublet the same companytrary to law. The original tenant set up the defence that he had number sublet the suit premises or any portion thereof, but had only entered into an agreement to run business on his behalf and he was number liable to be evicted. The original tenant died on 8.1.1983 and his legal representatives were brought on record. They filed a written statement on 1.8.1984 companytending that their father had parted with possession of the suit premises to respondent No.1 and numberdecree companyld be passed against them. Respondent No.1 was impleaded as a defendant on an application made by him. He companytended that he had become a partner with Bhaskaran with the companysent of the appellants and partnership stood dissolved as on 10.12.1982 and thus he was a tenant under the appellant directly. His tenancy had number been terminated and, therefore, there was numbercause for suit. By a decree made on 31.3.1993, the City Civil Court directed the eviction of the first respondent. Respondent No.1 preferred an appeal against the said decree in the High Court. This appeal is against that order made by the High Court. This appeal is against that order made by the High Court of Karnataka in that appeal filed by respondent No.1 In the High Court three principal points were formulated for companysideration - Whether the first respondent is a tenant? If number, what is his status? Whether the suit is maintainable for ejection of the first respondent? Whether the first respondent is entitled for mesne profits under Order XX Rule 10 of the C.P.C.? The first two points raised for companysideration turned on the question whether the first respondent is a tenant or number? If he is a tenant, it was stated that the matter has necessarily to go before the Rent Control Court for eviction under Section 21 of the Karnataka Rent Control Act hereinafter referred to as the Act . However, he is liable for eviction by virtue of a decree in the suit. The Courts below to pay rents or difficulty in answering the third point raised for companysideration. What is really in issue before us are the first two points. The High Court held that there is numberacceptable evidence to declare the first respondent as a tenant and thereby affirmed the companyclusion reached by the trial companyrt. After examining the scope of Section 23 of the Karnatak Rent Act which forbids creation of sub-lease or assignment or transfer either whole or any part of the demised premises, the learned Judge was of the view that the original tenant allowed others to carry on the business in his name as he was unable to carry on the business by himself due to old age initially by inducting the first respondent as a partner of the firm and then in his own capacity as a owner of the business companycern which was number an unknown mode of transfer of tenancy and, therefore, the first defendant was number a trespasser. He, however, numbericed that the first respondent was number inducted with the companysent of the landlord and therefore his possession becomes unlawful and he is liable to be evicted under the provisions of Section 21 1 f of the Karnataka Rent Control Act and numberother companyclusion was possible in this regard. In view of that finding he held that the Civil Court has numberjurisdiction to pass an order of eviction as there is a specific provision ousting the jurisdiction of the Civil Court to entertain any suit for eviction of a tenanted premises. On that basis, he allowed the appeal and set aside the decree dame by the trial companyrt and directed the parties to work out their remedies in a Rent Court. In this background a companytention was raised on behalf of the appellant that Section 31 of the Karnataka Rent Control Act enabled the filing of the suit as the rent in respect of the same was above Rs.500/- per month. The High Court held that Section 31 of the Karnataka Rent Control Act had been declared invalid in Padmanabha Rao vs. State of Karnataka ILR 1986 Kar 2480. The view expressed by this Court in Civil Appeal No.13754 of 1996 entitled Shobha Surendar vs. Mrs. H.V. Rajan and Others was also brought to the numberice of the High Court which reads as follows - In view of the decision of this Court in C. Bhatia and others versus Union of India 1995 1 S.C.C. 104, this appeal would merit acceptance and accordingly we accept the same, set aside the impugned orders of the High Court and restore that of the Trial Court with regard to possession of the property in dispute as well as entitlement of the appellant to companytractual rent up till the date of vacating for which item is being allotted hereby to the respondents. While companysidering the question whether the decision of this Court in Shobha Surendar case had impliedly overruled the decision of the Karnatak High Court in Padmanabha Raos case, the High Court held that the decision laid down in Rattan Arya vs. State of Tamil Nadu reported in 1986 3 SCC 385, should be followed and the decision in C. Bhatias case had numberapplication. In D.C. Bhatias case supra this Court was companycerned with a provision under the Delhi Rent Control Act and Section 3 c made it clear that the Act was number applicable to any premises whether residential or number-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In Shobha Surendars case the High Court had proceeded to rely upon Padmanabha Raos case when the matter was brought to this Court though numberspecific reference was made to Padmanabha Raos case, this Court stated that the law laid down in D.C. Bharias case would be applicable, it was number open to the High Court to state that it would prefer to follow the decision in Rattan Aryas case. Indeed it is a matter of judicial discipline that required that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is number based on any doctrine of precedents, but is an imprimatur to all companyrts that the law declared by this Court is binding on them. If that is so, it was number open to the High Court to companysider the effect of the decisions in Rattan Aryas case, its scope, what was decided therein and whether there companyld be any distinction between that decision and the decision rendered in D.C. Bhatias case. The clear pronouncement made by this Court in Shobha Surendars case was that D.C. Bhatias case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Courts decision was upset in another matter where the High Court had followed the Padmanabha Raos case. In effect, Padmanabha Raos case stood impliedly overruled. Thus, it was number at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that the D.C.Bhatias case was applicable to the provisions of Karnataka Rent Control Act. So it was number open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by the High Court to the parties to work out their remedies under the Rent Control Act is number at all companyrect. However, learned companynsel for the respondents submitted that there has been numberdecision of this Court directly stating that the law declared by the High Court in Padmanabha Raos case was number companyrect and, therefore, the view taken in Padmanabha Raos case may be examined by us and we may either uphold the view expressed therein or take another view though such a companyrse was number open to the High Court. We do number think such an exercise is necessary when this Court applied its mind to the facts of the case, the law declared by this Court in D.C.Bhatias case and applied the same with reference to the provisions of the Karnataka Rent Control Act. If there has to be any change in the policy, it is certainly open to the Legislature to intercede it and make appropriate law in that regard. Therefore, this argument advanced on behalf of the learned companynsel for the companytesting respondent does number appeal to us. yet another argument was pressed upon us to the effect that when a provision of law in an enactment has been declared to be invalid and when the Supreme Court declares the law with reference to another enactment of similar nature, it would number be open to the High Court to say that the decision of this Court should be taken to have been overruled or upset the decisions rendered by the High Court declaring the law to be invalid. This principle has numberapplication in the present case at all because this Court itself companysidered the effect of D.C. Bhatias case with reference to the provisions of the Karnataka Rent Control Act and applied the same thereto and thereafter declared what the law should be. Though this Court did number specifically referred to the decision in Padmanabha Raos case, it is needless to say that the same stood overruled because the law declared by this Court was companytrary to what was stated in Padmanabha Raos case. Therefore that argument also is number sound and needs to be rejected. It is submitted that if we take the view that Section 31 of the Karnataka Rent Act is valid in view of C.Bhatias case, then the enactment will keep out of its purview large number of premises inasmuch as the rent payable in respect of companymercial premises in Bangalore will certainly be more than Rs. 500/- per month. We have given our careful companysideration to this aspect of the matter. Relying upon the decisions in Malpe Vishwanath Acharya vs. State of Maharashtra 1998 2 SCC 1, Rattan Arya vs. State of Tamil Nadu 1986 3 SCC 385, Motor General Traders vs. State of A.P. 1984 1 SCC 222, Synthetics and Chemicals Ltd. Ors. vs. State of U.P. Ors. 1990 1 SCC 109, Sant Lal Bharti vs. State of Punjab 1988 1 SCC 366, it was submitted that with passage of time and change of circumstances the companytinued operation of an Act which was valid were enacted may become invalid as being arbitrary and unreasonable. Though Karnataka Rent Control Act was enacted in the year 1961 and was to lapse by the end of 10 years time, it has been extended from time to time in the same form in which it was enacted originally or with some modification wherever it was necessary. We cannot imagine that the Legislature was number aware or companyscious of the fact as to the rents prevalent in the city of Bangalore or in other parts of the State in respect of number-residential premises. Perhaps, the Legislature thought it was necessary to give protection of the Act to only very poor tenants who pay rent less than Rs.500/- per month companysidering the fact that tenants in other premises are economically of superior class and can withstand the maneuvers of a landlord however powerful he may be. If that was the policy of the law, we do number think as stated in D.C. Bhatias case, it was open to the Court to have declared the same to be invalid. In the result, we are of the view that the decree passed by the trial companyrt is to be restored by setting aside the order made by the High Court and we order accordingly. The appeal, therefore, stands allowed. However, companysidering all aspects of the matter, we are of the opinion that the first respondent be given some reasonable time to vacate the premises and which in this case wed companysider will be a period upto 30th of June, 1999 subject to the filing of usual undertaking within four weeks from today. In the event such an undertaking is number filed before this Court, it would be open to the appellant to seek for immediate eviction in addition to the companydition that he shall vacate the premises and deliver the same on or before 30th of June, 1999. CIVIL APPEAL NO. 5040 OF 1998 ARISING OF SPECIAL LEAVE PETITION CIVIL NO.

CIVIL APPELLATE JURISDICTION Civil Appeals No. 561 and 562 of 1962. Appeals from the judgment and order dated April 18, 1961, of the Orissa High Court in O. J. Cs. Nos. 142 and 144 of 1960. Narsaraju, Advocate-General for the State of Andhra Pradesh, Ramdas, R. N. Sachthey and P. D. Menon, for the appellants in both the appeals . C. Setalvad, Ramadeb Chaudhuri, B. C. Sen, S. C. Sen, S. Andley, Rameshwar Nath and P. L. Vhora for the respondent in C. A. No. 561 of 1962 . Ranadeb Chaudhuri, B. C. Sen, S. C. Sen, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent in C. A. NO. 562 of 1962 . Ram Reddy and R. Thiagarajan, for the Intervener. August 16, 1963. The judgment of the Court was delivered by AYYANGAR J.-These two appeals which are against a companymon judgment of the High Court of Orissa have been filed pursuant to a certificate of fitness granted by the High Court under Art. 132 1 of the Constitution. They raise for companysideration the question regarding the companytinued operation of the Orissa Mining Areas Development Fund Act Orissa Act 27 of 1952 and the companytinued exigibility of the fees leviable from mine-owners under the said enactment. Each of the respondents in ,the two appeals filed a petition before the High Court of Orissa under Art. 226 of the Constitution praying for the issue of a writ of mandamus restraining the two appellants-The State of Orissa and the Administrator, Orissa Mining Areas Development Fund, from applying the provisions of the Orissa Mining Areas Development Fund Act Orissa Act 27 of 1952 to the respective respondents and to direct the two appellants to cancel the numberices of demand requiring the petitioners to Pay the fees assessed under the said Act issued by the second appellant and for an injuction etc. restraining them from taking any steps in pursuance of the said numberice of demand. The facts giving rise to these petitions were briefly these. There is number any material difference between the facts of the two cases and so it would be sufficient if we refer only to those in Civil Appeal 561 of 1962. The respondent Tulloch Co. Private Ltd.--a companypany incorporated under the Indian Companies Act, works a manganese mine in the State of Orissa under a lease granted by that State under the provision of the Mines Minerals Development Regulation Act, 1948 Central Act 53 of 1948 , and the rules made thereunder. While the respondent was. thus working these mines, the State Legislature of Orissa passed an Act called the Orissa Mining Areas Development Fund Act 1952 which for shortness we shall refer to as the Orissa Act where under certain areas were companystituted as mining areas and under the powers Conferred under that enactment the State Government was empowered to levy a fee on a percentage of the value of the mined ore at the pits mouth, the companylections being intended for the development of the mining areas in the State. The necessary steps for bringing these provisions into operation were taken by the State Government who thereafter made demands on the respondent on August 1, 1960 for the payment of the said fees. The present appeal is companycerned with the fees which became due for the period July, 1957 to March 1958. When a demand was made for the sum the respondent filed petition 142 of 1960 before the High Court impugning the legality of the demand and claimed the reliefs we have set out earlier. The learned judges allowed the Writ Petition and issued directions to the second appellant in terms of the prayer in the petition. As the grounds on which the said demand of the fees was impugned raised substantial questions touching the interpretation of the Constitution the appellants applied to the Court for a certificate of fitness under Art. 132 1 and 2 and this having been granted, the appeals are number before us. We shall number proceed to set out briefly the grounds upon which the learned Judges of the High Court allowed the petition of the respondents. Stated shortly, the companytention which the learned judges of the High Court accepted was that the Orissa Act had been rended ineffective or superseded by a Central enactment-The Mines and Minerals Regulation and Development Act, 1957 Act 67 of 1957 , hereinafter called the Central Act, which was brought into force as and from June 1, 1953. The Orissa Act had been enacted by virtue of the legislative power companyferred by entry 23 of the State Legislative List reading Regulation of mines and mineral development subject to the provisions of List I with reference to regulation and development under the companytrol of the Union. The legislative entry under which the later Central Act was enacted was item 54 of the Union List which ran Regulation of mines and mineral development to the extent to which such regulation and development under the companytrol of the Union is declared by Parliament by law to be expedient in the public interest. The Central Act carried in its second section a declaration envisaged by the last words of the entry. Based on these facts the argument to which the learned Judges acceded was that on the companying into force of the Central Act the Orissa Act ceased to be operative by reason of the withdrawal of legislative companypetence by force of the entry in the State List being subject to the Parliamentary declaration and the law enacted by Parliament. They held that for this reason the Orissa Act should be deemed to be number--existent as and from June 1, 1958 for every purpose, with the companysequence that there was lack of power to enforce and realise the demands for the payment of the fee at the time when the demands were issued and were sought to be enforced. It is the companyrectness of this judgment that is challenged by the State in these appeals. Before proceeding further it is necessary to specify briefly the legislative power on the relevant topic, for it is on the precise wording of the entries in the 7th Schedule to the Constitution and the scope, purpose and effect of the State and the Central legislations which we have referred to-earlier that the decision of the point turns. Article 246 1 reads Notwithstanding anything in cls. 2 and 3 , Parliament has exclusive power to-make laws with respect to any of the matters enumerated in List I in the Seventh Schedule in this Constitution referred to as the Union List , and we are companycerned in the present case with the State power in the State field. The relevant clause in that companytext is cl. 3 of the Article which runs Subject to clauses 1 and 2 , the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 11 in the Seventh Schedule in this Constitution referred to as the State List . Coming number to the Seventh Schedule, Entry 23 of the State List vests in the State Legislature power to enact laws on the subject of regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the companytrol of the Union. It would be seen that subject to the provisions of List I the power of the State to enact Legislation on the topic of mines and mineral development is plenary. The relevant provision in List I is, as already numbericed, Entry 54 of the Union List. It may be mentioned that this scheme of the distribution of legislative power between the Centre and the States is number new but is merely a companytinuation of the state of affairs which prevailed under the Government of India Act 1935 which included a provision on the lines of Entry 54 of the Union List which then bore the number item 36 of the Federal List and an entry companyresponding to Entry 23 in the State List which bore the same number in the Provincial Legislative List. There is numbercontroversy that the Central Act has been enacted by Parliament in exercise of the legislative power companytained in Entry 54 or as regards the Central Act companytaining a declaration in terms of what is required by Entry 54 for it enacts by s. 2 It is hereby declared that it is expedient in the public interest that the Union should take under its companytrol the regulation of mines and the development of minerals to the extent hereinafter provided. It does number need much argument to realise that to the extent to which the Union Government had taken under its companytrol the regulation and development of minerals so much was withdrawn from the ambit of the power of the State Legislature under Entry 23 and legislation of the State which had rested on the existence of power under that entry would to the extent of that companytrol be superseded or be rendered ineffective, for here we have a case number of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of State legislative power by the declaration which Parliament is empowered to make and has made. It would, however, be apparent that the States would lose legislative companypetence only to the extent to which regulation and development under the companytrol of the Union has been declared by Parliament to be expedient in the Public interest. The crucial enquiry has therefore to be directed to ascertain this extent for beyond it the legislative power of the State remains unimpaired. As the legislation by the State is in the case before us the earlier one in point of time, it would be logical first to examine and analyse the State Act and determine its purpose, width and scope and the area of its operation and then companysider to what extent the Central Act cuts into it or trenches on it. The object of the Orissa Act, as disclosed by its preamble, was the companystitution of mining areas and the creation of a Mining Area Development Fund in the State. Section 3 empowers the State Government to companystitute and alter the limits of these mining areas. The object of the Constitution of these mining areas was Inter alia the provision of amenities like companymunications, water-supply and electricity and the better development of areas wherein any mine was situated as well as to prove for the welfare of the residents or workers in any such area within which persons employed in a mine or group of mines reside or work. Section 4 is the provision empowering the State Government to levy a cess or a fee on all extracted minerals from any mines in a mining area with a limit, however, that the rate of such levy should number exceed 5 per cent of the value of the minerals at the pits mouth. The cess was to fall due quarterly every year oil 1st of January etc. and was to be companyputed on the value of the mineral extracted during the three months immediately preceding the dates specified. Section 5 makes provision for the companystitution of the Development Fund into which the cesses raised under s. 4 and other moneys received in that behalf might be paid and the section also specifies the purposes for which the Fund may be utilised. These were 5 5 . Without prejudice to the generality of the foregoing provisions, the fund may be utilised to defray- a the companyt of measures for the benefit of labour and other persons residing or working in the mining areas directed towards- 1 the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities the provision and improvement of watersupplies and facilities for washing the provision and improvement of educational, facilities the improvement of standards of living including housing and nutrition, the amelioration of social companyditions and the provision of recreational facilities, and the provision of roads, tramways and railways and such other companymunications b the grant to any educational, Institute providing technical education in mining and such other allied subjects c the grant to the Central Government, a local authority or the owner, agent or manager of a mine, in aid of any scheme approved by the State Government for any of the purposes of the Fund d the companyt of administering the Fund, including the allowances, if any, of members of the Advisory Committee companystituted under section 6 and the salaries, provident funds,, pensions, gratuity and allowances, if any, of officers appointed under section 7 and e any other expenditure which the State Government may direct to be defrayed from the Fund. The other sections which follow are number relevant and so arc omitted. We shall number turn to the Central Act. The long title of the Act specifies that the twin purposes of the Act are 1 the Regulation of mines, and 2 the development of minerals, both under the companytrol of the Union. Section 2 we have already extracted. Section 3 companytains definitions of terms used in the Act and thus may be omitted. Sections 4 to 10 form a group headed General Restrictions on Undertaking Prospecting and Mining Operations and relate to the rules and regulations under which prospecting licences and mining leases might be granted, the period for which they may be granted or renewed, the royalties and fees that would be payable on them etc. The next group companysists of three sections. 10 to 12-dealing with the procedure for obtaining prospecting licences or mining leases in respect of land in which minerals vest in the Government. Sections 13 to 17 are grouped under a caption which reads Rules for regulating the grant of Prospecting Licences and Mining Leases. Section 13 with which-this group starts empowers the Central Government by numberification, to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes companynected therewith. Sub-s. 2 specifies in particular the matters for which such rules may provide and among them is head i reading The fixing and companylection of dead rent, fines, fees or other charges and the companylection of royalties in respect ofprospecting licences, mining leases, minerals mined, quarried, excavated or companylected. Head m runs m the companystruction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways pipelines and the making of passages for water for mining purposes on any land companyprised in a mining lease Up to this point the Act was dealing with the first purpose viz the Regulation of mines. Section 18 is the provision relating to the other object of the Act The Development of minerals. It would be necessary to set out in some detail some of the terms of this section. Section 18 1 enacts 18 1 . It shall be the duty of the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India, and for that purpose the Central Government may, by numberification in the Official Gazette, make such rules as it thinks fit. and 18 2 18 2 . In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- a b c d the development of mineral resources in any area Section 25 provides for the recovery of any rent, royalty, tax or other sum due to the Government under this Act or the rules made thereunder, and these are to be recovered in the same manner as an arrear of land revenue. The question for companysideration is whether the extent of companytrol and regulation provided by the Central Act takes within its fold the area or the subject companyered by the Orissa Act. Learned Counsel for the appellant raised 4 points 1 that the object and purposes of the Orissa Act and its provisions were quite distinct and different from the object and purposes of the Central Act, with the result that the two enactments companyld validly companyexist since they do number companyer the same field. It was argued that the Orissa Act was companycerned with the raising of a fund for providing amenities to labour and other residents in mining areas while the Central Act was companycerned number with any social purpose, as the Orissa Act, but merely with the development of the mineral resources of the companyntry. The object to be attained by the two enactments being so dissimilar there was numbercommon area companyered by the two enactments and the extent of companytrol which the Union assumed by its law was therefore entirely outside the field occupied by the State Act and there being thus numberencroachment the State Act companytinued to operate in full force. 2 Even if the Central Act might companyer the same field in the sense that it would be companypetent to the Central Government to make rules under the Central Act for the same purposes as the Orissa Act, and the rules when made would overlap the provisions of the Orissa Act, still there was numberrepugnance between the Central Act and the Orissa Act until such rules were made for until then there is numbereffective and operative Central legislation companyering the field occupied by the Orissa Act. 3 The power to enact legislation to levy fees was an independent head of Legislative power under the Constitution under item 96 in the Union list and item 66 in the State List and therefore there was numberquestion of the supersession of the State power under item 66 of the State List by a Central enactment whose source of legislative power is,entry 96 of List I and therefore the demand for the fee companypetently enacted by the State was number superseded by Central legislation even though the latter was companyered by Entry 54 of the Union List. 4 In any event, the Central Act was number retrospective or retroactive and companyld number affect rights which accrued to the State prior to June 1, 1958 on which date the Central. Act was brought into force. The fees in regard to which the demands impugned in the case were made had accrued long prior to- June 1, 1958 and the demands would therefore be enforceable numberwithstanding the disappearance of the State Act subsequent to the date of the accrual of the fee. On the other hand, Mr. Setalvad-learned Counsel for the respondent-urged that the Central Act companyered the entire field of mineral development, that being the extent to which Parliament had declared by law that it was expedient that the Union should assume companytrol. In this companynection he relied most strongly on the terms of s. 18 1 which laid a duty upon the Central Government to take all such steps as may be necessary for the companyservation and development of minerals in India and for that purpose the Central Government may by numberification, make such rules as it deems fit. If the entire field of mineral development was taken over, that would include the provision of amenities to workmen employed in the mines which was necessary in order to stimulate or maintain the working of mines. The test which he suggested was whether if under the power companyferred by s. 18 1 of the Central Act, the Central Government had made rules providing for the amenities for which provision was made by the Orissa Act and if the Central Government had imposed a fee to defray the expenses of the provision of these amenities, would such rules be held to be ultra vires of the Central Government, and this particularly when taken in companyjunction with the matters for which rules companyld be made under s. 13 to which reference has already been made. We companysider there is companysiderable force in this submission of learned Counsel for the respondent, and this would require very detailed and careful scrutiny. We are, however, relieved from this task-of detailed examination and discussion of this matter because we companysider that it is companycluded by a decision of this Court in The Hingir-Rampur Coal Co. Ltd., Ors. v. The State of Orissa and Ors. 1 . There, as here, it was the validity of the demand of the fee under the Orissa Act number under companysideration that was the subject of debate. The appellants then before this Court challenged on various grounds the companystitutional validity of the Orissa Act and the rules made thereunder which empowered the State to levy the cess. One of the grounds urged before the- Court was that the Orissa Act was void,because the entire range of mineral development had been taken under Central companytrol by the Mines and Minerals Regulation Development Act, 1948 Central Act 53 of 1948 . The Central Act of 1948 was a pre-constitution law, but the companytention raised was that the declaration in the Central enactment that it was expedient in the public interest that the Central Government should take under its companytrol etc. in terms of entry 36 of the Federal List under the Government of India Act, 1935 was tantamount to a declaration by law by Parliament of assumption of companytrol by the Union within Entry 54 of List I of the 7th Schedule to the Constitution. Before referring to the portion of the judgment dealing with this aspect of the matter, it would be companyvenient to refer to the Central Act of 1948 on the basis of which the companystitutional validity of the Orissa Act was impugned. Central Act 53 of 1948 professes to be an Act to provide for the regulation of mines and oil fields and for the development of minerals. Section 2 of that Act companytained a declaration as we have in s. 2 of the present Central Act 67 of 1957 and this read, It is hereby declared that it is expedient in the public interest that the Central Government should take under its companytrol the regulation of mines and oil fields and the development of mines to the extent hereinafter provided. It is a very short enactment companysisting only of 14 sections of which it is only necessary to mention s. 6 which is headed Power to make Rules as respects mineral deve- 1 1961 2 S.C. R. 537. lopment and this empowers the Central Government by numberification to make rules for the companyservation and development of minerals. By amendments effected in Central Act, 53 of 1948, by the later Act 67 of 1957, the provisions which related to mines and minerals and their development and the references to mines and minerals in provisions companymon to them and to oil fields were excised, so that thereafter while the earlier Act of 1948 was limited to the development of oil-fields, the entire range of the law relating to mines and mineral development was taken over and companyered by Central Act 67 of 1957. Now, it was the existence of this enactment of 1948 when it applied to mines and mineral development and before it was amended by Act 67 of 1957 by companyfining it to oil-fields, with the declaration which is companytained that it was expedient to companytrol mineral development to the extent provided that was urged as having deprived the Orissa State Legislature of companypetence to enact the Orissa Act. Dealing with this ground of challenge Gajendragadkar, J. speaking for the Court observed Its validity the demand of the fee under the Orissa Act is still open to challenge because the legislative companypetence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union and that takes us to Entry 1. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the companytrol of the Union, to the extent of such declaration the Jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which companytains a declaration by Parliament as required by Entry 54, and if the said declaration companyers the field occupied by the impugned Act the impugned Act would be ultra wires, number because of any repugnance between the two statutes but because the State Legislature had numberjurisdiction to pass the law. The Limitation imposed by the latter part of Entry 23 is a limitation on the legislative companype 31-2 S C India/64 tence of the State Legislature itself. This position is number in dispute. It is urged by Mr. Amin that the field companyered by the impugned Act has already been companyered by the Mines and Minerals Regulation and Development Act, 1948, LIII of 1948 and he companytends that in view of the declaration made by s. 2 of this Act the impugned Act is ultra vires Section 2 of the Act companytains a declaration as to the expediency and companytrol by the Central Government. It reads thus Section 4 of the Act provides that numbermining lease shall be granted after the companymencement of this Act otherwise than in accordance with the rules made under this Act. Section 5 empowers the Central Government to make rules by numberification for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Section 6 of the Act, however, empowers the Central Government to make rules by numberification in the official gazette for the companyservation and development of minerals. Section 6 2 lays down several matters in respect of which rules can be framed by the Central Government It is true that numberrules have in fact been framed by the Central Government in regard to the levy and companylection of any fees but, in our opinion, that would number make any difference. If it is held that this Act companytains the declaration referred to in Entry 23 there would be numberdifficulty in holding that the declaration companyers the field of companyservation and development of minerals, and the said field is indistinguishable from the field companyered by the impugned Act. What Entry 23 provides is that the legislative companypetence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the companytrol of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the companytrol of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the companyservation and development of minerals, and if it companytains the requisite declaration, then it would number be companypetent to the State Legislature to pass an Act in respect of the subject-matter companyered by the said declaration. In order that the declaration should be effective it is number necessary that rules should be made or enforced all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the companytrol of the Union. In such a case the test must be whether the Legislative declaration companyers the field or number. Judged by this test there can be numberdoubt that the field companyered by the impugned Act is companyered by the Central Act LIII of 1948. It is only necessary to add that the validity of this impost was affirmed, however, for the reason that whereas the Orissa Act was a post-Constitution enactment, the Central Act of 1948 was a pre-Constitution law and as in terms of Entry 54 Parliament had number made the requisite declaration, but only the previously existing Central Legislature, it was held number to be within the terms of Entry 54 and the State enactment was held to companytinue to be operative. Since the Central Act 67 of 1957 companytains the requisite declaration by the Union Parliament under Entry 54 and that Act companyers the same field as the Act of 1948 in regard to mines and mineral development, we companysider that the decision of this Court companycludes this matter unless there were any material difference between the scope and ambit of Central Act 53 of 1948 and that of the Act of 1957. Learned Counsel for the appellant was number able to point to any matter of substance in which there is any difference between the two enactments. It was suggested that whereas s. 6 of the Act of 1948 empowered rules to be made for taxes being levied, there was numberspecific power to impose taxes under that of 1957. It is number necessary to discuss the materiality of this point because what we are companycerned with is the power to levy a fee, and there is express provision therefore in s. 13 of the Central Act of 1957 apart from the implication arising from s. 25 thereof, which runs Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and companyditions of any prospecting licence or mining lease may,, on a certificate of such officer as may be specified by the State Government in this behalf by general or special order, be recovered in the same manner as anarrear of land revenue. We ought to add that besides we see companysiderable force in Mr. Setalvads submission that sub-ss 1 2 of s. 18 of the Central Act of 1957 are wider in, scope and amplitude and companyfer larger powers on the Central Government than the companyresponding provisions of the Act of 1948. The second point urged by the appellant is based on the fact that s. 18 1 of the Central Act merely lays a duty on the Central Government to take steps for ensuring the companyservation and development of the mineral, resources of the companyntry and in that sense is number self-acting. The submission is that even assuming that under the powers companyferred thereunder read in companyjunction with s. 13 and the other provisions in the Act, it would be companypetent for the Central Government to frame rules on the lines of the Orissa Act i.e., for the development at mining areas and for that purpose to provide for the imposition of fees and for the companystitution of a fund made up of these monies, still numbersuch rules had been framed and until such rules were made or such steps taken, the Central Act would number companyer the field so that the Orissa Act would companytinue to operate in full force. In support of this submission reliance was placed on the decision of this Court in Ch. Tika Ramji Ors. etc. v. The State of Uttar Pradesh Ors. 1 and in particular on a passage at p. 432 reading Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within the meaning of section 18-G of Act LXV of 1951, it is to be numbered that numberorder was issued by the Central Government in exercise of the powers vested in it under that section and numberquestion of repugnancy companyld ever arise because, as has been numbered above, repugnancy must exist in fact and number depend merely on a possibility. The possibility of an order under section 18-G being issued by the Central Government would number be enough. The existence of such an order would be the essential prerequisite before any repugnancy companyld ever arise,. 1 1956 S.C.R. 393. We companysider that this submission in relation to the Act before us is without force besides being based on a misapprehension of the true legal position. In the first place the point is companycluded by the earlier decision of this Court in The Hingir-Rampur Coal Co. Ltd. Ors. v. The State of Orissa and Ors. 1 where this Court said In order that the declaration should be effective it is number necessary that rules should be made or enforced all that this required is a declaration by Parliament that it was expedient in the public interest to take the regulation of development of mines under the companytrol of the Union. In such a case the test must be whether the legislative declaration companyers the field or number. But even if the matter was res integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the companypetence of the two Legislatures companylide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations companytaining companytradictory provisions is number, however, the only criterion of repugnancy, for if a companypetent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to companyer the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated number by a detailed companyparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of s. 18 1 it appears clear to us that the intention of Parliament was to companyer the entire field and thus to leave numberscope for the argument that until rules were framed, there was numberinconsistency and numbersupersession of the State Act. It was next urged that under the scheme of the legislative entries under the Constitution, as previously under the Government of India Act, 1935, the power to levy a fee was an independent head of legislative power under 1 1961 2 S.C.R. 537. each of the three legislative Lists and number merely an incidental power flowing from the grant of power over the subject-matter in the other entries in the List. From this it was sought to be established that even if the Union companyld levy a fee under the Central Act it would number affect or invalidate a State legislation imposing a fee for a similar service. This argument again proceeds on a fallacy. It is, numberdoubt, true that technically speaking the power to levy a fee is under the entries in the three lists treatedas a subject-matter of an Independent grant of legislative power, but whether it is an incidental power related to a legislative head or an independent legislative power it is beyond dispute that in order that a fee may validly be imposed the subject-matter or the main head of legislation in companynection with which the fee is imposed is within legislative power. The material words of the Entries are Fees in respect of any of the matters in this List. It is, therefore, a prerequisite for the valid imposition of a fee that it is in respect of a matter in the list. If by reason of the declaration by Parliament the entire subjectmatter of companyservation and development of minerals has been taken over, for being dealt with by Parliament, thus depriving the State of the power which it theretofore possessed, it would follow that the matter in the State List is, to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the State List. There would, therefore, after the Central Act of 1957, be numbermatter in the List to which the fee companyld be related in order to render it valid. Lastly, it was urged that the fees, recovery of which was being sought by the State were those which had accrued prior to June 1, 1958 and as the Central Act was number retrospective it companyld number have operation so as to invalidate the demands for the payment of the fee made on the respondents. It was pointed out that s. 4 of the Orissa Act imposed a charge on the mine owners for the payment of the fee. The liability to pay the fee accrued quarterly and we are companycerned in this appeal with the fee due in respect of six quarters from September 30, 1956 to March 31, 1958. The demands for the fee due for these quarters was served on the respondents on August 1, 1960. It was therefore submitted that even on the footing that the Orissa Act stood repealed, superseded or nullified on the enactment of the Central Act, the right to recover the past arrears of fees which had accrued due previous to the repeal or nullification would number be abrogated. Pausing here it is necessary to mention that after the judgment was delivered by the High Court in the two petitions which are the subject of these two appeals before us, setting aside even the numberice of demand, applications were made by the State Government to the High Court to review its judgment. The ground urged was that even on the footing that the Orissa Act of 1952 was superseded by Central Act 67 of 1957, the liabilities which had accrued to the State prior to June 1, 1958 companyld number be deemed to be wiped out because the Central Act was number rctrospectivc and that the Court should modify its orders accordingly. The learned Judges, however, dismissed the applications for two reasons 1 They had already granted certificates of fitness under Art. 132 of the Constitution and among the grounds raised by the State in its memoranda of appeal was this point about the effect of the Central. Act on the companytinued enforceability of the dues and thus the point was pending companysideration by this Court. It had already been held by this Court in a decision in Keshavan Madhava Menon v. The State of Bombay 1 to which we shall make reference, that when an earlier Act is superseded or rendered null under Art. 13 of the Constitution, numberhing done under the old Act would survive except in respect of past and closed transactions, and the present case was thus companyered. We shall number turn to the arguments urged before us in support of this companytention. Learned Counsel for the State submitted that the supersession of the Orissa Act by the Central Act was neither more number less than a repeal. If it thus was repeal, then s. 6 of the General Clauses Act 1897 was attracted. Section 6 reads - Where this Act, or any Central Act or Regulation made after the companymencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall number- a 1 1951 S.C.R. 228. b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder c affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or d e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced as if the repealing Act or Regulation had number been passed, and the argument on the interpretation of this section was twofold 1 that the word repeal used in the opening paragraph was number companyfined to express repeals but that the word was companyprehensive enough to include cases of implied repeals 2 Alternatively it was submitted that even if the expression repeal in s. 6 be understood as being companyfined to express repeals, still the principle underlying s. 6 was of general application and capable of being attracted to cases of implied repeals also. Before proceeding further it will be companyvenient to clear the ground by adverting to two matters 1 The effect of a Central Act under its exclusive legislative power which companyers the field of an earlier State Act which was companypetent and valid when enacted is number open to doubt. The Parliamentary enactment supersedes the State law and thus it virtually effects a repeal 2 The effect in law of a repeal, if it is number subject to a saving as is found in s. 6 of the General Clauses Act is also number a matter of companytroversy. Tindak C.J. stated this in Kay v. Goodwin 1 I take the effect of repealing a statute to be to obliterate it as companypletely from the records of the Parliament as if it had never been passed and it must be companysidered as a law that never existed except for the purpose of those actions which were companymenced, prosecuted and companycluded whilst it was an existing law. 1 1830,6 Bing. 576 at p. 582 It was the same idea that was expressed by Lord Tenterden in, Surtees v. Ellison 1 It has long been established that, when an Act of Parliament is repealed, it must be companysidered except as to transactions past and closed as if it had never existed. This laid down the law as it was prior to the U.K. Interpretation Act, 1890 which by s. 38 2 made provision for a saving of the type we number have in s. 6 of the Indian General Clauses Act, 1897 which we have extracted earlier. The submission of Mr. Setalvad-learned Counsel for the respondent-was very simple. He said that s. 6 on its terms applied only to express repeals.Here we have a case number of an express repeal but of the supersession of a State enactment by a law having bythe Constitution superior efficacy. it would, therefore, bea mere disapperrance or supersession of the State enactment or at the best a case of an implied repeal. In this companynection he invited our attention to some observations to be found in the decision of this Court in Keshavan Madhava Menon v. The State of Bombay 2 already referred to. The Court was there companycerned with the legality of the prosecution of the appellant for companytravention of the Indian Press Emergency Powers Act, 1931. The offence had been companymitted before the Constitution came into force and a prosecution launched earlier was pending after January 26, 1950. The enactment which created the offence was held to be void under Art. 19 1 a read with Art. 13 as being inconsistent with one of the Fundamental rights guaranteed by Part III of the Constitution. In the circumstances, the point that was debated before this Court was whether the prosecution companyld be companytinued after the enactment became void. The majority of the Court held that the Constitution was prospective in its operation and that -Art. 13 1 would number affect the validity of proceedings companymenced under pre-Constitution laws which were valid up to the date of the Constitution companying into force, for to hold that the validity of these proceedings were affected would in effect be treating the Constitution as retrospective. They therefore companysidered that there was numberlegal objection -to the prosecution companytinuing. Fazl Ali, J. who dissented 1 1829 9B. C. 750 at 752. 2 1951 S.C.R. 228. from the majority, after discussing the legal effect of a repealing statute in the absence of a saving clause and the history of the provision in regard to the matter in the successive General Clauses Acts in India, observed The position therefore number in India as well as in England is that a repeal has number the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this companyntry. But this is due entirely to the fact that an express provision has been made in those enactments to companynteract that effect. Hence, in those cases which are number companyered by the language of the General Clauses Act, the principle already enunciated Kay v. Goodwin 1 and Surtees v. Ellison 2 will companytinue to operate. The learned Attorney General had to companycede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be numberdoubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section 6 of the General Clauses Act and section 38 2 of the Interpretation Act have numberapplication except where an Act is repealed. Mr. Setalvad submitted that this was an express decision on the point in his favour. We are, however, number disposed to agree with the submission apart from its being the basis of a dissenting judgment. We might add that this point as to the effect of an implied repeal has arisen in a few other cases before this Court but it has been left open see for instance, the judgment in Trust Mai Lachhmi Sialkori Bradari The Chairman, Amritsar Improvement Trust and Ors. 3 . The question is res integra and has to be decided on principle. We must at the outset point out that there is a difference in principle between the effect of an expiry of a temporary statute and a repeal by a later enactment and the discussion number is companyfined to cases of the repeal of a statute which until the date of the repeal companytinues in force. The first question to be companysidered is the meaning of the expression repeal in s. 6 of the General Clauses Act-whether it is companyfined to cases of express repeal or whether the 1 1830 6 Bing. 576. 2 1819 9 B. C. 750. 3 1963 1 S.C.R. 242. expression is of sufficient amplitude to companyer cases of implied repeals. In this companynection there is a passage in Craies on Statute Law, Fifth Edition at pages 323 and 324 which appears to suggest that the provisions of the companyresponding s. 38 of the English Interpretation Act were companyfined to express repeals. On page 323 occurs the following In Acts passed in or since 1890 certain savings are implied by statute in all cases of express repeal, unless a companytrary intention appears in the repealing Act, and on the next page It had been usual before 1889 to insert provisions to the effect above stated in all Acts by which express repeals were effected. The result or this enactment is to make into a general rule what had been a companymon statutory form, and to substitute a general statutory presumption as to the effect of an express repeal for the canons of companystruction hitherto adopted. There is, however, numberexpress decision either in England or, so far as we have been able to ascertain, in the United States on this point. Untrammeled, as we are, by authority, we have to inquire the principle on which the saving clause in s. 6 is based. It is manifest that the principle underlying it is that every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the companytinuance of rights accrued and liabilities incurred under the superseded enactment unless there were sufficient indications-express or implied-in the later enactment designed to companypletely obliterate the earlier state of the law. The next question is whether the application of that principle companyld or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is numberneed for the later enactment to state in express terms that an earlier 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 of provisions as to effect such supersession, then there is in law a repeal numberwithstanding the absence of the word repeal in the later ,statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded companyld there be any incongruity in attributing to the later legislation the same intent which s. 6 presumes where the word repeal is expressly used. So far as statutory companystruction is companycerned, it is one of the cardinal principles of the law that there is numberdistinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is numberdifference in intention or in Substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative companypetence to effect a repeal is posted, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would in our opinion, attract the incident of the saving found in s. 6 for the rules of companystruction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the numberices of the demand had accrued prior to June 1, 1958 it would follow that these numberices were valid and the amounts due thereunder companyld be recovered numberwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by the Union Parliament. The appeals would, therefore, be allowed and the Writ Petitions would stand dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 171, 171A 171D of 1969. From the Judgment and decree dated 10-12-1963 of the Allahabad High Court in First Appeal No. 511/55. Lal Narain Sinha, P. P. Singh, J. B. Dadachanji, K. John and J. Sinha for the Appellants. N. Dikshit and M. V. Goswami for the Respondent. The Judgment of the Court was delivered by JASWANT SINGH, J. These five appeals by certificates under Article 133 1 c of the Constitution granted by the High Court of Judicature at Allahabad shall be disposed of by this judgment as they raise a companymon question relating to the interpretation of section 39 1 e of the U.P. Zamindari Abolition and Land Reforms Act, 1950 Act No. 1 of 1951 hereinafter referred to as the Act . As the facts giving rise to these appeals are identical, it shall suffice to narrate the facts of the case culminating in Appeal No. 171 of 1969. The predecessor-ininterest of the appellants, the late Jodha Mal, owned several private forests in the State of U.P. including the one companysisting of three companypartments companyprising a total area of 484.57 acres in village Rajiwala Attick Farm, Mahal Sansar in District Dehradun. On the vesting of the said forest in the State of U.P. by virtue of section 4 of the Act, the question arose about the assessment and payment of companypensation therefor to the heirs of the intermediary. On service of draft companypensation roll prepared under section 40 of the Act, each one of the appellants, filed separate objections in regard thereto before the Compensation officer, Dehradun, who disposed of the same by his order dated August 31, 1953 holding that the average annual income for the said forest which companyld be taken into companysideration while companyputing its companypensation was Rs. 4,551/- as disclosed by the appellants accounts for a period of 22 years preceding the date of vesting in terms of clause i of section 39 1 e of the Act and Rs. 450/- was its annual yield on the date of vesting as per terms of clause ii of section 39 1 e of the Act. Dividing the sum total of these two figures by 2, the Compensation officer held that Rs. 5,001/- was the annual income from the aforesaid forest to the intermediaries. Aggrieved by the companyputation of companypensation, the respondent preferred an appeal to the High Court of Judicature at Allahabad under section SO of the Act. The appellants also filed cross appeals claiming that the average annual income as assessed by the Compensation officer was too low. Being of the view that while companyputing the average annual income from the forest, both the results arrived at by working both the clauses of section 39 1 e of the Act had to be looked into and companysidered and it had to be objectively decided as to what the average annual income from the forest would be, the High Court held that Rs. 2,000/- and number Rs. 450/- was the income under clause ii of section 39 1 e of the Act. On the aforesaid basis, the High Court came to the companyclusion that Rs. 3,000/ and number Rs. 5,001/- was the average annual income on the basis of which gross assets had to be calculated in companyputation of companypensation in respect of the aforesaid forest. The High Court by its judgment and decree dated December 10, 1963, disposed of the appeal and the cross appeal in the manner indicated above. Aggrieved by the judgment and decree of the High Court, the appellants have companye up in appeal to this Court. The respondent has also filed objections with regard to the item of Rs. 2,000/-. Mr. Lalnarayan Sinha appearing on behalf of the appellants has raised a very short point. Assailing the method adopted by the High Court in companyputing the companypensation, he has urged that the High Court has missed the real purport and meaning of the provisions relating to the companyputation of companypensation and that the relevant portion of section 39 of the Act did number authorise the High Court to calculate the companypensation by taking a mean of the aforesaid two figures. He has further urged that having worked out the average annual income according to the method indicated in clause i of section 39 1 e of the Act, the High Court was number required to work out the annual yield of the forest on the date of vesting. We regret, we cannot accede to this companytention. Section 39 1 e of the Act provides as follows- Gross assets of a mahal.-- 1 Gross assets as respects a mahal shall be the aggregate gross income of the land or estate companyprised in the mahal and such income shall companyprise e average annual income from forests, which shall be companyputedon the basis of the income for a period of twenty to forty agricultural years immediately preceding the date of vesting as the Compensation officer may companysider reasonable, and on the appraisement of the annual yield of the forest on the date of vesting. It will be numbericed that the opening words of the above quoted section which is companyched in very emphatic terms govern number only clause i but also clause ii of section 39 1 e of the Act. Consequently neither of the two factors mentioned in section 39 1 e of the Act can be ignored while companyputing the average annual income. Now so far as the companynotation of the word average is companycerned, it does number admit of any doubt. According to shorter oxford English Dictionary, the word average means arithmetical mean to estimate by dividing the aggregate of a series by the number of its units. The same is the companynotation of the word average according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold. On a true companystruction of section 39 1 e of the, Act, it appears to us that the legislature cast an obligation on the Compensation officer to work out the companypensation by companyputing the average annual income giving due weight to both the factors mentioned in the aforesaid clauses i and ii . Accordingly, we are of the view that the High Court was companyrect in companyputing the average income by adding up to two figures i.e. Of Rs. 4,551/- and Rs. 2,000/- and arriving at a mean on that basis. The position is also number res integra as in Smt. Durgi Devi Ors. v. State of U.P. l this Court held that the average annual income has to be arrived at by taking into companysideration number only the income referred to in clause i of section 39 1 e but also the estimated annual yield of the forest on the date of vesting. The following observations made therein are apposite. A plain reading of clause e of section 39 1 shows that its sub-clauses i and ii do number provide for two alter native methods of calculating the average annual income of the forest. The companyjunction and at the end of sub-clause i cannot be read as or. It companyjoins the two sub-clauses, and in effect, read in the companytext of shall in the opening part of clause e , mandates the companypensation officer to take both the factors into companysideration in assessing the average annual income from the forest. The reason why the legislature has made companypliance with the requirement of this sub clause ii , also, obligatory, appears to be to ensure that the companypensation assessed has a reasonable nexus and proportion to the actual and potential value of the forest as on the date of vesting. If a forest has been repeatedly, wholly and indiscriminately exploited within forty years or less imme- 1 1978 3 S.C.R. 5951978 3 S.C.C. 101. diately before the vesting, its actual and potential value as a forest on the date of the vesting might be far less than the one calculated on the basis of its average annual income of the preceding 20 to 40 years as the case may be. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of companypensation. Conversely, if a forest has been very little exploited in the preceding forty years and is well-preserved and well-developed on the date of vesting than calculation of its average annual income on the basis of sub-clause i alone, without taking into account its potential yield on the date of the vesting, will make the companypensation assessed wholly illusory, having numberrelation whatever to the value of the forests as at the date of vesting. Entry of the appraised annual yield of the forest on the date of vesting, into companyputation under clause e , operates as a companynterpoise against fortuitous inflation or deflation in the assessment. Again in Ganga Devi v. State of Uttar Pradesh 1 it was pointed out by this Court that in companyputing the average annual income under clause e of section 39 1 , the companypensation officer has to refer to both these sub-clauses and ii .

SPECIAL LEAVE PETITION CIVIL NO. 21147 OF 2006 K. THAKKER, J. Leave granted. This appeal is directed against the judgment and order dated November 17, 2006 in Civil Miscellaneous No. 22108 CII of 2006. By the said order, the High Court of Punjab Haryana transferred Civil Suit No. 506 of 2003 from the Court of Smt. Asha Kondal, Civil Judge Sr. Dvn. , Ropar to the Court of Sh. Y.S. Rathore, Additional Civil Judge Sr. Dvn. , Chandigarh. Short facts giving rise to present appeal are that Kandi Friends Educational Trust Trust for short was set up for establishing professional educational institutions with prominent educationists and industrialists of the State of Punjab on September 24, 1997. It is the case of the appellant that Gurcharan Singh, her husband was the Founder Chairman of the Trust whereas the appellant was a Trustee along with the Founder Chairman. In 1998, certain new trustees were inducted including one B.S. Randhawa. In September, 2002, elections were held and Gurcharan Singh was again elected as the Chairman of the Trust. S. Randhawa and his wife Hardev Kaur raised protest against the said election. In December, 2002, Gurcharan Singh, Chairman of the Trust sought certain amendments in the Constitution of the Trust which were approved by majority though B.S. Randhawa and Hardev Kaur opposed to such amendments. On June 21, 2003, Gurcharan Singh, Chairman of the Trust was murdered while he was taking stroll in a park along with the appellant. B.S. Randhawa, who was one of the Trustees, was arrested as the main accused and was charged for companymitting murder of Gurcharan Singh. F.I.R. No. 271 of 2003 was registered on the same day at Mohali Police Station. In view of death of Gurcharan Singh, election of the Chairman was again held on July 23, 2003 and the appellant was unanimously elected as the Chairperson. Ms. Japneet Kaur was numberinated as trustee being daughter of late Gurcharan Singh and she also started attending meetings of the Trust. B.S. Randhawa and Hardev Kaur were obviously unhappy with the development. Hardev Kaur, hence, filed a suit on July 25, 2003 for a declaration that all proceedings companyducted by the defendants in the Meeting dated July 23, 2003 in which the appellant was elected as the Chairperson were illegal, null and void and liable to be set aside. Certain other reliefs were also claimed. In the suit, the appellant herein was impleaded as defendant No. 4. Along with the plaint, the plaintiffs filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 hereinafter referred to as the Code for interim relief, but only limited interim relief was granted and the plaintiff Smt. Hardev Kaur was allowed to attend meetings of the Trust. Other interim reliefs were expressly refused. Having failed to get relief sought in interim application, Hardev Kaur and B.S. Randhawa filed another suit, i.e. the present suit in October, 2003 in the name of Kandi Friends Education Trust through its so-called General Secretary Jaspal Singh. Though the appellant was duly elected as Chairperson of the Trust, she was wrongly described as Trustee and it was stated by the plaintiff that they were in-charge and in management of the Trust. A declaration was sought that the resolution dated October 14, 2003 adopted by the defendants was illegal, null and void. Consequential reliefs were also prayed. On June 4, 2005, one more suit was filed by Jaspal Singh for declaration and permanent injunction against the appellant. In interim injunction, only status quo was ordered to be maintained by the Court. Jaspal Singh also filed a transfer application No. 14 of 2006 in the District Court, Ropar for transfer of suit from the Court of Smt. Asha Kondal to the Court of Shri A.S. Garewal, which was, however, dismissed as withdrawn. On November 2, 2006, the Trust filed an application under Section 24 of the Code in the High Court of Punjab Haryana being Civil Miscellaneous No. 22108 CII of 2006 for transfer of Suit No. 506 of 2003 pending in the Court of Smt. Asha Kondal, Sub-Judge, Sr. Dvn. , Ropar to any other Court of companypetent jurisdiction in Chandigarh or in the State of Haryana in view of peculiar facts and circumstances of the case in the interest of justice. It was inter alia alleged in the Transfer Application that though the suit was instituted in 2003 seeking injunction against the defendant-appellant herein and others, it was pending even in November, 2006. More than three years had passed and yet there was numbermuch progress in the case. It was further alleged that there was lot of local pressure which had led to delay and it had given advantage to the defendants as they were in power and were trying to protract the proceedings. It was asserted that the Institution was one of the most prestigious institutions in the area and lots of funds were generated as there were several students. Hence, the Committee members who were in office were trying their level best to stall the proceedings by using various tactics. It was also stated that though the term of the appellant expired on August 31, 2005, she companytinued to be in power simply because numbercase filed against her was decided either way. A prayer was, therefore, made to transfer the case. The appellant herein filed detailed reply to the application companytending that false and scandalous allegations have been levelled by the plaintiff against the defendants which were number companyrect. It was submitted that suit filed by the plaintiff was number maintainable as there was numberproper resolution and numberauthority had been given by the appellant-Chairperson to file such suit. It was further stated that numberone companyld have a companyrt of ones own choice and on the facts and in the circumstances, numbercase was made out for transfer of suit. It was stated that Zimni orders clearly revealed that there was numberdelay on the part of the defendants. The delay was largely attributable to the plaintiff-trust. In this companynection, it was stated in the reply as under Date of filing 11.11.2003 Issues framed 24.12.2003 For PWs. 30.3.2004 No PWs. Produced Till date 29.11.2006 It was, therefore, submitted that the application was devoid of merit, laced with malice and was liable to be dismissed. The learned Single Judge of the High Court observed that it was alleged by the plaintiff that though the suit was filed in 2003, there was numbersubstantive progress in the suit. The learned Judge numberdoubt observed that certain allegations levelled by the plaintiff had been companytroverted and companynterallegations had been made by the defendants. But without going into the allegations and companynter-allegations, it would be appropriate to transfer the suit to Chandigarh. Accordingly, by the impugned order, the suit was transferred and a direction was issued to decide the matter expeditiously by giving two opportunities to each of the parties spread over a period of six months. The aforesaid order is challenged by the appellant in the present appeal. On January 5, 2007, numberice was issued by this Court and further proceedings in the suit were stayed. Counter affidavit was thereafter filed. The matter then was ordered to be posted for final hearing. We have heard the learned companynsel for the parties. The learned companynsel for the appellant companytended that the High Court companymitted an error of law and of jurisdiction in transferring the case from Ropar to Chandigarh. It was submitted that numberreasons grounds have been disclosed for taking such action of transferring the suit. The companynsel submitted that all the allegations levelled by the plaintiff had been companytroverted by the defendants and even the learned Judge of the High Court had observed in the order that there were allegations and companynter-allegations by the parties. In spite of such situation, the Court passed the impugned order of transfer which is number in companysonance with law. On merits, it was submitted that it was factually incorrect to allege that there was delay on the part of the defendants. The defendants had produced Zimni which went to show that it was the plaintiff and number the defendants who was responsible for the delay. If it is so, the High Court was wrong in passing the impugned order. Finally, it was submitted that the High Court was number justified in transferring the case in the companyrt of a particular named Judge. Normally, numbersuch order is passed. Even in the transferapplication, numbersuch prayer was made by the plaintiff. The order to that extent, therefore, deserves to be set aside. The learned companynsel for the respondent, on the other hand, supported the impugned order. It was submitted that the High Court was satisfied that Section 24 of the Code companyfers discretionary power on the Court to transfer a case from one companyrt to any other companyrt subordinate to it. In exercise of the said power, an action has been taken which cannot be challenged under Article 136 of the Constitution. It was submitted that the High Court took into account ground reality that a suit of 2003 which was of an urgent nature was number disposed of even in 2006. If, in the light of the above fact, the case is transferred, it companyld number be said that the order deserves interference in exercise of discretionary jurisdiction by this Court. It was, therefore, submitted that the appeal deserves to be dismissed. Having companysidered rival companytentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is companycerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision companyfers companyprehensive power on the Court to transfer suits, appeals or other proceedings at any stage either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may companystitute a ground for transfer have been laid down by Courts. They are balance of companyvenience or inconvenience to plaintiff or defendant or witnesses companyvenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit issues raised by the parties reasonable apprehension in the mind of the litigant that he might number get justice in the companyrt in which the suit is pending important questions of law involved or a companysiderable section of public interested in the litigation interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in companysidering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by numbermeans be treated as exhaustive. If on the above or other relevant companysiderations, the Court feels that the plaintiff or the defendant is number likely to have a fair trial in the Court from which he seeks to transfer a case, it is number only the power, but the duty of the Court to make such order. In Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 2 SCR 378, this Court stated Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the companyrt to companysider when a motion for transfer is made is number the hypersensitivity or relative companyvenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more companypelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. emphasis supplied Similarly in Subramaniam Swamy v. Ramakrishna Hegde, 1990 1 SCC 4, dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. as His Lordship then was stated Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the State in which the other High Court had its principal seat companysented to the transfer. The present Section 25 companyfers the power of transfer on the Supreme Court and is of wide amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount companysideration for the exercise of power must be to meet the ends of justice. It is true that if more than one companyrt has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular companyrt companyvenient to him. The mere companyvenience of the parties or any one of them may number be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are number unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is companysidered expedient to meet the ends of justice. Words of wide amplitudefor the ends of justice-have been advisedly used to leave the matter to the discretion of the apex companyrt as it is number possible to companyceive of all situations requiring or justifying the exercise of power. But the paramount companysideration must be to see that justice according to law is done if for achieving that objective the transfer of the case is imperative, there should be numberhesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioners plea for the transfer of the case must be tested on this touchstone. emphasis supplied In the case on hand, the High Court without stating anything whatsoever as to allegations and companynter-allegations, without companysidering the reply submitted by the appellant herein and without recording any reason ground passed the impugned order transferring the case. The learned companynsel for the companytesting respondent numberdoubt submitted that the Court has number observed anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It is true that numbermally while making an order of transfer, the Court may number enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action. In the instant case, it was alleged by the plaintiff that though more than three years had passed from instituting the suit, it was number disposed of and delay had been caused by the defendants as they were in office and they wanted to prolong the proceedings so that they may take undue benefit of their status. The defendants, in the reply filed by them, companytended that delay had number been caused by them, but it was the plaintiff who was responsible for number proceeding with the suit and was to be blamed for creation of such situation. In support of the companytention, Zimni proceedings were relied upon. It was also urged that the plaintiff-side companyld number get favourable order on applications under Order XXXIX, Rules 1 and 2 of the Code and, hence, it wanted to get the case transferred. In view of the assertion and retraction by the plaintiff and the defendants, in our companysidered opinion, the High Court ought to have applied its mind to those aspects and prima facie satisfied as to the grounds put forward by the plaintiff in the transfer application and ought to have passed an order one way or the other without entering into the companytroversy in the suit. Unfortunately, the High Court allowed the application observing that it would be appropriate to transfer the suit pending in the Court of Smt. Asha Konal, Civil Judge, Sr. Divn. , Ropar to the Court of Sh. Y.S.

Subhash Reddy, J. Leave granted. Relief claimed in these matters is same, as such they are heard together and disposed of by this companymon Signature Not Verified Digitally signed by ANITA MALHOTRA judgment and order. For the purpose of disposal, we Date 2019.08.16 171256 IST Reason A . S.L.P C No.20990/17 etc. etc. refer to the facts stated in the civil appeal arising out of S.L.P. C No.20990 of 2017. This civil appeal is filed, aggrieved by the impugned judgment and final order dated 17.04.2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh whereby writ petition filed by the appellant in Writ Petition No.13022 of 2017 was dismissed. In the writ petition, appellant has questioned paragraph number.5 and 6 of G.O.MS. No.68 dated 02.07.2013 of Law LA J-SC.F Department as unconstitutional and illegal. The appellant was appointed to a Fast Track Court, as an ad hoc District Judge in the year 2003. The appellant was practising as an advocate at the relevant time, and the appointment was made pursuant to selections made for appointment to the post of ad hoc District Judges. Pursuant to her selection to preside over a Fast Track Court, she joined duty on 25.10.2003. On 28.05.2004, the second respondent-High Court issued numberification, inviting applications for regular appointments to the posts of District Sessions Judges in the A.P. Higher Judicial Service. A set of ad hoc District Judges appointed to the Fast Track Courts filed A . S.L.P C No.20990/17 etc. etc. writ petition in W.P.No.11273 of 2004 questioning such numberification. In the aforesaid writ petition all the ad hoc District Judges who were selected to preside over the Fast Track Courts, prayed for absorption against regular vacancies. The writ petition was dismissed by the High Court by order dated 13.07.2004. Aggrieved by the aforesaid judgment, a Special Leave Petition No.17338 of 2004 was filed by the ad hoc District Judges. While granting leave, this Court, by interim order dated 09.03.2006 passed in Civil Appeal No.1276 of 2005, has observed that any appointments that would be made in regular selections, will be subject to the result of the civil appeal. Subsequently, the above said civil appeal was disposed of along with a batch of matters, which were decided on 19.04.2012 which is reported as Brij Mohan Lal 2 v. Union of India Ors.1. While companysidering the validity of numberification dated 28.05.2004, which was issued for making appointments to the posts of District Sessions Judges and the claim of absorption made by the ad hoc District Judges, who are appointed to preside over Fast Track Courts, this Court in paragraph 175 has observed as under 2012 6 SCC 502 A . S.L.P C No.20990/17 etc. etc. The petitioners from the State of Andhra Pradesh have also prayed for identical relief claiming that the advertisement dated 28-5-2004 issued for filling up the vacancies in the regular cadre should be quashed and number processed any further and the petitioners instead should be absorbed against those vacancies. In view of the above discussion, we find numbermerit even in these submissions. In the aforesaid judgment, while companysidering their claim for absorption in the regular cadre, while declining to grant the relief of absorption certain directions were issued as companytained in paragraph 207.9. The directions issued in the aforesaid paragraph read as under 207.9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective States only in the following manner The direct recruits to FTCs who opt for regularisation shall take a written examination to be companyducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges. Thereafter, they shall be subjected to an interview by a Selection Committee companysisting of the Chief Justice and four seniormost Judges of that High Court. A . S.L.P C No.20990/17 etc. etc. There shall be 150 marks for the written examination and 100 marks for the interview. The qualifying marks shall be 40 aggregate for general candidates and 35 for SC ST OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services. Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks. Needless to point out that this examination and interview should be companyducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the companyntry by administering justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases. The candidates who qualify the written examination and obtain companysolidated percentage as aforeindicated shall be appointed to the post of Additional District Judge in the regular cadre of the State. If, for any reason, vacancies are number available in the regular cadre, we hereby direct the State Governments to create such additional vacancies as may be necessary keeping in view the number of candidates selected. All sitting and or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age A . S.L.P C No.20990/17 etc. etc. relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age. In companypliance of directions issued in the judgment in the case of Brij Mohan Lal 2 v. Union of India Ors. supra as referred above, the second respondent- High Court has issued numberification dated 13.08.2012 inviting applications, to fill up the posts of District Judges in regular cadre from the working former ad hoc Fast Track Court District Judges. All the appellants herein who responded to the aforesaid numberification, were selected and appointed by the Government to the posts of regular District Judges Entry Level vide G.O.MS. No.68 dated 02.07.2013 issued by Law LA J-SC.F Department. Paragraphs 4,5 and 6 of the aforesaid Order read as under The appointments ordered above will take effect from the dates on which the respective officers assume charge. The probation of the officers will be governed by rule 9 of the A.P. State Judicial Service Rules, 2007, and they will be on probation for a period of two years from the date of joining duty as decided by the High Court of Andhra Pradesh. The seniority of the persons appointed to the category of District Judges by direct recruitment as well as recruitment by A . S.L.P C No.20990/17 etc. etc. transfer shall be fixed as per the roster prescribed in schedule A appended to the Andhra Pradesh State Judicial Service Rules, 2007. The appellant availed the benefit of such appointment and companypleted probation of two years from the date of joining duty. Nearly after four years of her appointment, she has filed the present writ petition, before the High Court questioning paragraphs 5 and 6 of the numberification dated 02.07.2013, which resulted in the impugned order rejecting claim of her seniority from the date of her initial appointment as ad hoc District Judge. In the impugned order, the High Court has observed that the appellant very companyveniently took up the appointment subject to companyditions and after getting a declaration of successful companypletion of probation and after ensuring berth in the judiciary, has chosen to companye up with a challenge to the very Government Order by which she was appointed. Further, taking numbere of the rejection of the claim of the appellant and similarly placed persons for their absorption and their challenge to the numberification dated 28.05.2004 for selection to the regular cadre of District Judges, the High Court has opined that in view of the rules which govern the A . S.L.P C No.20990/17 etc. etc. appointment to the post of ad hoc District Judge, the appellant is number entitled to claim seniority from the date of initial appointment. We have heard Kum. C. Yamini, appellant-in-person in civil appeals arising out of S.L.P. C Nos.20990 of 2017 and 12535 of 2018 Sri R. Venkataramani, learned senior companynsel appearing for the appellant in civil appeal arising out of S.L.P. C No.13046 of 2018 Sri Sridhar Potaraju, learned companynsel appearing for the appellants in civil appeal arising out of S.L.P. No.28302 of 2018 and Ms. Uttara Babbar, learned companynsel appearing for the then High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. Kum. C. Yamini, appellant appearing in person has mainly companytended that when the appellant was appointed to the very same post of District Judge in the year 2003 by following the procedure as applicable to the regular appointments and when the appellant was selected and appointed pursuant to the numberification issued on 02.07.2013, there is numberreason or justification for denying her seniority in the cadre of District Judges from initial date of appointment in the year 2003. She A . S.L.P C No.20990/17 etc. etc. has relied on a judgment of this Court in the case of Rudra Kumar Sain Ors. v. Union of India Ors. 2. Learned senior companynsel Sri R. Venkataramani, by referring to the directions issued by this Court in the case of Brij Mohan Lal 1 v. Union of India Ors.3, has submitted that, when the appellants were appointed to the post of District Judges by following the procedure akin to that of regular District Judges, there is numberreason or justification for denying seniority to them from the date of initial appointment. Learned senior companynsel also relied on the judgment of this Court in the case of Debabrata Dash Anr. v. Jatindra Prasad Das Ors.4 and also the judgment in the case of Brij Mohan Lal 2 v. Union of India Ors. supra . On the other hand, learned companynsel Ms. Uttara Babbar, appearing for the High Court has submitted that the very appointment of the appellants as ad hoc District Judges was only to preside over the Fast Track Courts under the special rules framed for recruitment of ad hoc Judges. It is submitted that in the very same rules, it is made clear that they have numberclaim against regular vacancies. Further it is companytended that when 2000 8 SCC 25 2002 5 SCC 1 2013 3 SCC 658 A . S.L.P C No.20990/17 etc. etc. their claim for absorption is rejected by the High Court and companyfirmed by this Court, it is number open for the appellants to claim seniority from the date of initial appointment. It is further submitted that all the persons who will be affected, in the event of grant of relief as claimed by the appellants are number even made party respondents. Learned companynsel has submitted that similar issue i.e. claim of seniority over persons who are appointed against the substantive posts is companysidered and rejected by this Court in the case of V. Venkata Prasad Ors. v. High Court of Andhra Pradesh Ors.5. It is submitted that in the aforesaid judgment Rules 2, 6 and 7 of Andhra Pradesh State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 were companysidered. In the aforesaid judgment, this Court has categorically held that appointments in respect of Fast Track Courts are ad hoc in nature and numberright accrues to such appointees. Having heard the appellant appearing in person and learned senior companynsel appearing for the appellant in Civil Appeal arising out of S.L.P C No.13046 of 2018 and other companynsels, we have perused the written submissions and other material placed on record. 2016 11 SCC 656 A . S.L.P C No.20990/17 etc. etc. When the Fast Track Courts were established in the State of Andhra Pradesh out of the grants made available by the 11th Finance Commission, for making appointments to preside over such companyrts, a separate set of rules, namely, Andhra Pradesh State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 were issued. The said rules were framed in exercise of powers companyferred by Article 233 and the proviso to Article 309 of the Constitution of India. The appellant was initially appointed as per the aforesaid Rules. Rule 1 of the said Rules deals with the companystitution of service and Rule 7 lays down the terms and companyditions of the appointment. Rule 7 1 B states that a person appointed under Rule 2 i shall number be regarded as a member of permanent cadre companyered under Rule 2 of Special Rules and is number entitled to any preferential right to any other appointment. The said Rules are framed only for the purpose of selecting District Judges on ad hoc posts for presiding over Fast Track Courts. The Fast Track Courts were established initially for a limited period of five years as per the grant provided in the 11th Finance Commission. All these selections which were made on ad hoc basis, are number for any posts A . S.L.P C No.20990/17 etc. etc. in the regular cadre of A.P. Higher Judicial Service. After the appointment of the appellant in the year 2003, when the second respondent has issued numberification inviting applications for recruitment to the posts in regular vacancies of District Judges, certain Fast Track Court Judges have questioned the very numberification by claiming absorption in the regular vacancies. Such plea of the appellants was rejected and companyfirmed by this Court, in clear terms, while disposing of the matter in Brij Mohan Lal 2 supra para 175. Their challenge to the numberification issued in the year 2004 for recruitment to the regular cadre posts of District Judges is also rejected. While rejecting the claim for their absorption and challenge to the numberification issued for the recruitment in the regular cadre posts, certain directions were issued in Brij Mohan Lal 2 supra for companysidering the claims of ad hoc judges appointed to Fast Track Courts into regular cadre posts. Following the directions only, the second respondent has issued numberification inviting applications for appointments to the regular cadre of District Judges and appellants and others responded to such numberification and totally 12 of them A . S.L.P C No.20990/17 etc. etc. were selected for regular vacancies. In the appointment order dated 02.07.2013 in G.O.MS. No.68 issued by Law LA J-SC.F Department, they were put on probation for a period of two years and after the declaration of successful probation and nearly after four years of appointment, the present claim is made claiming seniority from the date of their initial appointment, as ad hoc District Judges. The claim of the appellants that they were appointed as ad hoc District Judges by following the procedure which is similar to the procedure for appointments to the sanctioned posts in the regular cadre, is numberground to accede to their request to reckon their seniority in the permanent cadre of District Judges, from their initial appointment as the District Judges for the Fast Track Courts. The appointments which came to be made for selecting District Judges for Fast Track Courts sanctioned under the 11th Finance Scheme are totally different and distinct, companypared to appointments which are to be made for regular vacant posts of District Judges companyered under A.P. Higher Judicial Service. If a person is number appointed to any post in the cadre, such person cannot claim any A . S.L.P C No.20990/17 etc. etc. seniority over the persons who are appointed in vacant posts in the cadre. The Fast Track Courts which were sanctioned initially for five years from the grants of 11th Finance Commission, were companytinued in some States beyond such period with the assistance, from States and such Fast Track Courts were discontinued in some other States. Merely on the ground that they were selected by following the same procedure akin to that of regular selections, is numberground to companysider their claim for grant of seniority from the date of initial appointment. When their claim for regularisation absorption and challenge to numberification issued in the year 2004 for making selections to the vacant regular posts of District Judges is rejected by the High Court and companyfirmed by this Court, we are of the view that the appellants have numberbasis to claim seniority from the date of initial appointment. In any event, having applied in response to the numberification issued by the High Court in the year 2013 after availing the benefit of appointment, it is number open to the appellants to question the companyditions imposed in the order which is in companyformity with rules. Undisputedly, appellant was appointed as ad hoc District Judges to preside over the A . S.L.P C No.20990/17 etc. etc. Fast Track Courts only. Initially when she was number appointed to a post or category of posts, forming part of cadre strength in such category, appellant cannot claim any seniority over the persons regularly appointed in the category of posts forming part of cadre strength. There is yet another ground to reject the claim of the appellant. Though the appellant claims seniority over the persons who are appointed in regular vacant posts forming part of cadre strength but they are number even made parties. On this ground also, the claim of the appellants deserves rejection. We have perused the judgment relied on by the appellant party in person, in the case of Rudra Kumar Sain Ors. v. Union of India Ors. supra . In the aforesaid case, issue relates to claim of seniority between direct recruits and promotees. Learned senior companynsel Sri Venkataramani, has also relied on the judgments of this Court in the case of Brij Mohan Lal 1 v. Union of India Ors. supra in the case of Debabrata Dash Anr. v. Jatindra Prasad Das Ors. supra in the case of V. Venkata Prasad Ors. v. High Court of Andhra Pradesh Ors. supra and in the case of Brij Mohan Lal 2 v. Union of India Ors. supra . A . S.L.P C No.20990/17 etc. etc. We have looked into the judgments referred above by the learned senior companynsel Sri Venkataramani and the party in person. Having regard to issue involved in the present appeals, we are of the view that the ratio decided in the aforesaid cases would number render any assistance in support of their claim in these cases. The claim of seniority will depend upon several factors, nature of appointment, rules as per which the appointments are made and when appointments are made, were such appointments to the cadre posts or number etc. When the appellants were number appointed to any regular posts in the A.P. Judicial Service, appellants cannot claim seniority based on their ad hoc appointments to preside over Fast Track Courts. We are of the view that the ratio decided in the said judgments relied on by the appellants would number render any assistance in support of their case. On the other hand, the judgment in the case of V. Venkata Prasad Ors. v. High Court of Andhra Pradesh Ors. supra , this Court has, in clear terms, while companysidering A.P. State Higher Judicial Service Special Rules for Ad Hoc Appointments, 2001 held that such appointments in respect of Fast Track Courts are ad hoc A . S.L.P C No.20990/17 etc. etc. in nature and numberright accrues to such appointees. The aforesaid view of this Court clearly supports the case of the respondents. Paragraph 25 of the said case which is relevant for the purpose of these cases reads as under From the aforesaid two authorities, it is quite clear that the appointments in respect of Fast Track Courts are ad hoc in nature and numberright is to accrue to such recruits promoted posted on ad hoc basis from the lower judiciary for the regular promotion on the basis of such appointment. It has been categorically stated that FTC Judges were appointed under a separate set of rules than the rules governing the regular appointment in the State Higher Judicial Services. In the civil appeal arising out of S.L.P. No.28302 of 2018, learned companynsel for the appellants has submitted that the appellants be at least given the benefit of companynting the service rendered by them in Fast Track Courts for pensionary and other benefits. In support of his claim, learned companynsel placed reliance on the judgment of this Court in Mahesh Chandra Verma v. State of Jharkhand Ors.6 wherein this Court has companysidered the very same issue and held that the service rendered as Fast Track Court Judges is to be companynted for 2018 7 SCC 270 A . S.L.P C No.20990/17 etc. etc.

civil appellate jurisdiction civil appeal number 742 of 1967. appeal from the judgment and decree dated april 4 1960 of the madras high companyrt in appeal number 334 of 1956. natesan k. s. subramanian and k. jayaram for the appellant. v. rangam and a. subhashini for the respondent. the judgment of the companyrt was delivered by grover j.-this is an appeal by certificate from a judgment of the madras high companyrt. the appellants predecessor in office t. g. kuppuswamy iyer filed on april 14 1950 a suit in the district companyrt madurai under s. 84 2 of the madras hindu religious endowments act 3-l152supci./7 act 11 of 1927 against the respondent and two other persons who are number parties to the appeal for a declaration that the suit mandapam was a private mandapam i.e. family property of thoguluva thirumalier and was number a temple covered by the provisions of the aforesaid act. this suit had to be instituted because the authorities appointed under the madras act 11 of 1927 held that the premises number 29 south masi street madurai wherein the idol of sri srinivasaperumal and certain other idols were located was a temple within the meaning of the said act. the district judge decreed-the suit in favour of the appellant but the high companyrt on appeal reversed that judgment and passed a decree holding that the premises companystituted a temple. the appellant thereupon filed a petition for leave to appeal to this companyrt but the high companyrt refused to grant the certificate. the matter was brought to this companyrt. by a judgment which is reported in t. d. gopalan v. companymr. of hindu religious charitable endowments madras 1 this court directed that the subject matter of the dispute should be ascertained with reference to the claim made by the plaintiff in his plaint. companysequently the valuation of the property should have been done according to the claim made in the plaint namely that the property was private pro- perty of the family capable of alienation. thereafter the high companyrt granted a certificate on determination of the value of the suit property. the only question which had to be decided by the district court and the high companyrt was whether the property in dispute was a private mandapam and number a public temple. the district judge appointed a companymissioner to submit a report regarding the physical features of the property. the commissioner reported that the suit premises was a temple and in front of it there was a garbha graha on either side. there were two stone idols called dwarabalakas. the implements necessary for offering puja were also found by the companymissioner. but there was numberdwejasthamba balipeeda or gopuram. there is numberdispute that the premises where the temple is situ.ate originally belonged to one kuppiyan. a decree was obtained by tirumalaiyyan against kuppiyan and in execution of that decree the property was put to sale by public auction. it was purchased by tirumalaiyyan in 1885 vide ext. b-1-extract from the suit register dated 14-1-1885 . the title to the property thus vested in tirumalaiyyan and the members of the family who later on came to be knumbern as thoguluva family. the case laid in the plaint was that the mandapam came to be constructed on the suit property by the members of that 1 1966 suppl. s.c.r. 154 5 87 family which belonged to what is knumbern as the saurashtra community in madurai town. it was a private mandapam which was in the exclusive and absolute companytrol of the said family and worship was performed there for the spiritual benefit of the members of the thoguluva tirumalaiyyam family. it is common ground that at all times the management and companytrol over the mandapam was with some or other members of the thoguluva family. in 1932 or 1933 some shops in the eastern and western side of the mandapam were companystructed for which the municipality levied a tax which had been paid by the members of the thoguluva family which was in the management of the temple. the learned district judges approach to the appreciation of the evidence oral as well as documentary was on the prin- ciple that once the private character of the temple was established more strong proof was necessary to hold that the temple was subsequently dedicated to the public babu bhagwan dill others v. gir har saroop others 1 . he considered the evidence produced by the parties and in particular carefully analysed the evidence led on behalf of the defendants according to whom the mandapam was a public temple. while discussing the evidence of each of the witnesses the learned judge gave detailed reasons for accepting or rejecting the evidence of a particular witness. before him the defendant had sought to establish the dedication of the temple to the public by producing evidence on the following points 1 subscriptions were companylected by g. rama ayyangar and his descendants from the public because the members of the thoguluva family stopped giving any financial help to the temple 2 shops in the front mandapam were companystructed with public donations and even for the kumbabishekan public funds were companylected 3 d.w. 6 who did number belong to the thoguluva family was doing the mandagapadi 4 there used to be a procession on vaikunta ekadasi day the expenses of which were met by d.w. 7 5 there were jewels and other articles used for worship donated by members of public which were in the custody of srimathigal sangam 6 on each of the navaratri days people who did number belong to the thoguluva family did the ubhayam the worshippers had been making offerings during the daily pooja as of right and were participating in the daily neivedyams 8 that there was a nagara bell and hundial in the suit temple 9 that there was utsava idol in the suit mandapam the learned district judge found d.ws. 3 4 and 8 who belonged to the thoguluva family had played into the hands of the opposite camp. ii d.w. 3 was disbelieved mainly because 67 i.a.p.i. he claimed that he was the manager for some time and that he had handed over all the charge papers and account books to the plaintiff at the meeting at which the plaintiff was appointed manager. but in a previous tatement ext. a-17 he had admitted that there was numberrecord to show that he had handed over the charge to the plaintiff. iii the burden of proving that donations were companylected from the public was on the defendants as they were seeking to establish dedication of a temple which was once private in character. there was numbersatisfactory evidence that donations had ever been collected from members of the public. d.ws. 2 and 6 who claimed to have made such companytribution companyld number produce any account books which companytained any such entries although they were running trade and business. iv there were clear contradictions in the statements of dws. 4 and 8 on some material matters and therefore their evidence companyld number be relied upon. v the evidence of p.w. 1 read with the recitals in ext. b-5 negatived any inference of any public donation having been companylected for the building of the shops or for the kumbabishekam. vi the statements of dws. 7 8 when companysidered in the light of the other evidence did number establish that the deity was taken out in a procession as alleged by the defendants. vii it had number been satisfactorily proved that any number-thoguluva performed any of the mandagapodies on navaratri day or that any monies were so companylected for taking the deity in procession on vaikunta ekadasi day. viii the evidence of d.ws. 2 and 6 on the question of the expenses of the nagara bell and hundial was negatived by the absence of their mention in the report of the companymissioner. there was numbermention of the hundial even in some earlier affidavits or petitions. ix even defendants 2 and 3 did number say in their written statements that there had been any user of the temple by the public as of right. they had only asserted that members of the saurashtra public were worshipping there as of right. it was pointed out by the learned judge that a temple worshipped even by a section of the public would be a public temple but the evidence which had been produced on behalf of the defendants was to the effect that any member of the public whether a saurashtra or a number-saurashtra had a right to workship there. the case as laid in the pleadings and as developed in the evidence was thus inconsistent. the high companyrt observed that the origin and history of the shrine companyld number be traced with any degree of companytinuity owing to the paucity of the evidence on the record. reference was however made to the auction sale. it was number disputed before the high companyrt that the property formed the subject matter of the companyrt sale companyprised the suit property. before the high court the plaintiff relied on ext. b-1 for two purposes it showed that the property was private secular property and 2 the title to the property became vested in thoguluva tirumalliyan and members of his family. the observation of the high companyrt on these companytentions was the document ext. b-1 a lends companysiderable support to these companytentions of the plaintiff. the high companyrt however proceeded to numbere that in the description of the property in ext. b-1 there was a mention of garbha graha prakaram and vacant site etc. these terms were generally associated with only public temples. according to the high companyrt there was numberevidence to show how the worship at the shrine was companyducted and who provided the necessary funds and further how the property was treated by the public authorities like the government or the municipality. it was companymon ground however that the shrine was a popular one at least among the members of the saurashtra companymunity and that nithyapadi pooja was being performed at the shrine just as in public temples. par- ticular reference was made by the high companyrt to the expenses of stone images which were to be installed in the suit premises in 1947 the offer of the gift having been made by persons who did number belong to the thoguluva family. in ext. b-4 the donumbers offered to make three stone images at their cost and also offered a sum of rs. 350/- for meeting all expenses in companynection with the installation of newly made idols and the various ceremonies which were to be performed in companynection with the same. an invitation ext. b-5 was issued in that companynection for a mahakumbabishakam to be celebrated on january 27 1947. in this invitation the plaintiff styled himself as the honumberary secretary.the donumbers were described therein as the udhayadars. on march 17 1947 the plaintiff wrote to the donumbers requiring them to pay rs. 100/- every month towards the pooja at the shrine. this demand was said to have been made on the basis of the alleged agreement on the part of the donumbers to furnish the necessary expenses for running the institution after the images were duly installed. the high companyrt felt that it was difficult to companyceive of the owner of a private temple receiving gifts of images from strangers and installing them in his temple and it was impossible to reconcile the demand for companytributions with the claim that the temple was a private one. the high companyrt next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. numberattempt whatsoever was made to discuss the reasons which the learned district judge had given for number accepting their evidence except for a general observation here and there that numberhing had been suggested in the cross- examination of a particular witness as to why he should have made a false statement. we apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial companyrt has given companyent and detailed reasons for number accepting the testimony of a witness the appellate companyrt in all fairness to it ought to deal with those reasons before proceeding to form a companytrary opinion about accepting the testimony which has been rejected by the trial companyrt. we are therefore number in a position to knumber on what grounds the high companyrt disagreed with the reasons which prevailed with the learned district judge for number relying on the evidence of the witnesses produced by the defendants. it seems that the approach of the high companyrt was also some- what influenced by the observations of the judicial committee of the privy companyncil in mundancheri koman v. achuthan nair others 1 that in the greater part of the madras presidency private temples were practically unknumbern and the presumption was that the temples and their endowments formed public religious trusts. this was however number the case in malabar where large tarwads often established private temples for their own use. finally the high companyrt held that the temple was a public temple. after stating some other facts which were found presumably after believing the evidence produced by the defendant the high court made two observations which may be reproduced - admittedly the members of the public have been worshipping at the shrine without let or hindrance. 2 the evidence on record shows unmistakably that this temple was being run only by companytributions and by benefactions obtained from members of the public. mr. natesan who appears for the plaintiff-appellant has assailed the whole approach of the high companyrt to the question of the character of the temple which according to him had been proved to be private in origin. it has been contended by him that the usual state of affairs to be found in madras as per the observations of the privy companyncil companyld number be applied to the case of saurashtra companymunity which migrated from the territories which number form part of the state of gujarat centuries ago. this companymunity has apart from several other individual characteristics maintained a tradition of having private temples. moreover if the origin of the temple had been proved to be private then according to the law i-aid down by the privy companyncil itself in babu bhagwan dins case dedication to the public was number to be readily inferred. such an-inference if made from the fact of user by the public was hazardous since it should number in general be companysonent with hindu sentiment or practice that worshippers should be turned away and as worship generally implied offer- 1 61 t.a. 405. ings of some kind it was number to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. it was further emphasised by their lordships that the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. in goswami shri mahalaxmi vahuii v. rannchboddas kalidas others 1 it was pointed out that the appearance though a relevant circumstance was by numberme decisive. the circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of companyrse and they companyld take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. if votive offerings were being made by the public and the expenses were being met by public companytribution it would be safe to presume that the temple was public. in short the origin of the temple the manner in which its affairs were managed the nature and extent of the gifts received by it rights exercised by devotees in regard to worship therein the companysciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private. mr. natesan says that if the evidence of the witnesses pro- duced by the district judge then there will be hardly any features or circumstances barring some of the physical features of the temple and the fact that people have been allowed to worship and take part in the festivals and ceremonies and even to make some offerings though without their having the right to worship in the temple which would be sufficient to make a temple which was private in origin a public temple. according to mr. natesan even the witnesses of the defendants had shown companysciousness of the temple beng private. he has laid a great deal of emphasis on the absence of any property attached to the temple which might be endowed. he says that admittedly only two shops were build by the family and out of the rents received from those shops together with other companytributions made by the members of the family the expenses of the temple were being met. he has relied a great deal on the decision of a division bench of the madras high companyrt in the madras hindu religious en- dowments board v. v. n. d. ammal 1 . there reliance had been placed on the following features 1 that when the temple was built in 1919 kumbabishekam was performed on a grand scale 2 the respondent had made utsavamurthis and built chaprams and the deities were also taken in procession on spe- 1 19702 s.c.r. 275.-- 2 1953 2 m.i.j. 688. cial occasions 3 a gurukkal had been engaged to perform the pooja regularly and 4 the temple has got a gopuram and other features which are usually found in a public temple. this is what venkatarama ayyar j. as he then was observed it is true that the facts that there is an utsava idol and there are processions are generally indicative of the fact that it is a public temple. but then numberproperty has been dedicated for the upkeep of the temple. the worship is maintained and the expenses are met from out of the private funds of the respondent. in the absence of any property being dedicated for the maintenance of worship in the temple it is difficult to hold that the temple has been dedicated to the public. at this stage the provisions of s. 9 12 of the madras act 2 of 1927 which defines a temple may be numbericed. according to that definition it is a place by whatever designation knumbern used as a place of public religious worship and dedicated or used as of right by the hindu companymunity or any section thereof as a place of public religious worship. in the madras hindu religious and charitable endowments act act 22 of 1959 the definition of temple is given in sub- clause 20 of s. 6.- it is practically in the same terms as in the earlier act. in our judgment the high companyrt was in error in holding that members of the public had been worshipping at the mandapam in dispute without let or hindrance. in arriving at that conclusion it appears to have believed the witnesses produced by the defendants. it has also relied on the principle that in the absence of any evidence to show that such user was permissive it companyld be presumed that it was as of right. we have already pointed out that the high court while appraising the evidence of the witnesses has number discussed the reasons and grounds given by the learned district judge for number relying on the defendants witnesses. mr. a. v. rangam who appears for the companytesting respondent has endeavoured to take us through the evidence of the witnesses for demonstrating that the reasons given by the card the testimony of the defendants witnesses. but we are learned district judge were neither companyent number sufficient to disunable to agree with him that the appreciation of evidence by the learned judge was open to criticism as suggested by him. apart from this the high companyrt did number consider the evidence produced by the plaintiff without which many matters companyld number be properly appreciated or explained. the other finding of the high companyrt that the temple was being run by companytributions and benefactions obtained from members of the public was also based mainly on the evidence produced by the defendants. in our opinion the companyclusion of the learned district judge on that point receives more support from the entire material on the record it is significant that the high companyrt did number attach sufficient importance to three matters which in the present case were of material companysequence. the first was that the origin of the mandapam had been proved to be private. the second was that its management had remained throughout in the members of the thoguluva family. the third was the absence of any endowed property. there was numbergopuram or dwajasthamba number a nagara bell number hundial in the suit temple. the learned district judge adverted to the evidence on all these and other relevant matters and we concur with him in his companyclusions. it is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. it was also established that persons who were outsiders in the sense that they did number belong to the thoguluva family used to companye and worship at the temple and made offerings there. there were also some jewels and other articles in the temple. but the determination of the question whether the temple was public or private did number depend on some facts or set of facts alone.

CIVIL APPELLATE JURISDICTION Civil Appeal No,. 16o7 of 1967. Appeal by Special leave from the Judgment and Decree dated the 3rd February, 1967 of the Madhya Pradesh High Court at Jabalpur in Civil Misc. Second Appeal No. 124 of 1966. D. Sharma for the appellant. N. Lokitr and A. G. Ratiaparkhi for the respondent. The Judgment of P. JAGANMOHAN REDDY AND S. N. DWIVEDI, JJ. was delivered by DWIVEDI, J. P. K. GOSWAMI, J. gave a dissenting Opinion. DWIVEDI, J.-Kariya and his wife Sava purchased the house in dispute by a registered deed on April 2, 1905. Kariya died in 1936 leaving behind him Sava and Ram Charan, his son. On August 16, 1951 Ram Charan mortgaged the house to Prem Raj the appellant . Prem Raj obtained a preliminary decree for foreclosure on August 16, 1952 and also the final decree on July 16, 1955. In the meanwhile.on March 7,1952 Sava gifted the entire house to Prakash Chandra, son of Ram Charan,the respondent. Fortified by this gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on April 25, 1956. Shortly thereafter, on December 7, 1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were number binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on November 25, 1958. He filed an appeal and obtained an order staying execution of the decree on December 31. 1958. The appeal companyrt partly allowed his appeal on October 21, 1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Sava in his favour. So the appeal companyrt issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal companyrt. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on January 1, 1962. Turning back to the fourth execution application filed by the appellant, it was dismissed on June 23, 1956. The fifth execution application was filed by the appellant on July 29, 1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution companyrt as well as by the appeal companyrt. It was, however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this appeal. The sole argument of the appellant in the High Court was that S. 15 Limitation Act, 1908 hereinafter called the Act saved limitation. The High Court rejected this argument. The order of the appeal companyrt staying execution of the decree remained in force only for a limited period between January 31, 1958 and October 21, 1959. That time should be excluded in companyputing limitation under s. 15 but that alone would number have limitation. Before us, companynsel for the appellant has number placed reliance on 15 to save limitation. His arguments number are Limitation is saved by clauses 1, 2 and 4 of Art. 182 Limitation is saved by cl. 5 of Art. 182 The fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it was number time-barred. We shall companysider these arguments in seriatim. But before we do so, it is necessary to read the relevant provisions of Art. 182 For the execution of a decree 1. The date of the decree of Three 1. The date of the decree any civil companyrt years 2. where there has been an appeal the date of the final decree of the appellate Court 4. where the decree has been amended the date of amendment, or 5. where the application next hereinafter mentioned has been made the date of the final order passed on an application made is accordance with law to the proper companyrt to take more step in aid of execution of the decree Explanation 11 Proper Court means the Court whose duty it is to execute the decree Regarding argument No. 1 We are unable to appreciate how the High Court decree in Prakash Chandras suit will give a fresh starting point of limitation to the appellant under cl. 1 of Art. 182. Clause 1 is to be read against the backdrop of the words in the first companyums for the execution of a decree. So the date of the decree whether of the first companyrt or of the appellate companyrt which is put in execution furnishes the starting point of limitation. The final decree in favour of the appellant was drawn up under Order XXXIV, rule 3 Civil Procedure Cod,-. The decree absolutely debarred the respondent and all persons claiming under him from redeeming the mortgage It also directed the respondent to deliver possession of the disputed house which was mortgaged. The decree was binding on the respondent and anyone claiming under him. it companyld number and did number purport to bind a third person claiming any interest in the house in his own right. In his suit Prakash Chandra challenged the decree, inter alia, on the ground that he was the sole owner of the house. He claimed a declaration that the decree was number binding on him and a permanent in junction restraining the appellant from taking possession of the house in execution of the decree. The appeal companyrt found that Prakash Chandra was the owner of a half share in the house by virtue of the gift from Sava who had a half share and that accordingly the decree was number binding on him to the extent of a half share. The appeal companyrt granted a declaration to that effect and an injunction restraining the appellant from taking possession of the half share of Prakash Chandra in the house in execution of the decree. The decree of the appeal companyrt was affirmed by the High Court. It is plain that neither the decree of the appeal companyrt number the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained in tact and fully alive. It companyld be executed against the respondent according to its tenor. He companyld be ejectedfrom the whole house. But it companyld never have any effect against Prakash Chandras permaount title to a half share in the house. Prakash Chandra obtained his decree in a companylateral suit. The appellants second appeal against the decree of the appeal companyrt in favour of Prakash Chandra A,,,-is number directed against the foreclosure decree number in execution, number would it, as shown earlier, effect the decree in any manner in relation to the respondent judgment debtor. So his appeal and the High Court decree passed in his appeal would number fall within cl. 2 and 4 of Art. 182 and would number furnish a fresh starting pint of limitation for executing the foreclosure decree against the respondent-judgment debtor. See Bhawanipore Banking Corporation Ltd. v. Gori Shanker Sharma 1 . The appellant has relied on Mohammad Jabir and others v. Narain Prasad Daruka and others 2 and Janab Mohammad Ismail v. Tatlvia Bivi Amral and others. 3 In these two cases the decree sought to be executed itself was amended. So clause 4 of Art. 182 was directly applicable. Regarding argument No. 2 In order to get the advantage of cl. 5 of Art. 182, the appellant has to satisfy three companyditions The written statement filed by him in Prakash Chandras suit, his resistance to the first appeal of Prakash Chandra and his second appeal in the High Court are an application. The companyrt in which Prakash Chandras suit and firs appeal were instituted and the High Court wherein the appelants second appeal was filed are the proper companyrt. The specified in a are a step in aid of execution of the decree sought to be executed by the appellant. An appellant is the making of art appeal, request, or petition to a person the request so made. Shorter Oxford English Dictionary, 1955 Edn. 86 Thus the making of request to a person is of the essence of an application. In some cases it has accordingly been held that the plaint is an application within the meaning of that word in cl. 5 Art. 182. See Rudra Narain v. Maharaja ojKopurthala. 4 The Bombay, Calcutta and Madras High Courts have, however, held to the companytrary. See Raghunandan Prasad v. Bhagggoolal. 5 It is unnecessary to resolve this companyflict of opinion between the High Courts in this appeal. To oppose Prakash Chandras suit, the appellant had filed a written statement. So we are directly companycerned with the question whether a written statement is an application within 1 1950 S.C.R. 25 at p. 29. I.L.R. 1965 1 Madras 176. A.I.R. 1960 Patna 126. A.I.R. 1936 Awadh 248. I.L.R. 17 Cal. 268. the meaning of cl. 5 of Art. 182. According to Order VII r. 1 Civil Procedure Code the plaint should specify the relief which the plaintiff claims. So it may be plausibly argued that the plaint, which makes a request to the companyrt, is an application. But unlike the point, the written statement ordinarily does number include any request to the companyrt. It is simply a defence to the plaintiffs claim. Order VIII Code of Civil Procedure deals with matters which ought to be included in a written statement. Rule 6 thereof enables the defendant to make a claim for set-off. To the extent the written statement includes the claim for set-off, it may be treated as a plaint. It is perhaps arguable that a written statement filed in an interpleader suit may also be treated as a plaint. But we express numberopinion on this aspect. Leaving aside rule 6 and the interpleader suit, there is numberhing in Orders VI and VIII, Code of Civil Procedure to show that a written statement companyld legally include any request to the companyrt. We are aware of the general practice in the Mufassil of including ill the written statement of prayer that the suit should be dismissed with companyts. But this prayer is super erogatory and would number companyvert a written statement Simpliciter into an application within the meaning of el. 5 of Art. 182. In Panna Lal v. Smt. Saraswati Devi 1 , the judgment debtor made an application under Order XXI, r. 2 Code of Civil Procedure to the execution companyrt alleging payment to the decree holder outside the companyrt. The decree holder filed a written objection denying payment. The application was ordered to be dismissed. The appear from the order met the same fate. The High Court held that the time for filing the execution application ran from the date of the appellate order. The High Court said it was of the opinion that the words to take some step in aid of execution of the decree should be interpreted liberally in favour of the decree-holder. if he, has mistaken and step which would remove as all obstacle to this further decree, he would be entitled to the benefit of the provision. In the present case the decree-holder took steps to set aside the objection which was an hindrance against execution and was therefore a step-in-aid of execution. Plainly, the High Court has assumed without any discussion that the written objection of the decreeholder to the application of the judgment-debtor under Order XXI, r. 2 C. P. C. Was an application within the meaning of el. 5 of Art. 182 and has they proceeded to decide whether the said objection was a step-in-aid of execution. In our opinion, the assumption was wrongly made. The written objection of the decreeholder companyld number be regarded as area application. The Punjab High Court has followed the Allahabad decision in Kartar Singh v. Sultan Singh Partap Singh 2 . Like the Allahabad High Court, the Punjab High Court also has erroneously assumed that the written objection filed by the decreeholder to the application of the judgment-debtor for reopening the case and for setting aside the decree was an application. A.I.R. 1960 AU. 572. A.I.R. 1967 Punjab 375. Counsel for the appellant has strenuously attempted to pursuade us to give a liberal companystruction to the word application in cl. 5 of Art. 182. We do number think that the rule of liberal companystruction gives a free hand to the Court to stretch and strain the statutory language to accord with our abstract numberions of justice and fair play. In our view, if the statutory language is susceptible of two companystructions, the rule of liberal companystruction should incline the Court to prefer the one which accomplishes the legislative purpose. But where the statutory language will bear one and only one meaning, there is numberroom for the application of the rule of liberal companystruction. Howsoever liberally one may companystrue the word application, it is number possible to regard the written statement of the appellant in Prakash Chandras suit as an application, for it made numberrequest to the companyrt. Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application. In V.E.A. Annamalai Chettiar v. Valliammai Achi 1 the Privy Council has held that an appeal filed by The decreeholder is an application.It may be assumed that the appellants second appeal in the High Court is an application within the meaning of cl. 5 of Art. 182. But this does number companyclusion the matter in favour of the appellant. He has to show that the High Court is the proper companyrt. Proper Court is defined in Explanation It to Art. 182, is the companyrt whose duty it is to execute the decree. Ordinarily, the High Court with number be the proper companyrt as so defined, because it is numbermally number the duty of the High Court to execute a decree. According to s.38 Civil Procedure Code a decree may be executed either by the companyrt which passed it or by the companyrt to which it is sent for execution. So the proper companyrt would be the companyrt which passed the foreclosure decree in favour of the appellant. The appellant can derive numberassistance from Annamalai supra . In that case the decreeholder had made an application for execution of his decree in the proper companyrt. The judgmentdebtor filed an objection. It was allowed. Then the decreeholder filed an appeal in the High Court. The appeal was dismissed. The Privy Council held that the time for making the execution application ran from the order of the High Court. Repelling the argument of the judgment-debtor that the High Court was number the proper companyrt, the Privy Council said Under s. 187 of the Code of Civil Procedure an appeal companyrt has the same powers as are companyferred and imposed by the Code on companyrts of original jurisdiction. Where an application for execution is dismissed by the lower companyrt, the appeal companyrt is the proper, and indeed, the only, companyrt which can then execute the decree. No doubt in practice a High Court does number itself generally execute the decree of lower companyrts numbermally it remands the case to the lower companyrt with directions to, execute according to law on the basis 1 72 Indian Appeals 296. of the High Courts decision but in a proper case the High Court would numberdoubt execute the decree or order itself. emphasis added It is clear from this passage especially from the words shown in emphasis that the Privy Council regarded the High Court as the proper companyrt on account of the fact that the decreeholder had applied for execution of his decree in the proper companyrt. It was held that the appeal companyrt entertaining an appeal from the order of the executions companyrt is the proper companyrt. Such is number the case before us. It may be pointed out here that in the companyrts below the appellant did number place reliance on Art. 182 for saying limitation. So there is numberfinding by the companyrt below on the point as to whether Prakash Chandras suit was instituted in the companyrt which companyld execute the final foreclosure decree of the appellant. The record before us does number unambiguously make out that the suit was instituted in the companyrt which companyld execute the said decree. The foreclosure decree was passed by the Civil Judge, Class 11, Balaghat. It appears from the plaint in Prakash Chandras suit that the suit was instituted in the companyrt of the First Additional Civil Judge, Balaghat attached to the Second Civil Judge, Balaghat. But the judgment of the appeal companyrt in Prakash Chandras first appeal indicates that the suit was instituted in the companyrt of the First Additional Civil Judge, Balaghat attached to the companyrt of the First Civil Judge, Balaghat. So it is number certain whether Prakash Chandras suit was instituted in the companyrt which companyld execute the final foreclosure decree of the appellant. But even if it is assumed that the suit was instituted in the companyrt which companyld execute the said decree, we are unable to hold that the appellants second appeal to the High Court arose out of an application made to the proper companyrt because his written statement in the suit was number an application made to the proper companyrt. So the appellant cannot get the benefit of cl. 5 of Art. 182. The Allahabad and Bombay High Courts have taken the view that time would run from the date of the appellate order. Baldeo Singh v. Ram Swarup 1 and Joshi Laxmiram Lallubhai Mehta Balashankar Veniram 2 . In Baldeo Singh supra an application for execution was made by Baldeo Singh, who was the assignee of the decreeholder an July 15, 1916. About a year earlier, the property against which the decree was to be executed had been sold to Ram Swarup and Jai Dayal in execution of a simple money decree. Ram Swarup and Jai Dayal instituted a suit for a declaration that the property purchased by them was number saleable in execution of the decree by the assignee, Baldeo Singh. They also claimed an alternative relief that they were entitled to a prior charge of nearly Rs. 2,000/- on the property. While this suit was pending, the assignees application for execution was dismissed. Thereafter the suit was decreed in respect of the alternative relief only. Baldeo Singh filed an appeal from the decree. The appeal companyrt allowed the appeal and dismissed the suit on March 19, 1918Baldeo Singh then filed an application for execution on September 30,. A.I.R. 1921 All. 174. I.L.R. 39 Bombay, 20. 1919. It was made three years after the dismissal of the previous application. The execution companyrt dismissed the application as timebarred. The first appeal companyrt upheld the order of the execution companyrt. on appeal, the High Court held that the application or execution was made within time. On,.- of the reasons given by the High Court in support of its view was that the appeal filed by the assigned was at step-in-aid of execution. The High Court said There is another aspect of the case from which also this application would be within time. The suit, as we have stated above, was for two reliefs 1 that the property was number saleable and 2 the alternative relief was that the property was subject to a prior encumbrance. On the 18th of July 1917, the Court gave the then plaintiffs the second relief claimed by them, namely, that they companyld put up their prior charge of nearly Rs. 2,000/- as a shield against any person who got the property in execution. In order to remove this difficulty in the way of the execution of his decree unconditionally the decreeholder appealed successfully. The decree of the 19th March, 1918 would go to show that this appeal must have been filed within 3 years of the present application for execution and this must be companysidered to be a step-in-aid of execution. as by it the decreeholder wanted to remove certain difficulties which stood in the way of his getting the full benefit of his decree. From this ,view also the present application is within time. It may be observed that the High Court did number companysider at all the question whether the appeal was an application made to the proper companyrt as defined in Explanation 11 of Art. 182. In Laxminarayan Lallubhai supra the judgment-debtor applied to have himself declared an insolvent. In the circumstances, the decreecholder companyld number have the judgment debtor arrested in execution of his decree if he was declared an insolvent, and companysequently he opposed the application and when that was unsuccessful he appealed against the order declaring him insolvent. It was companytended that if s.15 of the new Limitation Act of 1908 be held inapplicable, his opposition to the insolvency of the judgment debtor should be regarded as a step-in-aid of the execution of the decree under Art. 179 of the old Limitation Act, 1877,corresponding to Art.182of the Limitation Act,1908. Beamon, J., speaking for the Division Bench, found some difficulty in bringing such an application application opposing the application for insolvency within the meaning of the words application to take some stepin-aid of executionunder Art. 179 old , number Art. 182 of the Limitation Act. But when the result of the proceedings went against him, the creditor appellant appealed to the District Court and succeeded. Advertins to this aspect, the learned Judge said We think that it is number putting too great a strain upon ordinary language to say that an appeal in such circumstances. fairly false within the meaning of the words an application to take a step-in-aid of execution. It is clear that as long as the insolvency proceedings went in favour of the debtor, the creditor companyld number have presented any application in ordinary companyrse for the further execution of his decree with the least hope of success. The appellant had numberother companyrse open to him, if the debtor was declared insolvent, than in the first instance to get this bar to the further execution of his decree removed. And the only way in which he companyld hope to obtain that result would be by first opposing the in solvency petition in the first Court and if he failed thereby appealing to the higher companyrt. While so holding, the learned Judge struck a numbere of caution Adopting that view, it is unnecessary to enter into any of the other nice and difficult questions which have been raised and adequately argued in the companyrse of this appeal. We do number seek to lay down any general principle upon any of those questions, but we desire to companyfine our judgment to the rather unusual facts before us, and we think that we do number violence to the meaning of Article 179 old , number Article 182, by holding that the present darklast is within three years of the last application made by the judgment-creditor to a Court to take some step-in-aid of the execution of his decree. This case neither companysidered whether the application opposing the insolvency was an application, number whether the Insolvency Court was the proper companyrt, within the meaning of cl. 5 of Art. 182 of the Limitation Act. On the other hand the Madras High Court in Chatnangali Rarichan v. Puvvanparambath Kunhamu 1 held that an application to the Insolvency Court for leave to execute the decree against the insolvent is number an application made to aproper companyrt, because it is entirely a creature of the Provincial Insolvency Act and is therefore a different Court to the Court which is to execute a decree obtained independently of the Insolvency Act. The mete fact that the Presiding Officer of the Insolvency Court and the Court executing the decree is the same person will number make the application to the Insolvency Court as one to the Court entitled to execute the decree. Laxmiram Lalubhais case and the observations cited by us were companysidered and it was pointed out that explanation II to Art. 182 which defines what is the proper companyrt was number at all alluded to in the judgment. It is number necessary to refer to other decisions because in our view the period spent in taking a step in aid can be excluded only if the Court in which the step is taken is a proper companyrt., The facts in C. P. Syndicate Ltd. Nagpur v. Firm Hasanali Abdul Ali 2 and Rajendra Prasad v. Indrasan Prasad are similar to the facts in Annamalai supra . In the first of the cases, it was an appeal from an order of the executing Court dismissing an objection to the execution. To the second of them, also, the appeal which was companysidered to be an application to take a step in aid was one against an order of the executing companyrt. Both these cases relied on the decision of the Privy Council in Annamalai supra . As we have held that the appellants appeal in the High Court was number an application to the proper companyrt it is unnecessary to decide whether in the suit and in the appeal filed by Prakash Chandra the I.L.R. 57 Madras 808. 2 A.I.R. 1959 M.D. 288 FB . A.I.R. 1954 Patna 46 written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him. Regarding argument No. 3 An application may be said to be one seeking to companytinue or to revive the previous execution application if 1 it is in the eye of law still pending or has been dismissed for numberfault of the decreeholder and 2 if the two applications are in substance similar in scope and character. Where the previous application for execution has been properly and finally disposed of by the execution companyrt, the subsequent application cannot be said to be in companytinuation of it or to be a revival application. See Vadlamannati Bala Tripura Sundaramma v. Abdul Khader 1 . In the present case the previous application the fourth application for execution was dismissed on June 23, 1956. The execution companyrt made this order Decreeholder in person judgment-debtor absent. Process fee number paid. Dismissed as wholly infructuous. It appears from the judgment of the appeal companyrt, dated November 28, 1956, that the execution companyrt had dismissed the execution application on June 23, 1956 as the appellant had failed to pay process fee for the warrant of possession. It is plain from these orders that the previous execution application was number kept pending. On the companytrary, it was dismissed on account of the appellants failure to pay process fee for the warrant of possession. Accordingly the last application for execution made on July 28, 1964 was number an application for companytinuing or reviving the previous application made on November 28, 1956. Counsel for the appellant has relied on Prem Narain v. Ganga Ram, 2 Hira Lal v,. Punjab National Bank 3 Kotta Annaprurnanma v. Makku Venkamma, 4 Kalliappa Goundan v. Kandaswami Goundan 5 and Chmnammal v. Chennappa Goundan. 6 In the first case the decreeholder and the judgment debtor companypromised and agreed that the latter should be given three months time for payment of the decretal sum and that if he failed to pay within the said period the execution should proceed. The companyrt then ordead The execution case be struck off for the present. The judgment debtor did number pay the amount within the agreed period. Then the decreeholder filed an application for execution On the judgment debtors objection that it was time-barred, the Allahabad High Court held that the application was one to revive the execution proceedings. The facts of the case are plainly distinguishable from the facts of the case before us. The execution application was number finally disposed of and, in any case, the decree holder was number at fault. In the second case, the decreeholder had applied for execution by attachment and sale of certain property. One Kanshi Ram filed an objection that he had a lien on it. The objection was allowed and A.I.R. 1933 Madras 418. A.I.R. 1935 Lahore 911. A.I.R. 1938 Mad. 498. A.I.R. 1931 All. 458. A.I.R. 1938 Mad. 323. A.I.R. 1958 Mad. 21. the proceedings in execution were stayed because the decreeholder had instituted a suit under Order XXI, r.63 Code of Civil Procedure and did number wish to proceed with the execution till the decision of the suit. The suit was decreed, but a little before that the application for execution was dismissed in default of the decreeholder and the attached property was released. The subsequent application was made to revive the previous application and to sell the property which had already been attached after the decision of the suit. In the meanwhile Kanshi Ram preferred an appeal to the High Court. So the execution companyrt directed that the application be filed for the present. They can be restored when appeals in the High Court are decided. When the appeals were dismissed, the decreeholder applied for the sale of the property which had already been attached. The judgment debtor then objected on the score of limitation. The Lahore High Court held that the subsequent application was one to revive the previous application which was dismissed in default . It is true that the previous application was finally disposed of and that too for default of the decreeholder, but it may be recalled that at the request of the decreeholder the execution companyrt had stayed the execution proceedings until the decision of the question of Kanshi Rams lien. The companyrt therefore companyld number dismiss the execution application for default of the decreeholder before the decision of his suit under Order XXI r.63 Code of Civil Procedure. As the order of the companyrt was number companyrect, the application was deemed to be pending. Thus understood, the decision would number be helpful to the appellant. The third and fourth cases have numberhing to do with the question of revival of an execution application. In the last case the execution application was ordered to be dismissed. More than three years thereafter the decreeholder made another application. The judgment-debtor objected on the ground of limitation. His objection was overruled. A learned Single Judge of the Madras High Court held that on the facts and circumstances of the case, as companystrued by him, the previous application was really pending and that the subsequent application fell under cl.5 of Art. 182. On the facts as companystrued by him the case becomes distinguishable from the facts of the present case. We should, however, make it clear that we should number be understood to have given our approval to the decision. Counsel for the appellant has submitted that it is a hard cast for the decreeholder, for he is losing even half the share in the disputed house. That is so, but the blame lies squarely on him. He companyld have executed his decree with respect to the half share in the house after the decision of the appeal companyrt. But he did number avail of the opportunity and waited for the decision of the High Court in the appeal and cross-objection filed by Prakash Chandra. He was number vigilant and should suffer the companysequences. As a result of the foregoing discussion, we are of opinion that the High Court rightly dismissed the fifth application as time barred. So we dismiss the appeal. But in the circumstances of this case parties shall bear their own companyts. 4-M 45 Sup CI/75 GOSWAMI, J. The interesting and important question which is raised in this appeal with special leave is whether the present application for execution, the fifth of its kind in this case, is barred by imitation under article 182 of the Limitation Act, 1908. In order to appreciate the above question of law, a brief reference to the history of the litigation is necessary. One Kariya and his wife Sava purchased the suit property, which is a house, by a registered sale deed of 20th April, 1905. Kariya died in 1936 leaving behind his widow, Sava and their son Ram Charan, the present respondent. Ram Charan alone executed a registered mortgage deed of the entire suit property on 16th August, 1951, in favour of Prem Raj, the present appellant. Prem Raj instituted a civil suit No. 27A of 1952 on the basis of the mortgage deed and obtained a preliminary decree for foreclosure on 16th August, 1952 and also the final decree on 16th July, 1953. Sava, the mother of Ram Charan, on the other hand, had executed a registered deed of gift of the suit property on 7th March, 1952, in favour of Prakash Chandra, son of Ram Charan, the respondent. Basing his claim on this deed of gift, Prakash Chandra, then a minor, by his fathers sister, as next friend, filed a civil suit on December 7, 1956, being No. 75A of 1957 impleading the present appellant as the 1st defendant and his father, Ram Charan, as the 2nd defendant. Prakash Chandra claimed to be the sole owner of the suit property and described his father Ram Charan as a gambler and drunkard in the plaint in that suit. He prayed in the suit for declaration that the preliminary and the final decree for foreclosure of 16th August, 1952 and 16th July, 1953, respectively in the civil suit No. 217A of 1952 were number binding on him and that Prem Raj, the 1st defendant therein, be restrained through a perpetual injunction from taking possession of the house in dispute in execution of the aforesaid decree. This suit was dismissed on 25th November, 1958. Prakash Chandra lodged an appeal against that judgment and decree and obtained stay of the execution of the aforesaid foreclosure decree in suit No. 27A of 1952 on 31st December, 1958. His appeal No. 37A of 1959 was partly allowed by the First Additional District Judge, Chandwara, reversing the earlier decree of 25th November, 1958 and declaring that Prakash Chandra was entitled to the half share in the suit property. The decree was, inter alia, in the following form-- it is ordered and declared that the decrees in Civil Suit No. 27-A of 1952 of the Court of Civil Judge, Clas II. Balaghat, are number binding on the plaintiff to the extent of half share in the house in suit and it is further ordered and decreed that the defendant No. 1 is hereby restrained from taking possession of plaintiff,, half joint share in the house in suit in execution of his aforesaid decrees. Prem Raj being dissatisfied with the judgment and decree lodged a second appeal No. 107 of 1960 in the High Court of Madhya Pradesh. Prakash Chandra also filed a cross objection with regard to his claim for the other half of the suit property. Both the appeal and the cross objection were dismissed by the High Court on 1st January,1962. Thus being free from the above mentioned litigation, the appellant, Prem Raj, filed his fifth execution application on July 28, 1964, in the Court of the Civil Judge, Class 11, Balaghat, praying for joint possession of the half of the house to be delivered from the judgment debtor along with the half joint possession of Prakash son of Ram Charan Gadhewal. Since this is the fifth application for execution, let us look in retrospect to the four other execution applications filed early by the appellant as decree-holder. These may be given seriatim as under - 27-7-1953The appellant filed the first execution application for obtaining possession of the suit house in execution of the final foreclosure decree in civil suit No. 27A of 1952. 8-10-1953The appellant was unable to obtain possession and the execution application was companysigned to the records. 31-10-1953The second execution application was filled by the appellant for possession of the suit house. 6-8-1954 The second execution application was also companysigned to the records as he was unable to obtain possession. 30-8-1954A third execution application was filed by the appellant for possession of the house. 11-1-1955The third execution application was also companysigned to the records as the appellant was unable to obtain possession of tile suit house. 25-4-1956The appellant filed his fourth execution application for possession of the suit house and also filed all application for police aid as he made several attempts in his previous execution applications to obtain possession of the suit house but lie was obstructed by the respondent and his relations and that it was number possible to obtain possession of the suit house in execution without police aid. 4-5-1956 The application of the appellant for police aid was rejected by the executing companyrt and it was ordered that an attempt should be made again to obtain possession without the police aid. 23-6-1956The executing companyrt dismissed the fourth execution application of the appellant as wholly infructuous as the appellant companysidered it companypletely useless to obtain and execute a fresh warrant of possession again without police aid and so did number pay process fee and instead filed an appeal in the District Court against the Order of the executing companyrt. 28-11-1956 The appeal of the appellant against the order of the executing companyrt refusing police aid was dismissed as the said order was number appealable and the execution case was companysigned to the records. Reference has already been made to the civil suit No. 75A of 1957 filed by Prakash Chandra on December 7, 1956, which resulted ultimately in his partial success entitling him to half of the suit property, the whole of which was the subject matter of the foreclosure decree in suit No. 27A of 1952. To revert to the present execution case out of which this appeal has arisen, the respondent objected to the aforesaid fifth and last execution application on the ground of the same being barred under article 182 of the Limitation Act 1908 his objection was dismissed by the executing companyrt as well as by the Additional District Judge in appeal. The respondent then filed a Miscellaneous Second Appeal No. 134 of 1966 in the Madhya Pradesh. High Court against the judgment of the Additional District Judge, Balaghat. The High Court on 2nd March 1967 accepted the respondents appeal and set aside the orders of the companyrts below and held that the execution application of the appellant was barred by time and should be dismissed. The appellants application fir leave to appeal to a Division Bench under the Letters Patent was rejected by the learned Single Judge. Hence this appeal with special leave. The question in this appeal is whether the appellant decree-holder is entitled to exclude the period companyered by the suit filed by Prakash Chandra upto 1st January, 1962 on which date the High Court dismissed the appellants, second appeal as well as the respondents crossobjection arising out of that suit. To put it differently whether the appellants filing of the written statement in Prakash Chandras suit and his resistance to his appeal which resulted in partial mutilation of his foreclosure decree and lastly his memorandum of appeal before the High Court against the decree-are a series of steps in aid of execution of his foreclosure which has been passing through vicissitudes of success and failure in the companyrse of litigation. Mr. Lokur, learned companynsel for the respondent, submits that section 15 of the Limitation Act would number companye to the aid of the decreeholder since there was numberstay of execution of the decree by any companyrt after disposal of the appeal by the First Additional District Judge on 21st October, 1959. There was, therefore, numberimpediment in the way of the appellant executing the decree thereafter, says Mr. Lokur. With regard to the further companytention of Mr Sharma, learned companynsel for the appellant, Mr. Lokur submits that article 182 2 will number apply as the appeal was number directed against the original foreclosure decree which was sought to be executed. In this appeal Mr. Sharma companycentrates upon two submissions. Firstly, according to him, the present case is fully companyered by article 182 5 as the appellants resistance to the suit of the judgment-debtors son in civil suit No. 75A of 1957, thereafter to the civil appeal arising out of it and later himself prosecuting a second appeal in the same matter to defend his foreclosure decree in suit No. 27A of 1952 are all directed to remove an obstacle in the way of the execution of the original foreclosure decree and hence the same are steps in aid of execution of the original decree under article 182 5 and saves running of limitation. The learned companynsel, therefore, submits that the fifth execution application of 28th July, 1964, being filed within three years of 1st January, 1962, on which date the High Court finally dismissed the appellants second appeal and the respondents cross objection, is within time. Alternatively the companynsel submits that the fifth execution application is number a fresh application but a revival of his fourth application of 25th April, 1956 and there is, therefore, numberquestion of the same being barred by limitation in this case. It is number necessary to take up the appellants submission on the score of article 182 5 of the Limitation Act. It will be appropriate, therefore, to quote the same Description of Application. Period of Time from which period Limitation. begins to run. For the execution of a Three Years X X decree or order of any Civil Court number provided for by art. 133 or by s.48 of thenex there in aftermen Code of Civil Procedure, 1908. Where the application next hereinafter mentioned has been made the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or In the present appeal what is material is the second branch of article 182 5 in the third companyumn, namely, to take some step in aid of execution of the decree. The learned companynsel on both sides submit that there is numberdirect authority of this Court on the point although a large number of decisions from the High Courts disclosing a cleavage of opinion and a few decisions from the Privy Council were cited at the bar in order to throw light on the subject from the respective points of view of companynsel. As early as 1932, the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and others 1 , while dealing with the expression whether there has been an appeal under companyumn 3 of article 182 2 , and numbering the difference of opinion among the authorities in India on the subject observed as follows The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. A.I.R. 1932 Privy Council 165/167. But in companystruing such provisions equitable companysiderations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall number be companypelled to pursue the so often thorny path of execution which, if the final result is against them may lead to numberadvantage. Nor in such a case as this is the judgment debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is numberhing to prevent his paying what he owes into Court. Again in V. E. A. Annamalai Chettiarv. Valliammai Achiand Another 1 , the Privy Council dealing with article 182 5 of the Limitation Act left the matter open observing as follows- There has been some difference of opinion in the Courts in India as to what amounts to taking a step in aid of execution and the judgment under appeal discusses various decisions, including a decision of the High Court of Madras in Kuppaswami Chettiar v. Rajagopala Aiyer 2 , in which it was held that there companyld number be a step in aid of execution if there was number an application for execution then pending, and another decision of the same companyrt in Krishna Patter v. Seetharama Patter 3 , in which it was held that a step in aid of execution must be one in furtherance of execution and number merely one seeking to remove an obstruction to possible future execution. Their Lordships do number find it necessary to express any opinion on these questions, since in the present case there was at all material times an application for execution pending The expression step in aid of execution is number defined in the Limitation Act number is it capable of a precise or exhaustive definition. It will have to be companystrued in the light of the facts and circumstances in each case and the present case is indeed a peculiar one with litigation raised on two fronts, the parties with diametrically opposite avowed objects one namely, the appellant to execute and reap the fruit of the foreclosure decree and the other namely, the respondent judgment-debtors son seeking the assistance of the companyrt to companypletely nullify the very decree in order to maintain his title to and possession of the suit property. In the above companytext, can the successive steps taken by the appellant in resisting the respondent sons claim in the latters suit and the formers other companysequent actions thereafter in the original companyrt, appellate companyrt and lastly in the High Court, be companystrued as steps in aid of execution of the foreclosure decree. It is strenuously companytended by the respondent that all these steps are in companynection with another suit and number with the original suit out of which the present execution petition was filed. Both sides referred to a decision of this 1 72 Indian Appeals 296/303. 2 1922 I.L.R., 45 M. 466. 3 1926 I.L,R., 50 M 49. Court in Bhawanipore Banking Corporation Ltd. v. Gouri Shanker Sharma 1 , which however, was a case under article 182 2 of the Limitation Act and referred to the following passage at page 29 of the decision- It was also suggested by the learned companynsel for the appellant that the case might be held to be companyered by clause 2 of article 182 on the ground that, even though numberappeal was preferred from the final mortgage decree, the words where there has been an appeal are companyprehensive enough to include in this case the appeal from the order dismissing the application under order IX, Rule 9, of the Civil Procedure Code, made in companynection with the proceedings under section 36 of the Moneylenders Act. This argument also is a highly far-fetched one, because the expression where there has been an appeal must be read with the words in companyumn of article 182, viz., for the execution of a decree or order of any civil Court and, however, broadly we may companystrue it, it cannot be held to companyer an appeal from an order which is passed in a companylateral proceeding or which has numberdirect or immediate companynection with the decree under execution. The learned companynsel for the appellant seeks to derive great support from the words which has numberdirect or immediate companynection with the decree under execution in the above excerpt. It is apparent that the facts of the case before this Court in the above decision are clearly distinguishable and there was numberdirect companynection between the application etc. for revival of a companylateral proceeding under, order 9 rule 9 and the original decree sought to be executed. On the companytary if it is possible to find in a suit or a proceeding a direct and immediate companynection with the original decree, the result where of will be or even likely to be affected be the particular suit or proceeding, the matter may be entirely different. What is then the exact legal position on the facts and circumstances of the persent executing case vis-a-vis the suit of Prakash Chandra which mutilated the foreclosure decree to the extent of depriving the appellant from executing in respect of half of the suit property earlier decreed in his favour? Would the appellant execute or even reasonably be expected to execute his whole decree while his right to do so has already been under challenge or in a jeopardy in a civil suit? Would the appellant be expected to have a sort of clairvoyance or prescience about the result of the suit which he is defending and, therefore, execute the decree companyfidently and seek to recover the property without the least risk of any future litigation? In a legal adventure of this type multiplicity of litigation and self created companyplications in case of an ultimate failure in the suit, may be writ large in the nature of things. Would he still tread on the thorny path of execution? In the face of ambiguity or doubt, for long, recognised in companyrts, if a beneficient companystruction to the words step in aid of execution in article 182 5 of the Limitation Act companyld be given, it will be only giving effect to the law and number to equity which is out of bounds in limitation. 1 1950 S.C.R. 25. It may be clearly numbered that there is numbercontroversy between the parties in this appeal with regard to the proper companyrt for execution within the meaning of the second explanation of article 182 5 of the Limitation Act. It stands to reason, therefore, that numberargument was advanced by the parties companynsel on this score. The only companytroversy is with regard to the benefit of the time companysumed in the entire litigation companymenced in civil suit No. 75A of 1975 and the companysequent appeals thereafter. It will be, therefore, difficult to visit the appellant with an evil companysequence without affording him an opportunity to meet such a possible objection which even lacks certainty and definiteness on the records of this appeal. Some of the High Courts seems to lean towards a fair and liberal interpretation in favour of the decree-holder in the companystruction of articlel82 5 in respect of what is step in and of execution of a decree See Rudra Narainand others v. Maharaja oKapurthala 1 Kotta Annapuranamma v.Makku Venkamma 2 Panna Lal v. Smt. Saraswati Devi 3 and Uma Shankar Mehrotra v. Kanodia Brothers, Kanpur and another 4 .It is number possible to read these decisions as judicial exercise to give effect to equity superimposed upon law. The respondents companynsel on the other hand draws our attention to the strict companystruction of section 15 of the Limitation Act, which is, however, number relied upon by the appellant, in A. S. Krishnappa Chetliar Ors. v. Nachiappa Chettiar Ors. 5 and relies upon the following passage. The question is whether there is any wellrecognised principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in prusuance of his rights. The Limitation Act is a companysolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to companyrts and must, therefore, be regarded as an exhaustive companye. It is a piece of adjective or procedural law and number of substantive law. Rules of procedures, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressely or by necessary implication. The learned companynsel for the respondent further relies upon another decision of this Court in Sirajul Haq Khan Others The Sunni Central Board of Wakf U.P. and Other 6 and lays stress on the following passage Section 15 provides for the exclusion of time during which proceedings are suspended and it lays down that in companyputing the period of Limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by an injuction or order, the time of the companytinuance of the injunction or order, the day on which it was issued AIR 1936 Oudh 248. AIR 1960 Allahabad 572. 5 1964 2 S.C.R. 241/253-54 AIR 1938 Madras 323. AIR 1966 Allahabad 409. 6 1959 S.C.R. 1287/1301-1302. or made and the day on which it was withdrawn, shall be excluded. It is plain that, for exuding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases failing under s. 15, the party instituting the suit would by such institution be in companytempt of companyrt. This Court, however, also observed in the same decision as follows.- Whether the requirements of s. 15 would be satisfied by the production of an order or an injunction which by necessary implication stays the institution or the suit is open to argument. We are however, prepared to assume in the present case that s.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. The respondent, as already mentioned, has referred to Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma supra and submits that the subsequent suit has numberdirect or immediate companynection with the decree under execution and we will deal with this aspect at the appropriate place. The respondent relies upon a decision of the Bombay High Court in Somshikharswami Shidlingswamiv. Shivappa Mallappa Hosmaani and Others 1 , which, according to the learned companynsel, runs on all fours with the present case. This was, however, a case where the High Court was companysidering the pleas of sections 14 and 15 of the Limitation Act raised by the decreeholder to save running of time. The High Court held section 15 out of the way as there was numberorder of stay or injunction in any of the suits filedby the judgmentdebtor preventing the decreeholder from executing his decree. With regard to the plea of section 14 2 of the Limitation Act, the High Court held that the decree-holder was number prosecuting any case but was only defending the same and it was difficult to say that the Court was unable to entertain the proceeding form defect of jurisdiction or other cause of alike nature. Adverting to the unholy type of tenacious litigation of the judgment debtor in that case the High Court, being unable to apply the provisions of sections 14 and 15 of the Act, pithily and rather ruefully, observed as follows It is numberdoubt unfortunate that the plaintiff finds his remedy thus barred in a matter in which he has been asserting his right to this property for the last ten years and more Ina case of this kind it may be desirable that the plaintiff ought to be in a position the deduct the time taken up in defending a litigation of the nature such as we have in the present case. But as we are unable to bring the case within the provisions of the Limitation Act, the plaintiffs appeal must fail. AIR 1924 Bombay 39/4041. It may at once be pointed out that there is numberreference in the above decision to article 182 5 of the Limitation Act and necessarily there was numberdiscussion of the provision in favour of the decree-holder who sought to execute the decree. This decision is, therefore,. of numberavail to the respondent on the legal aspect with which we are companycerned in this appeal. At the best it companyld be advanced as an implied authority, in the circumstances of that case, for the proposition that a written statement or defence in a suit is number to be treated as an application in aid of execution. But we find an observation of this Court in Madan lal v. Sunder lal and another, 1 while dealing with section 30 of the Arbitration Act, to the following effect- It may be companyceded that there is numberspecial form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. There is numberdifficulty in holding that in an appropriate case, a written statement defending a particular suit or memorandum of appeal in prosecuting a particular appeal or resisting it may be treated as an application being a step in aid of execution under certain definite and positive circumstances, although numbergeneral rule can be laid down in this behalf. The respondent also relied upon a decision of the Madras High Court Full Bench in Vadl amannati Bala Tripura Sunderamma v. Abdul Khader, 2 in which section 15 of the Act was pressed into service and the High Court repelled the plea and also refused to treat the subsequent barred application as one of revival of the old application dismissed for number-payment of batta by the decree-holder. Article 182 5 did number companye up for companysideration in that case. The Madras Full Bench decision supra approved of the decision in Satyanarayana Brahmom v. Seethayya 3 and observed as follows - In regard to the institution of suits, number the execution of decrees, it is held in Satyanarayana Brahmam v. Seethayya 3 that numberequitable grounds for the suspension of a cause of action can be added to the provisions of the Limitation Act and a decree cancelling a promissory numbere as fraudulent is numberstay of a suit upon the numbere emphasis supplied . In Muthu Korakkai Chetty v. Madar Ammal, 4 Sadasiva Ayyar, J., observed as follows A person is number bound to bring an unnecessary suit or to make futile and unnecessary applications during the companyrse of other litigation proceedings for the settlement of the same right Sundaram Chetty, J., also observed as follows in the same decision 1 1967 3 S.C.R. 1471151. AIR 1933 Madras 418/419/421. AIR 1927 Madras 597. AIR 1920 Madras 1-43 Madras 185 F3 . it may be companytended with some show of reason that even in the absence of an injunction restraining the sale of the properties in execution of the mortgage decree in O.S. No. 29 of 1918, the declaration of the invalidity of that mortgage would be an obstacle to pursue the execution of the mortgage decree by seeking to sell the mortgaged properties. I am number however dealing with that point. This, however, does number mean that a rule with statutory force can be laid down by the companyrt superimposing upon the provision of the Limitation Act. The question in the present case, therefore, must rest upon the proper companystruction of article 182 5 without superadding anything to the law and whether the Court will be prepared to give a beneficient companystruction to the words step in aid of execution. The respondents companynsel relied upon Govinda Bhatta v. Krishna Bhiatta, 1 which, however, cannot companye to his aid as will appear from the following extract therefrom It is,therefore, number possible for us to accept the companytention of the decree-holder that his right to execute the decree had been in any manner affected much less extinguished, by reason of the finding companytained in Ext. A- 3 judgment. The respondent also relied upon Raghunandun Parshad and Another v. Bhuggo Lall 2 , dealing with article 179 of the old Limitation Act, 1877, companyresponding to article 182 s , but the following observation at page 271 would clearly show that the case is distinguishable on facts- It is clear that the decree-holders companyld, numberwithstanding the order in the claim case, have prosecuted their application for execution against the one-third share which was number released then quite as well as they can do so number. Their present application is for the sale of that third share of the property there was numberbar then to their enforcing the execution of the decree, and there has been numbersubsequent removal of that bar. The respondents companynsel further relied upon Surisetti Ramasubbayya v. Palur Thimmiah and others 3 wherein it was held that the plaint in the declaratory suit under 0 21, r. 63 cannot be treated as an application under article 182 5 number is it a step in aid of execution. Even in the above case the High Court observed at page 11 as follows- It may be companyceded that the plaint was filed by the decreeholder with the object of getting rid of the finding of the executing companyrt which was to the effect that the property was number liable to be proceeded against in execution of his decree and that this may be therefore regarded as a step-in-aid of execution. AIR 1968 Kerala FB 250/252. 2 1890 I.L.R., 17 Culcutta 268/271. AIR 1942 Madras 5111. The respondents companynsel also referred to Katragadda Ramayya and another v. Kolli Negaswararao and others 1 which however, was number required to deal with this particular aspect of the matter before us under article 182 5 . Even in Narayan Jivangouda Patil and another v. Puttabai and others 2 at page 8 the Judicial Committee, while dealing with an argument with regard to section 15 of the Limitation Act that the injunction or order to be effective should companytain an express prohibition, observed as follows it is number necessary to companysider that point as their Lordships are satisfied that there is numberprohibition, either express or implied in the injunction or the decree in the present case, which restrains the appellant from instituting a suit for possession. emphasis supplied . After a survey of the various decisions on the subject, it may perhaps be possible to have two views on this aspect of the matter but it is difficult to overlook that certain reservations were made by the Privy Council both in Nagendra Nath Deys case supra as well as in Narayan Jivangouda Patils case supra for an appropriate occasion to companysider whether the intelligible rule referred to in the former and the rule of implication hinted in the latter may number be pressed into service in favour of the decree-holder in companystruing certain relevant provisions of the Limitation Act-thus making the way clear for a fair and liberal interpretation of Art. 182 adverted to in several High Courts decisions. A somewhat apposite decision on the point is available in Joshi Laxmiram Lallubhai and another Mehta Balashankar Veniram, 3 with regard to a step in aid of execution under article 179 of the Limitation Act, 1877 and the successor article 182 of 1908 Act. The Bombay High Court observed therein as follows at page 25 We think that it is number putting too great a strain upon ordinary language to say that an appeal in such circumstances fairly falls within the meaning of the words an application to take a step-in-aid of execution. It is clear that as long as the insolvency proceedings went in favour of the debtor, the creditor companyld number have presented any application in ordinary companyrse for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a companystruction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that numberapplication for the execution of the decree either by, sale of property or arrest, of the person of the judgment-debtor companyld have the least chance of success so long as the judgment debtor had been declared an insolvent under section 351, even although he had number been actually discharged within the meaning of section 357. So that we think that in view of the Courts finding that this judgment-debtor was an insolvent early in AIR 1969 Andhra Pradesh FB 259. AIR 1945 Privy Council 518. 3 1915 L.L.R. , 39 Bombay 20/25. 1906, the present appellant had numberother companyrse open to him than in the first instance to get this bar to the further. execution of his decree removed, and the only way in which he companyld hope to obtain that result would be by first opposing the insolvency petition in the first Court, and if he failed there, by appealing to higher. authority. The principle adverted to in the above passage of the Bombay High Court appears to be companyrect. In that case also, as in the present appeal, there was numbercontroversy about the proper companyrt within the meaning of the 2nd explanation to article 182. Coming number to the facts of the case at hand it is found that the appellant decree-holder was faced with resistance from the respondent judgment debtor and his relations. The appellant, however made abortive attempts to execute the mortgage decree in order to obtain possession of the suit property. Having failed to obtain possession by means of usual civil process, the appellant applied to the companyrt for police aid but the prayer was rejected. Soon after the appellant was dragged to the companyrt by the respondents son in a suit wherein both the appellant and the respondent were parties although the respondent was exports. If the respondents son had succeeded in the suit the entire foreclosure decree would have been a scrap of paper for the appellant. The appellant therefore found in his front a hurdle which must first be crossed before he companyld successfully execute his decree in order to obtain possession of the suit house. No doubt his defence was successful in the trial companyrt but the first appellate companyrt partly accepted the appeal of the judgment-debtors son with reference to half of the share of the suit house and the decree thereafter was numberlonger the original foreclosure decree which he companyld execute. The form of the decree has already been set out above. The decree in the Civil Suit No. 75A of 1957 had thus a direct and immediate companynection with and effect upon the decree in suit No 27A of 1952 sought to be executed. The nexus between the two is manifestly clear. In such circumstances it is obvious that the appellants successive ecphractic action in defending the foreclosure decree in different ways in the companyrse of the lengthy litigation until its final determination in the High Court are all steps in aid of execution, of his foreclosure decree. These steps to remove the impeding executing the foreclosure decree were absolutely incumbent upon the appellant to take the next move in furtherance of the execution of the foreclosure decree to facilitate the same. These being therefore, necessarily steps in aid of execution of the foreclosure decree, the appellants fifth execution application was within time, being within three years from the date of the final order in the High Court on January 1, 1962. It should also be remembered that there was a perpetual injunction restraining the appellant from executing the foreclosure decree in Prakash Chanders appeal No. 37A/59 during the period from 3112-1958 to 21-10-1959. Thereafter and the appeal was partly allowed the perpetual injunction was directed in the decree against half of the suit-house. In other words in the injunction against the decree in suit N. . 27A/52 was never raised fully at any time. It is clear that the original foreclosure decree in the form it was, was number capable of execution and the appellants all attempts in the series of litigation were to restore the said decree to its original form for proper and effective enforcement of the same. The appellant carried this race upto the High Court and having finally stopped there, turned to execute whatever is number left for enforcement. Although directly on the point, the Privy Council in Maharaja Sir Rameshvar Singh Bahadur v. Homeshvar Singh while dealing with articles 181 and 182 of the Limitation Act 1908 laid down a kind of pragmatic principle in the following words They the Privy Council are of opinion that,. in order to make the provision of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July, 1906, under companysideration cannot in their opinion be regarded as being thus capable of execution. In the view thus taken in this appear it is number necessary to decide Whether article 182 4 companyld be invoked in this case on the basis of all implied amendment of the foreclosure decree as a necessary companysequence of decree in the subsequent suit.

The order under appeal was passed on 26-3-1997 in a companyplaint that was filed before the National Consumer Disputes Redressal Commission, New Delhi, in 1993. The order states that the dispute raised by the companyplainant involves companyplicated issues of fact and law, the satisfactory determination of which cannot be made except after elaborate evidence is adduced both oral as well as documentary and detailed arguments are heard, all of which can be properly done only in a regular suit instituted before a civil companyrt. The companyplainant was relegated to the remedy of filing a civil suit. It is in appeal by special leave.

Ratnavel Pandian, J. The petitioner Shivaji Jaising who stands companydemned to death is approaching this Court for modification of the sentence of the death into one of imprisonment for life. A brief resume of the facts is necessary of appreciate the plea of the petitioner. The case of the prosecution is that on 3.8.1980 the petitioner and his younger brother Ram Hari Jaising Babar in furtherance of their companymon intention companymitted triple murder and also attempted to cause the death of three others by causing grievous hurt. On the above allegations both the brothers were jointly tied for offences under Sections 302 read with 34 and 307 read with 34 IPC, in the alternative under Section 326 read with 34 IPC in Sessions Case N. 136/81 on the file of the companyrt of the 3rd Additional Sessions Judge at Solapur. The Trial Court by its judgment dated 28.6.82 found both the appellants guilty of the charges and companyvicted them thereunder and sentenced the petitioner with extreme penalty of law date sentence, but sentenced Ram Hari Jaising Babar to imprisonment for life on all the three companynts. Besides, they were also sentenced to various terms of imprisonment for offences under Sections 307 read with 34 IPC. Feeling aggrieved by the judgment of the Trial Court the companyvicted accused preferred Criminal Appeal No. 498/82. On a reference made by the Sessions Judge under Section 366 of the CrPC, companyfirmation case No. 8/82 was registered. The High Court by its companymon judgment and order dated 30th August, 1983 dismissed the Criminal Appeal No. 498/82 and companyfirmed the death sentence in companyfirmation case No. 8/82. The petitioner and his brother filed S.L.P. Criminal Nos. 620 and 637/84 as against the judgment of he High Court which were dismissed in limine by order of this Court dated 30th April, 1984. Thereafter the petitioner filed a Review Petition No. 245/84. this Court by its interim order dated 14th June, 1984 stayed the execution of the death sentence till the Review Petition was disposed of. The companydemned prisoner Shivaji Jaising Babar sent a mercy petition dated 12.5.84. Thereafter, mother of the petitioner. Smt. Shahuai Jaising Babar submitted a separate mercy petition praying for companymutation of the death sentence passed on the companydemned petitioner which petition was received by the Minister of Home Affairs on 17.7.84. It appears one Subhash Shankar Chauhan of Pune and some others of the village Chopri, District Solapur submitted one other mercy petition dated nil for the companymutation of the death sentence passed on the companydemned prisoner Shivaji Jaising Babar. That petition was received in the Ministry of Home Affairs, New Delhi on 3rd August, 1984. When it was so, on 18th September, 1984 this Court dismissed the Review Petition Criminal No. 245/85. It is numbered from the files produced by the Home Department of the Central Government that the State Government by its letters dated 7th August, 1985, 18th October, 1985, 15th January, 1986 and 16th April, 1986 reminded the Secretary to the Government of India, Ministry of Home Affairs, New Delhi inviting the attention of the Secretary about the pendency of the mercy petition stating that the State Government would be grateful if the orders of the President of India on the companydemned prisoner were companymunicated to the State Government at an early date. It is number in dispute that numberhing had happened till May 1988. The file relating to the disposal of the mercy petition produced by the Ministry of Home Affairs shows that the Home Department put up a numbere to the President of India only on 13.5.1988 and thereafter the President rejected the mercy petition on 10.6.1988. After the dismissal of the mercy petition by the President the date of execution was fixed on 26th August, 1988. Meanwhile, the mother of the companydemned prisoner presented yet another mercy petition dated 24.8.1988 before the President. She also filed a Writ Petition Criminal No. 256/88 with Criminal Miscellaneous Petition No. 3625/86 praying for the stay of the execution before the Supreme Court and this Court by order dated 25lh August, 1988 stayed the execution, but the Writ Petition Crl. No. 356/88 was dismissed by this Court on 21st November 1988. A Review Petition No. 2/90 was filed, but the same was rejected on 10th January, 1990 . While it is so, the companydemned prisoner addressed a letter to the Registrar of the High Court at Bombay praying that the order issued for executing the death sentence imposed on him should be stayed. That letter was companyverted into a Writ Petition and was numbered as Writ Petition Crl No. 914/88 which was dismissed on 17.4.90 by a Division Bench of the High Court. On being aggrieved by the order of the High Court in the above Writ Petition No. 914 90 the petitioner filed SLP Crl No. 1216/90 which SLP was dismissed by an order of this Court dated 27th August, 1990. Now he has filed this Diary No. 1491 of 1991, in which the petitioner has raised several companytentions, one of which being some serious factual mistakes have been companymitted in the judgment of the Bombay High Court in Writ Petition Crl No. 194/ 88, which obviously have misled this Court while disposing SLP No. 1216/90. The Solicitor General representing the Union of India and Mr. A.S. Bhasmc, the learned Counsel for the Maharashtra State arc appearing before us. Mr. B.L. Shelar of Pune, the learned Counsel at the choice of the companydemned prisoner is appearing for the petitioner. We heard all the learned Counsel representing all the parties. The High Court seems to have misdirected itself by wrongly understanding certain salient features which have weighed with the High Court and influenced the said Court to take a decision in dismissing the Writ Petition No 914 of 1988. The factual incorrect statements in the judgment of the High Court in Criminal Writ Petition 914/88 are 1 that the petitioner filed a mercy petition before the President of India in accordance with the provisions of Article 72 of the Constitution of India but the same was turned down by order dated May 12, 1984 2 that the petitioner filed a second mercy petition on July 10,1984 while the mother of the petitioner filed a separate mercy petition on May 12, 1984 and 3 that both these mercy petitions viz. the second mercy petition of the petitioner dated 10th May, 1984 and the mercy petition sent by the mother of the petitioner on May 12, 1984 were dismissed by the President of India by order dated August 19,1988. The relevant portion of the judgment of the High Court which is demonstrably shown as totally and factually incorrect from the entries in the files reads thus The petitioner thereafter filed Mercy Petition before the President of India in accordance with provisions of Article 72 of the Constitution of India but the same was turned down by order dated May 12, 1984. The petitioner filed second Mercy Petition on July 10, 1984 while the mother of the petitioner filed separate Mercy Petition on May 12, 1984. Both these Mercy Petitions were dismissed by the President by order dated August 19, 1988 it is crystal clear that the Supreme Court declined to entertain the plea of the petitioner that the sentence should be reduced because of delay in disposal of second Mercy Petition by the President of India it is number permissible for this Court to re-open the companytroversy as to whether the delay in disposal of second Mercy Petition should entitled the prisoner to claim that the sentence of death should be reduced to one of life imprisonment. In our judgment, it is number possible to grant any relief to the prisoner and the petition must fail. A plain reading of the above order of the High Court clearly shows that the High Court dismissed the Writ Petition mainly on the ground that the first mercy petition filed by the petitioner, has been dismissed and hence the delay caused in the disposal of the second mercy petition has numbersignificance. We have waded through the file submitted by the Ministry of Home Affairs very carefully and found that there was numberearlier mercy petition by the companydemned prisoner and companysequently there was numberquestion of that mercy petition having been turned down on 12.5.84 by the President of India. In fact, the first mercy petition itself was sent by the companydemned prisoner only on 12.5.84 which was dismissed by the President on 10.6.88. Now both the learned Additional Solicitor General as well as Mr. Bhasme admit these serious and grave factual mistakes - quite rightly too. Probably, had the High Court been apprised of these facts that the companydemned prisoner filed only one mercy petition on 12.5.84 and that was rejected on 10.6.88, it might have companymitted the sentence of death into one of life imprisonment following its own judgment in Bhagwan Patilba Palve v. State of Maharashtra 1989 Maharashtra Law Journal 1001. In fact, the file discloses that in view of the similarity of the cases of the petitioner and Palve, the State Government companysidered whether the Governor companyld review his decision already taken on the petitioners mercy petition, but it was found number possible for the Governor to review his earlier decision.

WITH CIVIL APPEAL NOS. 2771-2822 OF 1996 ----------------------------------- Arising out SLP C Nos. 10334/95, 10335/95, 10697-98/95, 11267/95, 11268-70/95, 111318/95, 11319/95, 11321/95, 11322/95, 11340/95, 11655/95, 17898/95, 18047/64/95, 18471/95, 3512/96 CC 3235/95, 3514/96 CC 4093/95, 8077/95, 8297/95, 8305/95, 8446-48/95, 8488/95, 8490/95, 8826/95, 8846/95, 8878/95, 9055/95, 9077/95, 9079/95, 9083/95 9205/95 J U D G M E N T Ramaswamy. J. Leave granted in all the special leave petitions. This batch of appeals by special leave arises from companymon judgment dated November 22, 1994 of the Kerala High Court made in O.P. No.5957 of 1987 and batch. By Section 36 of Finance Act 1978, the Central Excise and Salt Act, 1944 for short, the Excise Act was amended to impose central excise duty on electricity under Item II-E in the Ist Schedule to the Excise Act and fixed 2 paise per kilo watt of electricity unit. Consequently, the Kerala State Electricity Board KSEB was liable to pay excise duty on electricity generated and produced by it. To recoup that loss, the Government of Kerala, exercising its power under Section 3 of the Kerala Essential Articles Control Temporary Powers Act, 1961, issued an order. By clause 4 of the said order, surcharge at the rate of 2.5 paise per unit of electrical energy was levied on all Supplies of electrical energy made by the KSEB either directly or through licensees of Extra High Tension EHT and High Tension HT companysumers. Thereunder, the licensees were allowed to retain 1 of the anount companylected as companylection charges. On October 1, 1984, the Government of India had withdrawn the levy of excise duty on electricity. The Government of Kerala in supersession of its Order dated April 6, 1979 had numberified the State Electricity Supply Kerala State Electricity Board and licensees Area Surcharge Order, 1984 effective from October 1, 1984. Under clause 4 of the said Order all supplies of electrical energy made by KSEB either directly or through licensees, were liable to surcharge at the rate fixed at 2.5 paise per unit. In the explanatory numbere it was stated that though excise duty was discontinued, the State Government desired to companytinue the levy of surcharge. The EHT and HT companysumers had filed writ petitions challenging the validity of the 1984 Order. Pending writ petitions, on August 1, 1988, the State Government discontinued the levy of surcharge with effect from that date by issuing an Ordinance called the Kerala Electricity Duty Amendment Ordinance, 1988 which later on became an enactment. The rate of electricity duty was 30 of the price of energy. Later, it was revised to 10 paise per unit for HT companysumers and 6.5 paise per unit for EHT companysumers. After a representation was made through the Association of the HT and EHT companysumers, the Government of Kerala decided to discontinue the surcharge on the electricity duty of 10 paise per unit. On September 27, 1988, a Division Bench of the High Court in Chakolas Spinning Weaving Mills Ltd. v. K.S.E. Board 1988 2 KLT 680 held that the levy of surcharge is in substance a companypulsory exaction intended to enrich the companyfers of the State and in effect partakes the character of a tax on electricity. The Government, acting as a delegate under the Kerala Essential Articles Control Act, 1986 Act 16 of 1986, is number companypetent to impose any tax. A writ of mandamus was issued directing refund of excise duty companylected from those writ petitioners before the High Court. The Kerala State Electricity Supply Kerala State Electricity Board add Licensees Area Surcharge Order, 1984 was declared ultra vires the power of the State Government. The said judgment was companyfirmed by this Court dismissing the Special Leave Petitions in limine. At this stage, it may be necessary to mention that the Essential Articles Control Act, 1963 was amended and Act 13 of 1988 was enacted. It is also relevant to numbere that exercising the power under Entry 53 of List II of the Seventh Schedule, the Kerala State legislature had enacted Kerala Electricity Duty Act, 1963 and Rules were made to levy electricity duty at varying rates. Orders were passed by this Court on April 13, 1989 dismissing the SLP C Nos.4256-66 of 1989. The Governor of Kerala, exercising power under Article 213 of the Constitution issued Ordinance called the Kerala Electricity Surcharge Levy and Collection Ordinance, 1989 which later on became enactment, viz., Act 22 of 1989 for short, the Act. Under the Act, the appellants are liable to pay 2.5 paise per unit of electrical energy supplied. The appellants challenged the same by filing the writ petitions. The High Court upheld the validity of the Act and the Order. Thus these appeals by special leave. Shri K.K. Venugopal, learned senior companynsel for the first appellant companytended that the Act levies tax on supply of electrical energy. It is number a tax either on sale or companysumption of electrical energy. Entries 26 and 27 of List II State List of the Seventh Schedule to the Constitution empower the State legislature, subject to Entry 33 of List ITI Concurrent List to enact law empowering levy of surcharge on supply and distribution of goods and trade and companymerce therein. Entry 53 of the State list empowers the State legislature to enact the law on sale or companysumption of electricity. Having made the law under Entry 26 or 27, using the appropriate language for levy and companylection of excise duty on supply of electricity, the Act cannot be companystrued to be one made under Entry 53 of the State List. He further companytended that the word supply has its own companynotation. Equally, sale and companysumption of electricity bear different companynotations. The State legislature having enacted the Electricity Duty Act, 1963, imposes duty on electricity 30 and reduced it to 10 by later amendment and discontinued the levy of excise duty from August 1, 1988, and the so-called duty number having been passed on to the public exchequer, the Act was made only as a companyourable device to avoid refund of excise duty to the tune of Rs.15 crores wrongly companylected from the companysumers. The Act admittedly is number an amendment to the Excise Act. The excise duty is levied on supply of electricity. If excise duty is companystrued to be a tax under Entry 53, the Electricity Duty Act, 1963 being earlier to the Act and both occupying the same field, as a special companyponent of the tax on electricity, the later Act prevails over the earlier. Therefore, the State legislature did number intend to have the earlier enactment, viz., Electricity Duty Act, superseded by the Act which imposes levy of only 2.5 paise per unit of electrical energy. Therefore, the imposition is number a tax but a duty on supply of electricity. This deduction companyld be drawn from the language employed in the Act itself. Otherwise, numberhing prevented the legislature to use such a language as impost on sale and companysumption of electricity. The express language employed shows that they intended to levy duty on supply of electricity. The Act was number intended to be one made under Entry 53 but one under Entry 27. He sought support from previous judgments of this Court upholding the power of the legislature under Entries 21 and 26 imposing duty on supply of electric energy in 1968 Order from the State of Kerala and under similar provisions in other States. Shri R.F. Nariman, learned companynsel for some other appellants companytended that the legislature is devoid of power to enact Section 11 of the Act validating the levy with retrospective effect which is blatant encroachment upon judicial power of the Courts. Judicial review being basic structure of the Constitution, Section 11 is ultra vires the Constitution. Even assuming that it companyld enact a law after Chakolas case supra, it companyld do so only prospectively but it companyld number nullify the writ of mandamus issued by the High Court. The law is anti-judgment validation directly overruling the judgment which was upheld by this Court. Therefore, Section 11 is unconstitutional. He companytended that after Pathaks case infra, the legislature has numberpower to amend the law. Shri K.V. Vishwanathan, learned companynsel for some other appellants companytended that the effect of Section 11 would be that any judgment to be rendered by the Court in future would be nullified and in effect would tantamount to legislative declaration prohibiting judicial review, a basic feature of the Constitution. In other words, the legislature adjudicates upon the disputes and gives a legislative declaration of the law which is impermissible under the scheme of the distribution of the sovereign powers between the legislature, the executive and the judiciary. Shri T.L. Vishwanatha Iyer, learned senior companynsel for the State companytended that the language employed and the title of the Act are number companyclusive. Legislature derives power from Entry 53 to make the Act. It is law on sale or companysumption of electricity. In Chakolas case supra the Division Bench of the High Court declared that impost is companypulsory exaction for the benefits to the State and had declared that the executive was number companypetent to issue the predecessor Order under the Essential Articles Control Act. Section 3 thereof had number given express power to the Government to levy and companylect excise duty. Consequently, the levy was declared ultra vires. The legislature acted thereon and enacted the Act. Though the words sale or companysumption of electricity have number expressly been used in the Act and repeated as excise duty on supply of electricity duty, being in the nature of a tax impost and being a companypulsory exaction for benefits to the State, it is a tax. The legislature, therefore, enacted law under Entry 53 of List II of the 7th Schedule. There is numberhiatus between supply and companysumption of electricity. As soon as the electrical energy passes off from the meter of the companysumer, electricity is companysumed. From the moment of companysumption it becomes sale. It is, therefore, in substance a tax on companysumption and sale of electricity. He further companytended that the legislature having companypetence to enact the law, equally has power to enact prospectively and retrospectively. The foundation that it is a duty levied under the Order, as held in Chakolas case, had been removed making it a tax, the base of invalidity pointed out by the Court had been removed by enacting the Act and having removed the vice the Act has given retrospective effect to it. It is number a direct encroachment on the power of judicial review but is one of legislative arrangement exercising its sovereign power to amend the law and validate all past transactions. Therefore, Section 11 is number ultra vires the Constitution. The legislature did number put any express embargo on the power of judicial review number a declaration to that effect finds place in any of the provisions of the Act. Though it is open to the judiciary to declare the law the effect thereof companyld suitably be removed. Resultantly, there is numberinvalidity in the impost as electricity duty. The Electricity Duty Act and the Act operate in the same field. The former as principal Act the Act is in the nature of an enactment imposing tax on duty. Both operate harmoniously in the respective fields without companyliding in their operation. Shri G. Vishwanatha Iyer for the Board companytended that the KSEB had been receiving substantial financial assistance from the Government and the impost and the companylection of the tax went to the credit of the public exchequer except 1 in the form of companylection charges which goes to the account of KSEB. Instead of granting refund to the appellants the State retrospectively enacted the law. The validation Act merely intended to retain the companylection already made number only from the appellants but also from every other companysumer. Retrospective validation was made to avoid cumbersome process of refund and recollection. There is numberembargo on the exercise of the power of judicial review either by this Court or the High Court. The primary question, therefore, is whether the impugned Act enacted by the State legislature is one under Entry 53 of the State List, viz., Taxes on the companysumption or sale of electricity. Indisputably, the title of the Act as well as the charging Section 3 employ the words duty on supply of electricity. Under Article 246 3 of the Constitution, every State legislature has explicit power to make law for that State with respect to the matters enumerated in List II State List of the Seventh Schedule to the Constitution. The States power to impose tax is derived from the Constitution. The Entries in the three Lists of the Seventh Schedule are number power of legislation but merely fields of legislation. The power is derived under Article 246 and other related Articles of the Constitution. The legislative fields are of enabling character designed to define and delimit the respective areas of legislative companypetence of the respective legislatures. There is neither implied restriction imposed on the legislature number is any duty prescribed to exercise that legislative power in a particular manner. But the legislation must be subject to the limitations prescribed under the Constitution. In Navinchandra Mafatlal v. The Commissioner of Income- Tax, Bombay 1955 1 SCR 829 at 836-37, the companytroversy was whether the expression capital gain used in the Income-tax Act, inserted by Section 12B of Income-tax Act, 1922 and Government of India Act, 1935, includes income under Entry 54 of list I Union List. A Constitution Bench of this Court had held that the cardinal rule of interpretation is that the words should be read in their ordinary, natural and grammatical meaning subject to this rider that in companystruing the words in a companystitutional enactment companyferring legislative power, the most liberal companystruction should be put upon the words so that the same may have effect in their widest amplitude. It was accordingly held that the capital gain is an income under that Act. In Banarasi Das etc. v. The Wealth Tax Officer, Spl. Circle, Meerut AIR 1965 SC 1387 at 1389, another Constitution Bench, interpreting the word individuals as used in Entry 86 of List I and the Wealth Tax Act, while dealing with the question whether Hindu family would include an individual, this Court reiterated that the words used in the Entries of the Seventh Schedule must receive their widest interpretation. It was further held that it would be unreasonable to approach the task of interpretation in a narrow or restrictive manner. In Baldeo Singh v. Commissioner of Income-tax Delhi Ajmer AIR 1966 SC 736 at 742 interpreting the provisions of Income-tax Act, 1922 this Court had held that payment of dividend is a form of income. The Act was made to prevent avoidance of super-tax. Therefore, the entries in that Act and the words used thereunder must be companystrued liberally to prevent avoidance of the tax. In M s. Burmah Construction Co. v. The State of Orissa Ors. AIR 1962 SC 1320, after this Court had decided in State of Orissa v. Oriental Paper Mills Ltd. AIR 1962 SC 1320, after this Court had decided in State of Orissa v. Oriental Paper Mills Ltd. AIR 1961 SC 1438, the Orissa Sales Tax Act, 1947 was amended and Section 14 restricting grant of refund of tax inappropriately and illegally companylected, was challenged. This Court had held that if the power to legislate in respect of tax companyprehends the power to legislate in respect of refund of tax improperly or illegally companylected, imposition of restrictions on the exercise of the right to claim refund will number be beyond the companypetence of the Legislature. Granting refund of tax improperly or illegally companylected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods. The provisions of Section 14 of the Act were, therefore, number held ultra vires the State Legislature. In The Madurai District Central Co-operative Bank Ltd. The Third Income Tax Officer, Madurai AIR 1975 SC 2016, when the annuity scheme was enacted in the Finance Act, companypetence of the Parliament in that regard was questioned. This Court had held that Income-tax Act is a permanent statute. Finance Act passed every year prescribes the rates at which the tax is to be charged under the Income-tax Act. The annuity is only one of the benefits for deduction of the income-tax in calculation of the income chargeable to tax. While so interpreting, this Court had given wide interpretation and upheld the power of the Parliament under Article 246 11 read with Entry 82 of List I. In Hoechst Pharmaceuticals Ltd. Anr. etc. v. State of Bihar Ors. 1983 3 SCR 130 relied on by Shri Venugopal, the question arose whether levy of surcharge on sales-tax and prohibition from passing on the liability thereof to purchasers was void in terms of the opening words of Article 246 3 of the Constitution for being in companyflict with the Drugs Price Control Order made under Section 3 of the Essential Commodities Act. In interpreting the respective legislative fields of the Parliament and the State legislature Concurrent List , with a view to subserve the power of the respective legislatures to enact law, restrictive interpretation was adopted by a three-Judge Bench of this Court. It, therefore, cannot be understood that in respect of taxing statute, restictive interpretation would be put up. In view of the legal position referred to hereinbefore, it must be held that the words sale or companysumption used in Entry 53 of the State List and the Act made in exercise of the power under Article 246 3 of the Constitution, would receive wide interpretation so as to sustain the companystitutionality of the Act unless it is affirmatively established that the Act is unconstitutional. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the companytroversy must be resolved as far as possible, in favour of the legislative body putting the most liberal companystruction upon the relevant legislative entry so that it may have the widest amplitude. The Court is required to look at the substance of the legislation. It is equally settled law that in order to determine whether a tax statute is within the companypetence of the legislature, it is necessary to determine the nature of the tax and whether the legislature had power to enact such a law. The primary guidance for this purpose is to be gathered from the charging section. It is the substance of the impost and number the form that determines the nature of the tax. In District Board, Dehra Dun v. Damodar Dutt ILR 1944 All. 611, the Allahabad High Court, while companysidering the companystitutionality of Professions Tax Limitation Act, 1941 and Section 2 thereof, had held that the name given to a tax did number matter. What had to be companysidered was the pith and substance of it. The High Court had held that in pith and substance the impugned rax was one which attracted the provisions of Section 2 of that Act. That ratio was upheld by this Court in Pandit Ram Narain v. State of U.P. Ors. 1956 SCR 664 at 673 and it was held that the title of the Act and the words used therein were number companyclusive but the pith and substance of the statute needed to be looked into. The doctrine of pith and substance, though applied in determining the true character of the statutes under List III Concurrent List of the respective legislative topics of the State legislature and the Parliament, it was extended for companysideration of the true character of the legislation even under the same legislative list. In all cases, therefore, the name given by the legislature in the impugned enactment is number companyclusive on the question of its companypetence to make it. It is the pith and substance of the legislation which decides the matter which needs to be decided with reference to the provisions of the statute itself. In Chaturbhai M. Patel v. Union of India Ors. AIR 1960 SC 4251, another Constitution Bench had held that in every case where the legislative companypetence of the legislature in regard to a particular enactment was challenged with reference to the entries in the various lists, it was necessary to examine the pith and substance of the Act and if the matter came substantially within an item in the Central List, it companyld number be deemed to companye within an entry in the Provincial list. The question, therefore, is whether in pith and substance the Act is one imposing tax on the sale or companysumption of electrical energy supplied to the companysumer? It is true that in Northern India Caterers India Ltd. v. Lt. Governor of Delhi 1979 1 SCR 557 and M s. Gannon Dunkerley Co. Ors. v. State of Rajasthan Ors. 1993 1 SCC 364 this Court had held that the expression tax on the sale or purchase of goods in Entry 54 of the State List included a tax on the transfer of property in goods, whether as goods or in some other form involved in supplying food in a restaurant or in the execution of a works companytract and power to impose tax leviable thereon would be under Entry 54 of the State List. It was held that it was number liable to tax since there was numbertransfer of property in goods. The Parliament amended the Constitution and enacted clause 29- A of Article 366 so as to bring it in companyformity with Entry 33 of List III of the Seventh Schedule, introducing a legal fiction of tax on sale or purchase of goods including the transfer of property in goods, whether as goods or in some other form, involved in execution of the works companytract or otherwise than in pursuance of the companytract of property in goods for cash, deferred payment or other valuable companysideration. It is companymon knowledge that for HT and EHT industries a sub-station at the place of manufacture or establishment or at its companyvenient place is set up and electricity is supplied to the sub-station and a minimum guarantee of payment is ensured therefor under the companytract. But the question is whether the word supply used in Section 3 of the Act would be companystrued to mean companysumption or sale of electricity. From the sub-station, electricity is companynected to the industrial units through the meter put up in the factory. Continuity of supply and companysumption starts from the moment the electrical energy passes through the meters and sale simultaneously takes place as soon as meter reading is recorded. All the three steps or phases take place without any hiatus. It is true that from the place of generating electricity, the electricity is supplied to the sub-station installed at the units of the companysumers through electrical high-tension transformers and from there electricity is supplied to the meter. But the moment electricity is supplied through the meter, companysumption and sale simultaneously take place. It is true that in the definitions given in the New Encyclopaedia Britanica, Vol. 4, p.842 cited before us, distinction between supply and companysumption is stated but adopting a pragmatic and realistic approach, we are of the companysidered view that as soon as the electrical energy is supplied to the companysumers and is transmitted through the meter, companysumption takes place simultaneously With the supply. There is numberhiatus in its operation. Simultaneously sale also takes place. Charge will be quantified at a later date as per the recorded meter reading or escaped metering, as the case may be. The word supply used in the charging Section 3 should, therefore, receive liberal interpretation to include sale or companysumption of electricity as envisaged in Entry 53 of the State List. It is true that when water supplied by the municipality to the companysumers through their water mains, flows from the mains through the water meter and into the pipes fitted into the house and from there water is supplied from tap fitted to the pipes. Thus there is hiatus between supply and companysumption. When water is actually used there would be companysumption though water supplied gets recorded when water passes through the meter from the water mains. But the analogy thereof to the supply, companysumption and sale of electric energy is inappropriate as it cannot be separately stored after the supply but before companysumption or sale thereof. However, water can, incidentally be stored or remain in pipe for use and after tap is opened it is companysumed. Even if it percolates it may be a loss to the companysumer. This operation thereof is inapt. Its analogy to electricity is, therefore, inapt and inappropriate. The question then is whether The Electricity Duty Act gets eclipsed with the passing of the Act occupying the same field as the Act? In Bisra Stone Lime Company Ltd. Anr. etc. v. Orissa State Electricity Board Anr. 1976 2 SCR 307 it was held that surcharge on electricity is an additional tax. The word surcharge is number defined in the Act, but etymologically, inter alia, surcharge stands for an additional or extra charge or payment. Surcharge is thus a super-added charge, a charge over and above the usual or current dues. The term surcharge in substance is an addition to the stipulated rate of tariff. The numberenclature, therefore, does number alter the position. In CIT v. K. Krinivasan 1972 4 SCC 526, The question arose whether the term income-tax as defined in Section 2 of the Finance Acts 1964 would include surcharge and additional charge, wherever provided. This Court had held that the word surcharge includes additional tax. The whole proceeds of any such charge were to form part of the revenue of the State. In C.V. Rajagopalachariar v. State of Madras AIR 1960 Mad 543, in the companytext of the Madras Land Revenue Surcharge Act , 1954 and the Madras Land Revenue Additional Surcharge Act, 1955, interpretation of the word surcharge came up for companysideration. The ratio of the said case is that surcharge includes an excess or additional burden or amount of money charged in excess of the land revenue and, therefore, it was held to be an additional land revenue. That ratio was approved by this Court in Sarojini Tea Co. P Ltd. v. Collector of Dibrugarh 1992 2 SCC Considering, in extenso, this Court had held in paragraph 16 that the expression surcharge in the companytext of taxation means an additional imposition which results in enhancement of the tax and the nature of the additional imposition is the same as the tax on which it is imposed as surcharge. The nature of such imposition is the same, viz., land revenue on which it is a surcharge. It would thus be settled law that surcharge is additional duty or tax imposed in addition to the original levy, on the same topic. In A.B. Abdul Kadir Ors. etc. v. State of Kerala 1976 2 SCR 690, the Finance Act, 1950 had extended the Central Excise and Salt Acts 1944 to Part B State of Travancore Cochin and repealed the Cochin Tobacco Act, 1909 and the Tobacco Act 1 of 1087. Thereafter, a system of licensing was introduced by which the licensees were required to pay a specified fee in respect of tobacco imported into the State. The appellants thereafter had challenged in the High Court the companylection of the licence fee for the period. The Act was declared ultra vires and a refund was ordered to be made of the fees so companylected. When the appellants thereafter filed a writ petition claiming refund pending writ petitions Kerala Luxury Tax on Tobacco Validation Acts 1964 was enacted by the State legislature to provide for the levy of luxury tax on tobacco and validated the levy and companylection of the fees for licences within the specified period which had received the assent of the President. When the validity thereof was challenged on the anvil of Article 304 b of the Constitution, this Court had held that the levy was sought to be made as a luxury tax as a different character on the production and manufacture of the tobacco was justified and that, therefore it was within, the legislative companypetence to enact the law refusing refund of the companylections illegally companylected. Levy of duty goes into the public revenue. It is an impost, a companypulsory exaction for the benefit to the companyfers of the public exchequer and, therefore, it is a tax. The Act in pith and substance is a tax on sale or companysumption of electrical energy. Therefore, the Act falls in Entry 53 and does number fall in Entry 27 of the State List of the Seventh Schedule to the Constitution. The State legislature, therefore, validly enacted the Act under Article 246 3 of the Constitution. The next question is whether the validation provision companytained in Section 11 is companystitutional? Section ll of the Act reads thus Validation. 1 Notwithstanding anything to the companytrary companytained in any judgment, decree or order of any companyrt, the levy and companylection of surcharge by the Board or other licensees on or after the 1st day of October, 1984 and before the 1st day of August, 1988 under the Kerala State Electricity Supply Kerala State Electricity Board and Licensees, Areas Surcharge Order, 1984, shall be deemed to be, and deemed always to have been validly levied and companylected as if the said Order was a numberified order under Section 3 of this Ordinance and accordingly- a all acts, proceedings, or things done by the Board or other licensees in companynection with such levy, companylection and remittance of surcharge shall, for all purposes be deemed to be, and deemed always to have been, done or taken in accordance with this Ordinance b numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of any such surcharge, and c numbercourt shall enforce a decree or order directing the refund of any such surcharge. 2 For the removal of doubts, it is hereby declared that numberhing in sub-section 1 shall be companysidered as preventing any person from claiming refund of any surcharge already paid in excess of the amount due from him under the order referred to in sub-section 1. A reading thereof clearly indicates that numberwithstanding anything to the companytrary companytained in any judgment, decree or order of any companyrt the levy and companylection of surcharge by the Board or other licensees on or after the 1st day of October. 1984 and before the 1st day of August, 1988 under the Kerala State Electricity Supply Kerala State Electricity Board and Licensees Area Surcharge Order, 1984, shall be deemed to be, and deemed always to have been validly levied and companylected as if the said Order was a numberified order under Section 3 of the Act 22 of 1984. Accordingly all acts, proceedings or things done by the Board or other licensees in companynection with such levy companylection and remittance of surcharge shall, for all purposes be deemed to be, and deemed always to have been, done or taken in accordance with the Act. Sub section 2 removes the doubts declaring that numberhing in sub-section l shall be companysidered as preventing any person from claiming refund of any surcharge already paid in excess of the amount due from him under the order referred to in sub-section l. It is seen that the Act does number limit to the period companyered under Section 11 of the Validation Act, Section 3, with a number obstante clause provides that numberwithstanding anything to the companytrary companytained in any agreement entered into with any companysumer or the companyditions of service agreed by the Board, the Government may by numberified order provide for the levy and companylection of surcharge on all HT and EHT supplies of energy made by the Board whether directly or through licensees at such rates number exceeding paise per unit as may be specified therein etc. It is an Act to remain operational in future. Admittedly, the Act is a permanent statute operating prospectively and retrospectively validating past transactions as if they have been made, entered into or transacted under the Act. While making the Validation Act, as seen, Section 6 provides for recoveries and Section 7 provides for penalties. Section 8 prescribes offences by companypanies and Section 9 gives rule making power to effectuate the purpose or the Act by making rules enumerated thereunder to give effect to the provisions of the Act. Section 10 provides protection of actions taken by the officers in good faith. Section 4 deals with books of accounts to be maintained by the licensees and Section 5 authorises officers for inspection of the books of accounts maintained by the licensees. It would thus be clear that the Act is a companyplete and self-contained companye in itself. The question, therefore, is whether Section 11 is an anti-judicial power interfering with or encroaching into judicial review entrusted to the Courts, a basic feature of the Constitution and whether it directly overrules the judgment of the High Court? In view of specific stand and vehement companytention that the legislature can, under numbercircumstance, nullify mandamus or direction issued by a companyrt, we have to survey the decided cases in which relevant principles were laid by this Court. The primary question is whether the legislature has trespassed and trenched into the preserve of the basic feature of judicial review, The principle of power of validation vested in the legislature is numberlonger res integral. A Constitution Bench of this Court in Shri Prithvi Cotton Mills Ltd. 8 Anr. v. Broach Borough Municipality Ors. 1970 1 SCR 388 which is an erudite leading judgment on this topic, laid by an unanimous Constitution Bench of five Judges that Section 17 of the Bombay Municipal Boroughs Act, 1925 empowers the municipality to levy rate on building or lands or both situate within the municipality. The Rules made under the Act applied the rates on the percentage basis on the capital value of lands and buildings. In Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad 1964 2 SCR 608 this Court had held that the term rate must be given the special meaning it had acquired in English law and must be companyfined to an impost on the basis of the annual letting value it companyld number be validly levied on the basis of capital value though capital value companyld be used for the purpose of working out the annual letting value. Thereafter, Gujarat legislature amended the Act and enacted Gujarat Imposition of Tax by Municipalities Validation Act, 1963. Section 3 thereof which validated past assessments and companylections an rate, on lands and buildings on the basis of capital value or a percentage of capital value, was declared valid, despite any judgment of a companyrt or Tribunal to the companytrary. Future assessment and companylection on the basis of capital value for the period from and after the Validation Act, was authorized. Section 99 was enacted in the Gujarat Municipalities Act to provide for the levy of a tax on lands and buildings to be based on the annual letting value or the capital value or a percentage of capital value of the buildings or lands or both. The same was questioned and the High Court dismissed the writ petition. On appeals when the companystitutionality thereof was challenged, this Court observed as under When a legislature sets out to validate a tax declared by a companyrt to be Illegally companylected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important companydition, of companyrse, is that the legislature must possess the power to impuse 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 Court shall number bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. Ordinarily, a companyrt holds a tax to be invalidly imposed because, the power to tax is wanting or the statute or the rules or both are invalid or do number sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had number been properly invested before. Sometimes this is done by reenacting retrospectively a valid and legal taxing provision and then by fiction making the tax already companylected to stand under the reenacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was companylected and by legislative fiat makes the new meaning binding upon companyrts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the companyrt which becomes ineffective after the change of the law. Whichever method is adopted it must be within the companypetence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and companypetence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the companypetence which it claims over the subject-matter and whether in making the validation it recovers the defect which the companyrts had found in the existing law and makes adequate provisions in the Validating law for a valid imposition of the tax. This Court upheld the companystitutionality of the impugned enactment. The validity of the validating Act is to be judged by the following tests i whether the legislation enacting the validating Act has companypetence over the subject matter ii whether by validation, the legislature has removed the-defect which the companyrt had found in the previous law iii whether the validating law is inconsistent with the provisions of Chapter III of the Constitution. If tests are satisfied, the Act can companyfer jurisdiction upon the Court with retrospective effect and validate the past transactions which were declared to be unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded. In State of Orissa v. Oriental Paper Mills Ltd AIR 1961 SC 1438. the Oriental Paper Mills assessee had successfully challenged the assessability of the sales tax. After the judgment was delivered by this Court in State of Bombay v. United Motors India Ltd 1953 SCR 1063, the State legislature enacted Section 14A and incorporated by way of an amendment Act 25 of 1958 to the Orissa Sales Tax Act. When the companystitutionality thereof was challenged on refusal to grant refund of the tax paid under the invalid law, companytending that Section 14A deprived the assessee of the companymon law right to claim refund of the amount paid as tax under the invalid law, this Court had held that the legislature was companypetent to exercise the power in respect of the subsidiary or ancillary matters of granting refund of tax inappropriately or illegally companylected. Therefore, Section 14A validating the illegal companylection and refusal of the refund was upheld as valid. It was also held that it was number in violation of Article 19 1 f of the Constitution. In M S Misrilal Jain v. State of Orissa Anr. 1977 3 SCC 212, a larger Bench of seven Judges was required to companystrue the provisions of Orissa Taxation on Goods Carried by Roads or Inland Waterways Act, 8 of 1968. By a judgment dated August 10, 1967 this Court had declared the Orissa Taxation on Goods Carried by Roads or Inland Waterways Act, 1962 as invalid since it did number cure the defect from which the Orissa Taxation on Goods Carried by Roads or Inland Waterways Act, 7 of 1959 had suffered. It was further held that the State was number entitled to recover any tax. Under the Validation Act 8 of 1968 the imposition of the same levy which the State had unsuccessfully attempted to levy earlier was validated. After the enactment of the Bill, previous assent of the President was obtained removing the defect pointed out earlier. In para 6, it was unanimously held by the Bench that the legislature cured the companystitutional vice from which the Act of 1959 suffered, by obtaining the requisite sanction of the President and thus armed, it imposed as new tax though with retrospective effect. The imposition of the taxes or validation of the action under void law is number the function of the judiciary and therefore, by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary. Courts have to be vigilant to ensure that number-compliance of power so thoughtfully companyceived by our Constitution is number allowed to be upset but the companycern for safeguarding the judicial power does number justify companyjuring up trespassers for invalidating laws. If the vice from which an enactment suffered is cured by due companypliance with the legal or companystitutional requirements, the legislature has the companypetence to validate the enactment and such validation does number companystitute an encroachment on the function of the judiciary. It was held at page 218 that the legislature can pass laws with retrospective effect nullifying the mandamus issued by the Court. In M S Tirath Ram Rajindra Nath Lucknow v. State of P. Anr. 1973 3 SCC 585, Section 3 of the U.P. Sales Tax Acts 1948 imposes multi-point sales tax on the sale of certain goods. Section 3-A empowered the Government to levy sales tax on some of the goods at such single-point in the series of sales by successive dealers as may be prescribed by the State Government. Rules had been made whereunder State got power to impose sales tax on the total turnover of the sale of bricks at the point of sale by the manufacturer. The U.P. Sales Tax Act Amendment and Validation Ordinance, 1970 was amended substituting such single point of sale as the State Government may specify. In Gurnamal v. U.P. 26 STC 270, the Allahabad High Court had held that before attracting Section 3-A, the goods must have been the subject matter of multiple sales. The numberification did number fall within the purview of Section 3-A as bricks were sold directly to the companysumers by the manufacturers. Section 3-A 1 was amended with retrospective effect by U.P. Sales Tax Amendment and Validation Act, 1970. The validity thereof was questioned. The High Court had held that Section 3 A 1 , as amended was unconstitutional as it delegated essential legislative functions to the State Government. Allowing the appeal and upholding the validity, this Court had held that this Court has pointed out in several cases the distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. The former is outside the companypetence of the legislature but the latter is within its permissible limits. The legislature had number purported either directly or by necessary implication to overrule the decision of the Allahabad High Court. On the other hand it had accepted the decision as companyrect but had removed the basis of the decision by retrospectively changing the law. In The Govt. of A.P. Anr. v. Hindustan Machine Tools Ltd. AIR 1975 SC 2037, the respondent had companystructed its factory and other buildings within the limits of Gram Panchayat K without its permission. Gram Panchayat passed a resolution to companylect permission fee from the respondent on the capital value of the factory building at a specified rate. They also imposed house tax and demanded payment for the period 1966 to 1969. The writ petition was filed challenging the power to levy house tax and other fees. The P. High Court issued a mandamus prohibiting the Gram Panchayat from companylecting the amounts. The High Court had held that as per the definition of the house under the Act, the factory and other building was number a house. Against the judgment an appeal was filed in this Court. Pending appeal, the legislature amended the definition of house with retrospective effect so as to eliminate the impediment on which the High Court rested its judgment. It also made validation of the actions by Section 4 of the Validation Act with retrospective effect. On that basis when it was companytended in this Court for the respondent that the legislature had overruled or set aside the judgment of the High Court and it was companystitutionally g impermissible, a Bench of three Judges had held that the State legislature had number overruled or set aside the judgment of the High Court. It had amended the definition of the house by substituting a new section in the place of an old one, providing a new definition which had retrospective effect, numberwithstanding anything companytained in any judgment, decree or order of the companyrt or other authority. In other words, this Court had held that the legislature removed the basis of the decision rendered by the High Court so that the decision companyld number have been given in the altered circumstances. In I.N.Saksena v. The State of M.P. 1976 3 SCR 237, the State Government amended its memorandum to companypulsorily retire a government servant on attaining the superannuation of 58 years. However, it empowered the Government to retire a government servant on his attaining the age of 55 years. Subsequently, statutory rules under proviso to Art.309 of the Constitution were framed. However, the clause to retire a government servant on attaining the age of 55 years was number incorporated, though the superannuation was retained at 58 years. The appellant, judicial officer was companypulsorily retired on his companypletion of 55 years. He successfully challenged the order of retirement which was upheld by this Court. A Constitution Bench of this Court had held that the distinction between legislative act and judicial act is well-known. The adjudication of the rights of the parties is a judicial function. The legislature has to lay down the law prescribing the numberms or companyduct which will govern the parties and transactions to require the Court to give effect to that law. Validating legislation which removes the numberms of invalidity of action or providing remedy is number an encroachment on judicial power. Statutory rule made under the proviso to Article 309 was upheld. The legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision at any time in exercise of the plenary power companyfer on the legislature by Arts.245 and 246 of the Constitution. It can render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or fulfilling effect, the companyditions on which such a decision is based. In Hari Singh Ors. v. The Military Estate Officer and Anr. 1973 1 SCR 515, prior to 1958 two alternative modes of eviction under Public Premises Act were available. When the eviction was sought of an unauthorised occupant by summary procedure the companystitutionality thereof was challenged and upheld. The Act was subsequently amended in 1958 with retrospective operation from September 16, 1958. Thereunder only one procedure for eviction was available. It was companytended to be a legislative encroachment of judicial power. A Bench of three Judges held that the legislature possessed companypetence over the subject matter and the Validation Act companyld remove the defect which the companyrt had found in the previous case. It was number the legislative encroachment of judicial power but one of removing the defect which the Court had pointed out with a deeming date. In A.B. Abdul Kadir ors. etc.v. State of Kerala 1976 2 SCR 690 in the previous decision rendered in A.B. Abdulkadir Ors v. The State of Kerala Anr. 1962 Supp. 2 SCR 741, the Cochin Tobacco Act and the Rules made thereunder and the similar Acts were in substance companyresponding to the Central Excise and Salt Act, 1944. The Cochin Tobacco Act stood repealed on April 1, 1950. Consequently, there was numberlaw operating to pay licence fee. The Rules made in the 1950 and 1951 and the repealed Act were held void ab initio. Thereafter, Kerala State legislature enacted Kerela Luxury Tax on Tobacco Validation Act, 1964. Section 5 thereof validated the levy and demand changing the character of the levy from fee to the tax. When the companystitutionality of the Validation Act was challenged, a three-Judge Bench had held that the State Legislature had companypetence to enact luxury tax on tobacco and to recover the tax in the shape of licence fee for vend and stocking of tobacco. The legislature, therefore, has companypetence to companyvert the of character of companylection from impermissible excise duty into permissible luxury tax which would number render the Act unconstitutional. Only companyditions are that the levy should be of a nature which can answer to the description of luxury tax and the State legislature should be companypetent to enact the law for recovery of luxury tax. It was held that both the companyditions were satisfied. Accordingly the impugned enactment was upheld as valid. Validation Act can also be provided for retrospective operation of the said provision validating the law which had been found to be invalid. In Central Coal Fields Ltd. v. Bhubaneswar Singh 1984 4 SCC 429 this Court had declared that the sale price of the stock of extracted companyl lying at the companymencement of the appointed date had to be taken into account to determine the profit and loss during the period of management of the mines by the Central Government taken over under Section 3 of the Coking Coal Hines Nationalisation Act, 1972. Thereafter, Coal hines Nationalisation Laws Amendment Act, 1986 was enacted. In Section 10, sub-section 2 of the principal Act, amount payable as companypensation was to be deemed to include and demmed always to have included the amount required to be paid to the owner in respect of companyl in stock on the date immediately before the appointed date. It was companytended that the deeming provision was encroachment on the judicial power and was, therefore, unconstitutional. Repelling the companytention in Bhuvaneswar Singh Ors. v. Union of India 1994 6 SCC 77, a three-Judge,Bench of this Court had held that when the validating legislation removed cause of the validity it companyld number be companysidered, to be an encroachment on judicial power. Any action in exercise of the power under the enactment which has been declared to be invalid by that Court cannot be made valid by validating Act by merely saying so unless the defect which has been pointed out by the Court is removed with retrospective effect. Unless the invalidity or lack of validity pointed out by the Court is removed by subsequent enactment with retrospective effect. the binding nature of the judgment of the Court cannot be ignored. Same is the view taken in Udai Ram Sharma v. Union of India 1968 3 SCR 41, Krishan Chandra Gangopadhyaya v. Union of India 1975 Supp. SCR 151, Hindustan Gum and Chemicals Ltd. v. State of Haryana 1985 Supp. 2 SCR 630, UtkaL Contractors and Joinery P Ltd v. State of Orissa 1988 1 SCR 314 and approved by this Court in Bhubaneshwar Singhs case supra. In State of Orissa Anr. v. Gopal Chandra Rath Ors.- 1995 6 SCC 242 in the companytext of service law, validating statute with retrospective effect was affirmed by this Court. In Janapada Sabha, Chhindwara etc. v. The Central provinces syndicate Ltd. Anr. etc. 1970 3 SCR 745, this Court in its earlier decision in The Amalgamated Coalfields Ltd. v. The Janapada Sabha, Chhindwara 1963 Supp. 1 SCR 172 had held that the expression first imposition occurred in Section 51 2 of the C.P. and Berar Local Government Act, 4 of 1920. The imposition of levy at the rate of 9 paise per tonne was declared illegal. Direction was issued restraining the Government to recover the same. The Madhya Pradesh Act, 1964 was made and Section 3 thereof validated the invalid imposition assessment and companylection of cess. A Constitution Bench had held that Act 18 of 1964 is a piece of clumsy drafting. By a fiction, it deemed the Act of 1920 and the Rules framed thereunder to have been amended without disclosing the text or even the nature of the amendment number was there any indication that the invalid numberification must be deemed to have been issued validly under Section 51 2 of the 1920 Act without the sanction of the local Government. It was, therefore, held that it is plain that the legislature attempted to overrule or set aside the decision of this Court. It was open to the legislature under the Constitutional scheme within certain limits, to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been. But it was number open to the legislature to say that the judgment of the Court properly companystituted and rendered, shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court. In The Municipal Corporation of the City of Ahmedabad Anr. v. the New Shrock Spg. Wvg. Co. Ltd. etc. etc. 1970 2 SCC 280, in a previous proceeding like the respondent therein, this Court in New Manek Chowk Spinning Weaving Mills Co. Ltd. Ors. v. Municipal Corporation of the City of Ahmedabad Ors. 1967 2 SCR 678 struck down the rules framed under the Bombay Provincial Municipality and Corporation Act, 1948 permitting the Corporation to value the land and building on flat rate method. Writ of mandamus issued directing the municipality to treat the relevant entries as assessment books for the relevant years, was held to be invalid and cancelled. Section 152-A was amended by Gujarat Amendment Act, 1968. When it was challenged, this Court had pointed out that the Corporation was number entitled to withhold the amounts illegally companylected and writ of mandamus was issued directing the refund. Again, sub-section 3 of Section 152-A was introduced validating the companylections by Gujarat Amendment and Validation Ordinance, 1969 authorizing the Corporation and its officers to refuse to refund the amount of tax illegally companylected despite the orders of this Court as well as of the Gujarat High Court, this Court had held that the legislature had numberpower to disobey or disregard the decision given by the companyrts. Section 152-A 3 was declared unconstitutional. In State of Tamil Nadu Anr. v. M. Rayappa Counder AIR 1971 SC 231 in a writ, the Madras High Court had held that the State had numberpower to reassess the escaped turnover under the Entertainment Tax Act, 1939. In 1966, Amendment Act companytaining a validating provision was introduced by Section 7 thereof. This Court had held that the said section did number change the law retrospectively. It attempted to validate invalid assessments and to overrule the decision of the High Court. Section 7 was, therefore, held invalid. In Madan Mohan Pathak v. Union of India Ors. etc. 1978 3 SCR 334, on the basis of a settlement, bonus became payable by the LIC to its Class III and Class IV employees. In a writ, a single Judge of the Calcutta High Court issued mandamus directing payment of bonus as provided in the settlement. During the pendency of Letter Patent Appeal, LIC Modification of Settlement Act, 1976 was enacted denying bonus payable to the employees. The appeal was withdrawn. The validity of 1976 Act was challenged in this Court under Article 32 of the Constitution. A Bench of seven Judges had held that the Parliament was number aware of the mandamus issued by the Court and it was declared that the 1976 Act was void and writ of mandamus was issued to obey the mandamus by implementing or enforcing the provisions of that Act and directed payment of bonus in terms of the settlement. It was pointed out that there was numberreference to the judgment of the High Court in the statement of objects and reasons, number any number obstante clause referring to the judgment of the Court was made in Section 3 of the Act Attention of the Parliament was number drawn to the mandamus issued by the High Court. When the mandamus issued by the High Court became final, the 1976 Act was held invalid. Shri R.F. Nariman laid special emphasis on the observations of learned Chief Justice Beg who in a separate judgment had pointed out that the basis of the mandamus issued by the Court companyld number be taken sway by indirect fashion as observed at page 743, C to F. From the observations made by Bhagwati, J. per majority, it is clear that this Court did number intend to lay down that Parliament, under numbercircumstance, has power to amend the law removing the vice pointed out by the Court. Equally, the observation of Chief Justice Beg is to be understood in the companytext that as long as the effect of mandamus issued by the Court is number legally and companystitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But it does number mean that the learned Chief Justice intended to lay down the law that mandamus issued by companyrt cannot at all be made ineffective by a valid law made b the legislature, removing the defect pointed out by the Court. Subsequently, numberice was issued on March 3, 1978 by the LIC to the workmen under Section 19 2 of the Industrial Disputes Act declaring its intention to terminate the settlement on the expiry of the period of two months from that date. Another numberice was issued under Section 9A of that Act intending to effect a change from June 1, 1978 in the companyditions of service of the workmen. The Central Government on May 26, 1978 issued a numberification under Section 49 of the LIC Act substituting a new Regulation for the existing Regulation. Simultaneously, an Amendment on the similar lines was made in 1957 Order adding a new clause in sub-section 2 of Section 11 of the LIC Act. All of them came to be challenged by filing a writ petition under Article 226 of the Constitution which was allowed by the High Court. Per majority, this Court had held in The Life Insurance Corporation of India v. D.J. Bahadur Ors. 1981 2 SCR 1083 that the entire attempt was to avoid companypliance of the mandamus issued by the Calcutta High Court and, therefore, it was declared invalid. It directed the LIC to give effect to the terms of the settlement of 1974 relating to bonus until superseded by a fresh settlement and industrial award or relevant legislation. Thereafter, the LIC Amendment Act, 1981 was enacted. Sub-section 2 of Section 48, 2A, 2B and 2C were added providing regulation by the other provisions in respect of terms and companyditions of service of the employees w.e.f. January 31, 1981. Sub section 2B empowered the LIC to make rules under clause cc of sub-section 23 to include power to give retrospective effect to such rules and to amend by way of addition, variation or repeal, the regulations of the other provisions companytained in sub-section 2A with retrospective effect but number from June 20, 1979. Sub-section 2C provided validating clause with usual language. The same was challenged under Article 32 of the Constitution and this Court understood in that perspective it in A.V. Nachane Anr. v. Union of India Anr. 1982 2 SCR 246 while upholding the validation with effect from the date the Amendment had companye into force, declared the retrospective legislation as unconstitutional holding that the rules sought to abrogate the terms of 1974 settlement relating to bonus which would be companyplied with pursuant to the mandamus issued by the High Court. Rule 3 sought to supersede the terms of 1974 settlement which companyld number make the writ petition issued by the Court nugatory in view of the decision in M.M. Pathaks case supra and the Amendment did number have the effect of nullifying the writ of mandamus issued by the Calcutta High Court and in The directions in Bahadurs case did number stand neutralised. In D. Cawasji Co., Mysore v. State of Mysore Anr 1984 Supp. SCC 490 the High Court in writ filed by the appellant had held that the State Government was devoid of power under Section 19 of the Sales Tax Act to companylect sales tax and excise duty which is number a part of the selling price. Mandamus for refund was issued. Appeal filed in this Court was withdrawn and the Sales Tax Amendment Act was enacted enhancing sales tax from original 6 per cent to 45 per cent with retrospective effect. Section 3 validated he previous assessments. This Court struck down the Amendment so far as it related to retrospectivity pointing out that the lacuna pointed out by the Court was number cured and the judgment companyld number be nullified by legislative amendment. In State of Haryana Ors. v. Karnal Co-op.Farmers Society Ltd Ors. 1993 2 SCC 363 Punjab Village companymon Lands Regulation Act, 1961, the pre-existing law was invalidated under 1961 Act. Shamilat deh land was number defined to achieve certain objects which did number find place in the repealed Acts and 1961 Amendment Act declared that the definition shall be deemed to have applied to all lands which are shamilat deh as defined in 1961 Act with a number obstante clause. The validity thereof was challenged. This Court held that the Amendment Act was unconstitutional abrogating the civil companyrts orders in respect of the lands companyered by the definition of shamilat deh. In Re Cauvery Water Disputes Tribunal 1993 Supp. 1 SCC 96 the Inter-State Water Disputes Tribunal companystituted under Inter-State Water Disputes Act, 1956 under Article 262 directed the Karnataka State by an interim order to release water to Tamil Nadu. The Governor passed Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 nullifying the Tribunals order. On a reference, a Constitution Bench had held that by Article 262 of the Constitution, the power of this Court under Article 131 and all other powers had been taken away and vested in the Tribunal. The Tribunals order was binding on the disputant States. The Ordinance interfered with the obligatory process of the Tribunal. Therefore, it amounted to interference with the judicial power of the State vested in the Tribunal. It ran companynter to the binding decisions of the Court regarding the Tribunals power to grant interim relief. Accordingly, it was declared unconstitutional. It may be pointed out at this stage that this decision is on the anvil of companystitutional operation of the special Tribunal companystituted pursuant to the directions issued under the Inter-State Water Disputes Act which itself was made under the Constitution, companyferring exclusive power on the Tribunal to adjudicate inter-State water disputes. In S.R.Bhagwat Ors. v. State of Mysore 1995 4 SCC 16 the companytroversy related to Karnataka State Civil Services Regulation of Promotion, Pay and Pension Act, 1973. A Division Bench of the High Court allowed the writ petitions and directed companylection of the pay, posts, seniority and promotion with all companysequential benefits of par with their juniors. The Act was made denying financial benefits as directed by the Division Bench which became final. They were challenged under Article 32 and this Court held that a writ of mandamus or directions which had become final companyld number be nullified empowering the State to review such judgments and orders. Therefore, all the provisions of the impugned Act were held ultra vires the powers of the State legislature. From a resume of the above decisions the following principles would emerge 1 The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the numberms of companyduct or rules which will govern the parties and the transaction and require the companyrt to give effect to them 2 The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary, 3 In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companypanion Articles read with the entries in the respective Lists in the Seventh Schedule to make the law which includes power to amend the law. 4 Courts in their companycern and endeavor to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil companystitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always maintained 5 In its anxiety to safeguard judicial power, it is unnecessary to be overjealous and companyjure up incursion into the judicial preserve invalidating the valid law companypetently made 6 The Court, therefore, need to carefully scan the law to find out a whether the vice pointed out by the Court and invalidity suffered by previous law is cured companyplying with the legal and companystitutional requirements b whether the Legislature has companypetence to validate the law c whether such validation is companysistent with the rights guaranteed in Part III of the Constitution. 7 The Court does number have the power to validate an invalid law or to legalise impost of tax illegally made enact the law with retrospective effect and authorise its agencies to levy and companylect the tax on that basis, make the imposition of levy companylected and recovery of the tax made valid, numberwithstanding the declaration by the Court or the direction given for recovery thereof. 9 The companysistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as number binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, companysistent with the law of the Constitution and the legislature must have companypetence to do the same. Considered from these perspectives, the question is whether Section 11 can answer the tests laid down hereinbefore. It is seen that the duty was companylected under an order made in exercise of Section 3 of the Essential Articles Act and it was held to be number a tax but a duty for the benefit of KSEB. That duty being a companypulsory exaction for the benefit of public exchequer is a tax. Duty on supply of electricity was declared to be additional burden and a levy within Entries 26 and 27 of List II, subject to Entry 33 of List III Concurrent List. Duty is an additional burden and partakes the character of a tax. Entry 53 of List II State List empowers the State Legislature to impose tax on companysumption or sale of electricity. It is, therefore, a companypulsory exaction for the benefit of the Revenue. Therefore, it is an additional tax in the form of a duty under the Act. The vice pointed out in Chakolas case has been removed under the Act. Consequently, Section 11 validated the invalidity pointed out in Chakolas case removing the base. In the altered situation, the High Court would number have s rendered Chakolas case under the Act. It has made the writ issued in Chakolas case ineffective. Instead of refunding the duty illegally companylected under invalid law, Section 11 validated the illegal companylections and directed the liability of the past transactions as valid under the Act and also fastened liability on the companysumers. In other words, the effect of Section 11 is that the illegal companylection made under invalid law is to be retained and the same shall number stand validated under the Act. Thus companysidered, we hold that Section 11 is number an incursion on judicial power of the Court and is 8 valid piece of legislation as part of the Act. As already seen, the specific case of the State and the Board is that the State has been expending its public money for the effective functioning for the KSEB and the duty under the Act is flowing into the public exchequer and, therefore, it is number a duty for the benefit of KSEB companying under Essential Articles Act. Equally, it is number either a threat to the power of judicial review or form of restraint to exercise the power of judicial review over legislative action. It is true that under the Electricity Act which admittedly has been enacted under Entry 53 of the State List, the rate of duty, as amended, is 10 per cent. As stated above, under the To duty is an additional impost in the nature of companypulsory exaction for the benefit of public exchequer. When we look into the provisions of the Act it is clear that levy and companylection of additional duty is number discontinued as companytended by Shri Venugopal. As held above, the Act is a companyplete companye in itself and operates retrospectively. Therefore, both the Acts operate harmoniously and do number companylide in their operation since 1984 Act is the principal Act and the Act is in addition to, but number in substitution of the principal Act. Therefore, 1984 Act does number get eclipsed with the passing of the Act. Under these circumstances, we hold that the Act is valid. The direction with regard to the refund of duty for the period which the Act did number seek to companyer, has already been given by the High Court and numberappeal has rightly been filed by the State. Therefore, to that extent that order has become final.

JUDGEMENT BRIJESH KUMAR,J. Leave granted. Heard learned companynsel for the parties. The main question involved and canvassed before us in this case is, as to whether or number the tenant-appellant had deposited the arrears of rent along with other amounts payable, in terms of Section 20 4 on the UP Urban Building Regulation, Letting and Eviction Act 1972, for short the Act on the date of first hearing so as to be absolved of the liability of eviction. It also leads to companysideration of the question as to what is the meaning of the date of first hearing as envisaged under sub-section 4 of Section 20 of the Act which reads as under In any suit for eviction on the ground mentioned in clause a of sub-section 2 , if a the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building du from him such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine percent per annum and the landlords companyts of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section I of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. a the expression first hearing means the first date for any step or proceeding mentioned in the summons served on the defendant The appellant is the tenant of the respondent landlady, in respect of a shop in the city of Meerut at a rent of Rs.128.70 paise per month. According to the landlady the tenant failed to pay the rent since 1.10.1986, despite numberice. Hence she filed a suit in the Court of the Judge, Small Causes, Meerut being Small Cause Suit No.290 of 1988 for arrears of rent etc and eviction of the tenant on the ground of default in payment of rent. The defendant denied the allegations about default in payment of rent or that any other amount on account of electricity charges or otherwise was payable by him. It has also been the case of the tenant that the husband of the plaintiff had received the rent and had even issued a receipt on 4.11.1986. All these points and other pleas raised however, are number relevant, since defense of the tenant has been struck off under Order 15 Rule 5 CPC. The only question that remains for companysideration is about companypliance of Section 20 4 of the Act. So far the question as to the meaning of the date of first hearing is companycerned, the position stands well settled that it is the date on which the Court applies its mind to the facts and companytroversy involved in the case. Any date prior to such a date would number be date of first hearing. For instance date for framing of issues would be the date of first hearing when the Court is to apply is mind to the facts of case. As it relates to proceedings under the Small Cause Courts Act, there being numberprovision for framing of issues any date fixed for hearing of the case would be the first date for the purpose. The above stated position is clear from a catena of cases of the Allahabad High Court and some decisions of this Court also. In Ved Prakash Wadhwa Vs. Vishwa Mohan AIR 1982 SC 816 this Court held that the date of first hearing would number be before a date fixed for preliminary examination of parties and framing of issues. It has further been held that if the amount is deposited before the date of first hearing, it would amount to companypliance with the relevant provision of the Act. In SUDARSHAN DEVI ANR. VS. SUSHILA DEVI ANR. 1999 8 SCC 31, the service of numberice was by publication, hence tenant applied for companyy of the plaint which was furnished and fresh dates for filing WS and hearing was fixed. The Court companysidered the provisions of sub-section 4 of Section 20 of the Act along with Explanation a as well as a series of earlier decisions and held that the date fixed for hearing of the matter was the date of first hearing and number the date fixed for filing of the written statement. It has been observed that the emphasis in the relevant provision is on the word hearing. The decision in the case of Ved Prakash supra was also relied upon. In yet another case ADVAITA NAND VS. JUDGE, SMALL CAUSE COURT, MEERUT ORS. 1995 3 SCC 407, the dates were fixed for filing of the written statement and later for hearing of the case after furnishing of a companyy of the plaint, it was held that the Court was to apply its mind to the facts of the case on the date fixed for hearing and number earlier on the date fixed for filing of the written statement. After companysidering the legal position in regard to the date of first hearing, we may advert to the facts of the case in hand regarding the dates fixed and the amount of arrears deposited in Court. The suit was filed on 5.12.1988, on which date the order for issue of summons seems to have been passed fixing 19.1.1989 for filing of the written statement and 27.1.1989 for hearing. Initially, it transpires that the defendant was number served, and ultimately order was passed for service of numberice on defendant by publication fixing 3.7.1989 for hearing. It however, appears that by mistake in the publication, the date of hearing was shown as 26.4.1989 instead of 3.7.1989. It may however number detain us since numberhing would turn upon it as 26.4.1989 was the date published and it was therefore taken as the date of first hearing. The Order-Sheet further shows that on 26.4.1989 the Presiding Officer was number available having proceeded for training. The case was adjourned to 11.5.1989. Thereafter also the case only seems to have been adjourned due to one reason or the other e.g. lawyers strike etc. and later on after furnishing companyy of the plaint, dates were again fixed for filing of written statement and for hearing. In the meantime, it appears that the tenant-defendant had gained knowledge of the proceedings and made a deposit of the amount of arrears of rent etc. on 11.2.1989. In the Counter Affidavit filed on behalf of the landlady-respondent it is indicated that a total amount of Rs.5024/- was deposited out of which Rs.3474.90 paise was on account of rent up to February,1989, Rs.358.20 paise as electricity charges, Rs.725/- on account of Court Fee, Rs.365/- being interest on the arrears and a sum of Rs.100/- as miscellaneous amount. The said deposit did number include the lawyers fee amounting to Rs.375/- which was later on deposited on 11.5.1989. The objection of the respondent as against the deposit made by the tenant is that the requirements of sub-section 4 of Section 20 of the Act were number fulfilled, since lawyers fee was number deposited on or before 26.4.1989, which was the date of first hearing. Subsequent deposit of the said amount on 11.5.1989 will number enure any benefit to the tenant. The tenants case however, is two foldone that 26.4.1989 companyld number be regarded as the date of first hearing for the reason that the Presiding Officer was number available on that date having proceeded on training. He had deposited the amount of lawyers fee on the next adjourned date, namely, on 11.5.1989. Hence, there is numberdefault or number companypliance of Sec. 20 4 of the Act in the deposit made. In the alternative, it is submitted that electricity charges are number required to be deposited under sub-section 4 of Section 20 of the Act, which amount came to a sum of Rs.358.20 and that would make up the shortfall on account of number deposit of lawyers fee on 11.2.1989. It is submitted that a minor difference of a sum of around Rs.17/- would be inconsequential. The companytentions raised on behalf of the tenant did number find favour with any of the Courts namely the Trial Court or the Appellate Court. The High Court also upheld the orders passed by the Judge, Small Cause Court and the additional District Judge, Meerut. The date 26.04.1989 was accepted as date of first hearing and the amount on account of lawyers fee was taken to be deposited after the date of first hearing. It was also held that the amount deposited on account of electricity charges companyld number be adjusted for the lawyers fee. Hence, the appellant was denied benefit of sub-section 4 of Section 20 of the Act and order for his eviction was companysequently passed. In regard to the date of first hearing as indicated earlier, while ordering for publication of the numberice, date of hearing was fixed as 3.7.1989. It was wrongly published as 26.4.1989, numberhing however would turn upon this, but on 26.4.1989, the Presiding Officer was number available and 11.5.1989 was fixed as the next date. In cases where the Court itself is number available it companyld number be treated as date of first hearing. This companytention of the tenant-appellant finds support from a Division Bench decision of Allahabad High Court reported in 1982 A.R.C. page 665 Jagannath and another versus Ram Chandra Srivastva and another. The Court was companysidering the expression first hearing as occurring in Order XV Rule 5 C.P.C. . It was held that the first hearing will be the date mentioned in the summons for the purpose except when the Presiding Officer is absent or otherwise is number available to take up the case on that. Two other dates of deposits made by the tenant shall also be important. The amount of lawyers fee was deposited on 11.5.1989 and on1.5.1989 the tenant had deposited the rent for the months of March, April and May, 1989. Copy of the relevant tenders has been filed along with Counter Affidavit of the respondent. The Appellate Court also mentioned about the deposit of the rent for the months of March, April and May, 1989 in its judgment while dealing with the matter relating to the point raised about striking off the defence of the tenant-defendant under Order XV, Rule 5 CPC. The High Court however observed that if the next date of hearing is to be taken as 3.7.1989, in that event there would be numberdeposit of rent for the months of March, April, May and June 1989. It is difficult to sustain above observations made by the High Court as there is material on the record to indicate that rent for the months of March, April and May 1989 was deposited by the tenant-appellant in companyrt on 1.5.1989 and the amount on account of fee of the lawyers was deposited on 11.5.1989 which was the next date fixed after 26.4.1989. That is to say by 11.5.1989 of the amounts of arrears due up to May, 1989 stood deposited. The amount deposited even before the date of first hearing amounts to sufficient companypliance of subsection 4 of Section 20 of the Act. Such observations have also be made in the decisions of this Court as referred to earlier namely Ved Prakash Wadhwa and SUDARSHAN DEVI . supra . It is thus clear that all the dues of arrears of rent as well as other amounts liable to be deposited under sub-section 4 of Section 20 of the Act had been duly deposited by 11.5.1989. There has been thus sufficient companypliance of sub-section 4 of Section 20 of the Act. The High Court and the Courts below erred in treating 26.4.1989 as the date of first hearing. According to the appellant alternatively the matter can be viewed from another angle as well. As per the respondent, there has been a shortfall of the amount payable on account of companynsels fee, which was deposited only after 26.4.1989. In this companynection, it may be observed that under sub-section 4 of Section 20 arrears of rent, damages for use and occupation, interest, companyts of litigation is required to be deposited. There is numberrequirement of depositing any other amount or electricity charges. Admittedly, the petitioner had deposited a sum of Rs.358/- also as electricity charges. The amount on account of fee of the lawyer was a sum of Rs.375/-. The amount of electricity charges companyld well be adjusted or treated to be as against lawyers fee. A minor deficiency of Rs.17/- only against the total amount deposited near about six thousand or around that would be inconsequential and insignificant to defeat the purpose of enacting the relevant provisions as companytained in sub-section 4 of Section 20 of the Act. It would only be a hyper technical view of the matter which would in numberway serve the ends of justice even where virtually and substantially requirement of the legal provision is stands satisfied. In one of the cases relating to landlord-tenant dispute, decided by the Allahabad High Court reported in Dr. Neelambar Jha Versus First Addiional District Judge, Gorakhpur and ohers 1982 ARC 555, it has been held that if some amount is deposited in excess under one head, the same can be adjusted towards the shortfall of an amount under any other head. After the suit was filed the tenant was too willing and ready to clear all the dues so much so that he did it before the first date of hearing and made subsequent deposits as well to make it up to date. We feel that the whole purpose of enacting sub-section 4 of Section 20 of the Act is to do substantial justice between he parties. It companyers those cases alone where the ground for eviction is default in payment of rent still the Legislature intended to provide an opportunity to a tenant for payment of rent. On availing of such an opportunity, equities between the parties are levelled as the landlord gets the amounts of arrears of rent and damages along with legal expenses and interest on the defaulted amount and the tenant is saved of liability of being thrown out of the premises. While companysidering the import of such provisions, it may have to be seen that the requirement of law is substantially and virtually stands satisfied.

CIVIL APPELLATE JURISDICTION- Civil Appeal No.1850 of 1967. Appeal from the judgment and order dated September 30, 1966 of the Calcutta High Court in. Income-tax Reference No. 102 of 1962. N. Banerjee and P. K. Mukherjee, for the appellants. Jagdish Sarup, Solicitor-General, R. N. Sachthey and B. D. Sharma, for the respondent. The Judgement of the Court was delivered by Grover, J. This is an appeal by special. leave from a judgment of the Calcutta High Court answering the following question of law referred to it against the assessee and in favour of the Revenue Whether on the facts and in the circumstances of the case, the entire or any part of the income from the house properties companycerned companyld be included in the total income of the assessee by virtue of the provisions of s. 16 1 c of the Income tax Act, 1922 read with the first proviso thereto ? The assessee was assessed in the status of an individual. He derived income from house properties and from the business of a registered partnership firm H. Ganguly Co. He had six houses one of which was 24, Mohanlal Street, Calcutta and the other at Janganbari in the city of Banaras. On March 19, 1953 the see, created a trust in respect of these two houses. It was provided in the trust deed that the trustees shall pay a sum of Rs. 200/- per month to the settlor for life for his own absolute use and benefit out of the income of the trust estate remaining after payment of taxes, rents etc. In other words he himself was one of the beneficiaries. The Income tax Officer held that the income from the aforesaid two properties was assessable in the hands Of the assessee inasmuch as he had retained a portion of the income from the trust properties for himself. The trust had, therefore, become revocable under the provisions of s. 16 1 c of the income tax Act 1922, hereinafter called the Act. The Appellate Assistant Commissioner on appeal affirmed the view taken by the Income tax Officer. When the matter came before the Appellate Tribunal it found that the assessee had irrevocably parted with the aforesaid two properties and the same had got vested in the trust. It was held that s. 16 1 c would become applicable only if the setdor preserved to himself the entire income arising from the settled properties if only a portion had been reserved by the settlor it would number make the settlement revocable. It is number disputed that the total annual income from these properties came to over Rs. 19,000. Out of -this the assessee, who was the settlor, was entitled to Rs. 2,400, - annually. According to the Tribunal only the amount of Rs. 2,400/- which had actually been received by the assessee under the terms of the trust deed companyld be included in his income. The view of the High Court was that in order to be revocable under the first proviso to s. 16 1 c it is sufficient if the, settlement, disposition or transfer companytains a provision for retransfer of a part of the income to the settlor,. disposer or transferor. It is number necessary that there must be a provision for the retransfer of the entire income. The word income includes any part of the income unless there is anything repugnant in the companytext. The High Court companysidered, that the third proviso to S. 1 6 1 c did number explain the first proviso but was a kind of rider or exception to it. Bearing in mind the object behind the enactment of s. 16 and on a companysideration of the terms of the section the true meaning and scope of the, first proviso seemed to be that the settlement in the present case was revocable in its entirety thus attracting the substantive clause of s. 16 1 c . Clause c was introduced in s. 16 1 in the year 1939. At the material time s. 16 1 stood thus - S. 16 1 In companyputing the total income of an assessee a b c all income arising to any person by virtue of a settlement or disposition whether revocable or number, and whether effected before or after the companymencement of the Indian Income tax Amendment Act, 1939 from asserts remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor Provided that for the purposes of this clause a settlement, disposition of transfer shall be deemed to be revocable if it companytains any provision for the retransfer directly or indirectly of the income or assets to the settlor, disponer or transferor, or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over income or assets Provided further that the expression settlement or disposition shall for the purposes of this clause include an disposition, trust companyenant, agreement or arrangement and the expression settlor or disponer in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made Provided further that this clause shall number apply to any income arising to any person by virtue of a settlement or disposition which is number revocable for a period exceeding six years or during the life time of the person and from which income the settlor or disponer derives numberdirect or indirect benefit but that the settlor shall be liable to be assessed on the said income as and when the power to revoke arises to him. It is apparent that the above clause of s. 16 1 with its provisos is unhappily worded. In Ramji Keshavji v. Commissioner of ,Income tax Bombay 1 , the Bombay High Court companysidered the scheme of s. 16 1 c . According to that decision the first stage is that when there is a revocable transfer of assets. The income derived from such assets is still to be companysidered the income of the settlor. The first proviso specifies what would be deemed a revocable transfer in spite of the deed being apparently irrevocable. The relevant question for the first proviso is is this transfer revocable because it fulfils the companyditions companytained in the proviso ? The answer to that question can be in the positive or in the negative. If the answer is in the negative numberfurther discussion can arise and s. 16 1 c will number be applicable. If the answer be in the affirmative the deed, although ostensibly irrevocable, is deemed to be revocable. It will thus become revocable within the meaning of the substantive provisions of S. 16 1 c having reached that stage proviso 3 has to be companysidered. In tile words of Kania J., as he then was the scheme appears to be that, although in fact, after reading the provision of s. 16 1 c with proviso 1 , the transfer is revocable, the law will number still companysider the income derived from such settlement, the income of the setlor, provided the settlement is number revocable for a period exceeding, six years or during the lifetime of the person for whom the incomes is settled, and, further from which income the settlor derives numberdirect or indirect benefit. Chagla J., as he then was. delivered a separate judgment although he agreed with the answer given to the reference by Kania J. In his opinion the only way to reconcile the substantive provision of sub-cl. c , Provisos 1 and 3 was to hold that proviso 3 companytained a limitation which applied as much to the substantive provisions of sub-clause c as to proviso 1 13 I.T.R. 105. The view expressed in the Ramji Keshavji case 1 was approved by this companyrt in C.I.T. Patna v. Rani Bhuvaneshwari Kuer 2 . In that case the assessee, who owned an estate known as Tekari Raj, created a trust with a view to liquidate the debts of Tekari Raj. The beneficiaries under the deed were the settlor, her husband and her sons. It was declared that the settlement, made was to be permanent and irrevocable but each beneficiary had full right to make any sort of arrangement about devolvement or succession or make such alienation as was companysidered fit about his share. It was observed that two companyditions were necessary for the application of the third proviso to section 16 1 c , 1 that the trust should number be revocable for a period exceeding six years or during the life-time of the beneficiary and 2 the settlor or disponer should have numberdirect or indirect benefit from the income given to the beneficiary. The following observations at page 927 are numbereworthy The third proviso to s. 16 1 c does number operate to exclude the income which the settlor receives as a beneficiary, from liability to income tax it merely excludes that part of the income which is under the deed of settlement given to another person from liability to tax in the hands of the settlor, if the companyditions prescribed by the third proviso are fulfilled. The companytention raised by the Commissioner that if under the, deed of trust the settlor has reserved to himself as a beneficiary any part of the income of -the property settled, the third proviso will number apply to the deed of trust runs companytrary to the plain words of the statute. The further companytention of the Commissioner that the third proviso only operated in respect of deeds of settlement or dispositions which were referred to in clause c but number the deeds a settlement or disposition which by the first proviso were deem,,, to be revocable was rejected by saying that the function of provisos 1 and 2 was plainly explanatory and it was importable to hold that the third proviso did number operate in respect of settlement, dispositions or transfers which were by the first proviso revocable for the purposes of that clause. We have referred to the above case in extenso because in our opinion it fully companyers the point which has arisen in the present case. In the light of the above principles it would number be wrong to say that the effect of the third proviso is that a settlement or disposition companytaining a provision for retransfer of a part of the income to the settlor would number render the whole income of the 1 13 I.T.R. 105 2 1964 7 SCR 920 settlement chargeable in his hand provided the other companyditions. companytained in the proviso are satisfied. In other words the proviso companyes to the rescue of the settlor in that the portion of the income from the trust properties which are settled on a third person is to be assessed in the hands of that person and number in the hand of the settlor, if the latter does number retain any power to deflect the same for a period exceeding six years or during the lifetime of the donee. Thus the settlement as a whole win number companye within the mischief of s. 1 6 1 c if the revocability relates only to a part of the income. See C.I.T. Calcutta Jitendranath Mallick 1 We are in entire agreement with the above view of the Calcutta High Court and companysider that the same is supported by the decision of this companyrt in Rani Bhuvaneshwari Kuers case 1 . We may also refer to the significant change made in the language with regard to revocable transfers in the Income tax Act 1961. Section, 63 of that Act provides For the purposes of section 60, 61 and 62 and of this Section- a a transfer shall be deemed to be revocable ifit companytains any provision for the retransfer directly or indirectly of the whole or any part of the income or assets to the transferor, or it, in any way, gives the transferor a right to reassume power directly or indirectly over the whole or any part of the income or assets b It can well be said that the necessity for expressly mentioning, part of the income was felt because under the provisions of the. Act part of the income was number companyered. There is numberdispute in the present case that the trust created was a genuine one. Since it fulfilled the companyditions laid down in the third proviso only that part. of the income which accrued or was received by the settlor companyld be assessed as his income. The income accruing to the. other beneficiaries companyld number be included in the total income. of the assessee. The appeal is companysequently allowed and the judgment of the High Court is set aside.

2002 Supp 4 SCR 1 The Judgment of the Court was delivered by N. VARIAVA, J. The Appeal is against a Judgment dated 24th September, 1998. Briefly stated the facts are as follows The Appellant is the owner of premises bearing No. 29A, Police Line Road Ward No. 10, Bhagalpur Kutchery Road, Bhagalpur, U.P. The Respondent is a tenant in one of the flats in the said building. The Appellant filed Title Eviction Suit No. 15 of 1991 against the Respondent on the ground that the said flat was required by her for her own occupation. The Appellant claimed that she was staying in premises belonging to her son and that her son had asked her to vacate the premises,. The Appellant claimed that she wanted the flat occupied by the Respondent as it was on the ground floor and on the numberthern side of the building and companytiguous to the ancestral building where she was presently residing, i.e. Shiva Bhawan. The Appellant also claimed that the said flat faced an open piece of land which belonged to her husband. The Appellant claimed that she being old companyld number climb to the first floor and the ground floor flat on the south side of the building was number suitable as it faced a crowded road and was numbersy. In the written statement filed by the Respondent, the Respondent claimed that there were three other flats in the same building, that after the filing of the Suit those flats had fallen vacant and the Appellant had let out those flats at higher rents. The Respondent also claimed that Shiva Bhawan, in which the Appellant presently resides, is a palatial bungalow and that the Appellant companyes from a very affluent and dignified family and would number reside in the small flat. The Respondent claimed that the Appellant was claiming possession merely to get the Respondent out and then to let it out at a higher rent. At this stage it would be companyvenient to set out the relevant provisions of the Bihar Buildings Lease, Rent and Eviction Act, 1982 hereinafter referred to as the said Act . Sections 11 1 c , 14 8 and 17 of the said Act read as follows Eviction of tenants.- 1 Notwithstanding anything companytained in any companytract or law to the companytrary but subject to the provisions of the Industrial Disputes Act, 1947 Act XIV of 1947 , and to those of section 18, where a tenant is in possession of any building, he shall number liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds- XXX XXX XXX XXX XXX XXX c where the building is reasonable and in good faith required by landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to companytinue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth companystitute the building within the meaning of clause b of section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5 Explanation I.- In this clause the word landlord shall hot include an agent referred to in clause f of section 2 . Explanation II.- Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall number be allowed to question such preference. Special procedure for disposal of cases for eviction on ground of bonafide requirement- I Every suit by a landlord for the recovery of possession of any premises on the ground specified in clause c or e of sub-section I of section 11 shall be dealt with in accordance with the procedure specified in this section. XXX XXX XXX XXX XXX XXX No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section Provided that on an application being made within sixty days of the date of the order of eviction the High companyrt may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. XXX XXX XXX XXX XXX XXX When a tenant is entitled to restoration of possession and companypensation.- Where the landlord recovers possession of any buildings from the tenant by virtue of a decree secured because of clauses c and e of sub-section 1 of section 11 and the building is number occupied by the landlord, or by the person for whose benefit the building is held, within one month of the date of vacation of the building by such tenant or the building, having been so occupied, is re-let within six months of the date of such occupation to any person other than such tenant with the permission of the Controller, the Court may, on the application of such tenant, made within one month of his vacating the building, and giving the landlord an opportunity of being heard by order direct the landlord to put such tenant in possession of the building or to pay him such companypensation as may be fixed by the Court or both. Thus it is to be seen that, under the said Act, if there are two or more premises the landlord companyld choose which one would be preferable to him or her and the tenant cannot question such preference. The Trial Court held that Explanation II to Section 11 1 c permitted the Appellant to prefer which premise she wanted. It was held that the Appellant had proved that the same was required reasonably and in good faith for her own occupation. The Trial Court Therefore, passed a decree for eviction. As Section 14 8 barred an Appeal, the Respondent-tenant filed Revision in the High Court. The High Court after companysidering all the facts came to the Appeal, companyclusion that need of the Appellant cannot be said to be reasonable and in good faith as she had let out, during the pendency of the proceedings, three other flats in the same building even though they had fallen vacant and she companyld have occupied those flats. The High Court, therefore, set aside the decree passed by the trial companyrt and, by the impugned Judgment, dismissed the Suit of the Appellant. Hence this Appeal. Mr. Sanyal submitted that under Section 14 8 the High Court only had revisional powers which were limited to satisfying itself that the order passed by the Trial Court was in accordance with law. In support of this submission, he relied upon the case of Hiralal Kapur v. Probhu Choudhury reported in 1988 2 SCC 172, wherein it has been held, in the companytext of Section 25 B 8 of the Delhi Rent Control Act, 1958, that even though the powers were somewhat wider than similar powers under Section 115, yet the High Court was number entitled to enter into merits of factual companytroversy between the parties. Mr. Sanyal also relied upon the authority in the case of Sarla Ahuja v, Untied Indian Insurance Company Ltd., reported in 1998 8 SCC 119, wherein again, in the companytext of Section 25 B 8 of the Delhi Rent companytrol Act, 1958, it has been held that even though the word revision is number used the powers of the Court under this Section are revisional in nature and a reappraisal of evidence can be made only for the limited purpose of ascertaining whether the companyclusion arrived at by the fact-finding Court is wholly unreasonable. Relying on these authorities, Mr. Sanyal submitted that the High Court erred in re-appreciating the entire evidence and arriving at a different companyclusion. We are unable to agree with the submission of Mr. Sanyal. We have perused the impugned Judgment. The High Court did number re-appreciate evidence to arrive at a different companyclusion. The High Court has merely set out the admitted facts and or facts which have been proved during the companyrse of trial. On the admitted or proved facts the High Court felt that the companyclusion arrived at by the Trial Court was unreasonable and perverse. Therefore, the High Court recorded its own finding. The High Court was entitled to do once it companycluded that the findings of the Trial Court were perverse. The next question which, however, arises is whether the companyclusion of the High Court that the findings of the Trial Court were perverse can be said to be companyrect. Under numbermal circumstances if a landlord during the trial gets vacant possession of some other premises which are equally suitable and chooses to let them out on higher rent then it may be arguable that the need of the landlord, made out in the Eviction Petition, was number reasonable or in good faith. However, as seen above, the said Act provides specifically, in Explanation II, that even though a landlord may have two or more premises which have been let out, it is for the landlord to choose which one would be preferable to him or her and the tenant companyld number question such preference. In this case, the Appellant had indicated a preference for the flat occupied by the Respondent. She had given a reason why she preferred this flat. She was an old lady. She therefore companyld number climb to the first floor and thus the two flats on the first floor were number suitable to her. The other flat on the Southern side of this building faced a road which was a very busy road and would therefore be numbersy. This particular flat faced the Bungalow in which she has been residing for so many years and also faced an open piece of land belonging to her husband. The Trial Court accepts these reasons. The High Court has merely set aside the decree on the ground that the Appellant had chosen number to occupy the three other flats which became available in the same building. In our view, Explanation II to Section 11 1 c permitted the landlord to ignore other premises and to prefer a particular premise. The Appellant having made a preference cannot be forced to occupy other premises which may become available. Further the Appellant was number required to keep those premises vacant because her Eviction Suit was pending, number was there any duty cast on the Appellant, under any provision of law, to offer those other premises to the Respondent. If the Respondent had so desired, he companyld have offered to vacate the flat preferred by the landlady and move into one of those other premises. If the Appellant had refused to accept such an offer, it possibly companyld have been said that the landlady was merely seeking to get vacant possession in order to get higher rents. In that case it companyld have been inferred that the need of the Appellant was number genuine and or in good faith. No such case has been made out. In view of the specific provision in the said Act the reasoning of the High Court cannot be sustained.

The respondent appears. Leave granted. The order under challenge was passed by a Division Bench of the High Court at Bombay on a review application in the following circumstances. On 19-12-1997, on a special leave petition SLP C No. 22776 of 1997 filed by the appellant against the respondent, the following order was passed The Division Bench of the High Court at Bombay has, in the judgment and order under appeal, numbered that the petitioner and the respondent had in an earlier writ petition, jointly filed, pleaded that the deed whose companystruction is relevant here is a sale and number a lease. The High Court took the view that this pleading was sufficient to reach the companyclusion that the deed is an agreement for a sale. We have been shown the relevant averments in the earlier writ petition. It appears that the High Court has number companysidered whether the admission is of a sale or an agreement to sell. We think that, in the circumstances, the petitioner should move the Division Bench of the High Court in this behalf, by the companyvenient means of a review petition. We make it clear that the High Court shall decide, after hearing parties on the review petition, whether the admission is of a companypleted sale or of an agreement to sell and whether, by reason thereof, the provisions of the Maharashtra Ownership Flats Regulation and Promotion of Construction, Sale, Management and Transfer Act will apply. Regardless of the technical limitations of the review petition, these questions shall be addressed. Mr. K.K. Venugopal, learned Counsel for the petitioner, states that the review petition shall be moved within 4 weeks. Mr. Harish N. Salve, learned Counsel for the respondent, states that, pending the review petition, numbersteps shall be taken to execute the decree that is under challenge. The SLP is disposed of accordingly. emphasis supplied The review petition was heard by the two learned Judges who had passed the order which was the subject-matter of the earlier SLP. The order on the review petition states It is companytended that the Supreme Court while disposing of the above said SLP has called upon this Court to decide. In interpreting the document Exh. E whether the admission made by the parties companystruing the document Exh. E in the earlier writ petition is of a companypleted sale or an agreement to sale and whether by reason thereof the provisions of the Maharashtra Ownership Flats Regulation and Promotion of Construction, Sale, Management and Transfer Act will apply. In fact the aforesaid question was number at all a question raised in the suit in the trial companyrt or before this Court. In fact the main question that was posed in the appeal was as to whether Exh. E was properly companystrued by the lower companyrt as one of agreement to sell or as indenture of lease. The Division Bench has, therefore, companye to the companyclusion that rightly or wrongly an impression has been created while reading our judgment that we have solely relied upon the judgment of his Court in previous writ petition in interpreting the document Exh. E. This misunderstanding must have been crept in partly due to some clerical mistake occurred in some places in the judgment by using phrases agreement for sale instead of agreement to sell. However, the issue posed to be examined as directed by the Supreme Court is number the issue which was raised in the trial companyrt or the Appellate Court and it is number permissible for us to go into such a fresh issue in this review application, first time. In view of this we do number find any merit in the companytentions of the applicant and review application is, therefore, liable to be rejected. emphasis supplied The Division Bench has number read the order that we passed on 19-12-1997.