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CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 499 of 1976. Appeal by Special Leave from the Judgment and Order dated 22-7-1975 of the Punjab Haryana High Court in Criminal Appeal No. 166/75 and Murder Reference No. 10/75. P. Sharma and M. S. Dhillon for the Appellant. K. Jain for Respondents Nos. 1 and 3 to 6. K. Kohli and R. C. Kohli for the companyplainant. The Judgment of the Court was delivered by SARKARIA, J.- This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal of the respondents hereinafter referred to as the accused was accepted and they were acquitted of the double-murder charge against them. The prosecution story narrated by Resham Singh W. 2 , who claims to be an eyewitness of the occurrence, runs as follows. Resham Singh P.W.2 used to live with his brother-inlaw, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema. One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party-men were tried therefor. At the trial, Hazara Singh deceased appeared as an eyewitness of that murder. The trial companyrt companyvicted Wasson Singh and his companypanions in that case. They went in appeal to the High Court. Pending the appeal the High Court enlarged Wasson Singh accused on bail. The occurrence number in question in the instant case took place when Wasson Singh was on bail. The lands of Avtar Singh, Mukhtar Singh and Harbhajan Singh accused respondents adjoin the lands of Hazara Singh deceased. Three or four days prior to the incident in question, the cattle of these accused persons trespassed on the land of Hazara Singh and damaged his companyton crop. Thereupon, a sharp altercation took place between Hazara Singh and Resham Singh on one side and Harbhajan Singh and Mukhthar Singh on the other. Gajjan Singh son of Gopal Singh resident of the village interceded and pacified the parties. Joginder Singh accused respondent is the brother of Mukhtar Singh accused respondent while Harbhajan Singh Respondent is their first companysin. Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh. On August 4, 1973 at about 3.30 p.m., Resham Singh W.2 . Resham Singh deceased son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot-path from the Bus Stand Amarkot to their hamlet. On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them. When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse. Baj Singh was armed with a pistol and the other five accused were armed with rifles. Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh. The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead. Resham Singh P.W.2 , Bachan Singh and Resham Singh deceased started running towards the ploughed fields. Meja Singh, Harbhajan Singh and Baj Singh chased them. Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle-shots. Baj Singh chased Resham Singh P.W. 2 and Bachan Singh P.W. 3 and fired at them with his pistol. When these two were running away, the other two accused also fired at them. Resham Singh and Bachan Singh, however, succeeded in escaping unhurt. Resham Singh W. 2 immediately reached the Bus Stand Amarkot, picked up his motor-cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report Ex. PE at 4.30 p.m. Police Sub- Inspector Bishambar Lal recorded the report of Resham Singh and sent a companyy of the same as a special report to the superior officers, including the Judicial Magistrate, First Class at Patti, who received the companyy of the F.I.R. at 6.30 p.m., on the same day. While running away from the spot Resham Singh P.W. 2 had left behind his shoe Ex. P-1 near the scene of murders. Sub-Inspector Bashambar Lal reached the scene of occurrence at 5.30 p.m. and started investigation. He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh deceased persons. He also took into possession blood-stained earth and other relevant articles lying near the two dead-bodies. He found two empty cartridge cases at the scene of Hazara Singhs murder. He took them into possession and sealed them into a parcel. He also seized two pairs of shoes lying at the spot. After his arrest, Mukhtar Singh accused was interrogated by the Investigating Officer on August 31, 1973. After making a statement, Mukhtar Singh accused, in the presence of witnesses, led the police to the discovery of the rifle Ex. P-7 and some live cartridges. The rifle and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion. After examination, the ballistic expert of the Forensic Science Laboratory, Chandigarh, reported vide Ex. P. 9 that the 303 fired cartridge, marked C, had been fired through the 303 rifle marked A by him. But numberdefinite opinion companyld be given regarding the linkage of the fired cartridge marked C, with the 303 rifle marked A due to lack of sufficient individual characteristic marks on C2. Joginder Singh accused was arrested on August 24, 1973 and Baj Singh accused on December 18, 1973. The post mortem examination of the dead-body of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m. The Doctor found five gun-shot injuries on his body. Two of these were wounds of entry, with everted margins on the back of the left chest. No charring was present on any of these gun-shot wounds. The death in the opinion of the Doctor was due to shock and haemorrhage resulting from gun-shot injuries on the chest which were sufficient to cause death in the ordinary companyrse of nature. On the same day, Dr. Gursharan Kaur companyducted the autopsy on the dead-body of Hazara Singh and found four fire-arm injuries, two of which were wounds of entry and two were wounds of exit. All these injuries were on the skull. They involved fracture of the skull and damage to the brain. These injuries had been caused with firearm and were sufficient to cause death instantaneously, in the ordinary companyrse of nature. At the trial, the main-stay of the prosecution was the testimony of the two eye-witnesses, Resham Singh P.W.2 and Bachan Singh P.W.3 . Examined under Section 342, Cr.P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye-witness of that murder and that he Wasson Singh was companyvicted by the Court of Session, but had been released on bail pending his appeal in the High Court. He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar. The plea of Baj Singh was one of plain denial of the prosecution case. He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh W.3 that Punjab Singh and his companypanions were acquitted in that case. Baj Singh added that he used to look after the defence of the accused in Puran Singhs murder case and that on account of this, he had been falsely implicated. He further stated that at the time of occurrence, he was residing in U.P. Meja Singh accused, also, denied the prosecution case. He stated that one Balkar Singh of Village Wan had been murdered. He Meja Singh used to look after the defence of Jarnail Singh his wifes brother, who was being tried for the murder of Balkar Singh that on account of this, the relation of the said Balkar Singh had, in companynivance with the companyplainant party, falsely implicated him in the instant case. The remaining accused, also, denied the circumstances appearing in evidence against them. The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh deceased, because the latter had appeared as an eye-witness against Wasson Singh in Ajit Singhs murder case. The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a quarrel between Hazara Singh deceased and Resham Singh P.W. 2 on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had trespassed on the land of the deceased and damaged his companyton crop and that on account of this illwill, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased. The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased. The trial Judge further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable companyroboration of the evidence of Resham Singh P.W. 2 . He accepted the evidence of Resham Singh and Bachan Singh. He further found that Sub-Inspector Bishambar Lal had tried to favour Joginder Singh accused by fabricating a numbere in his zimini at some subsequent stage. This numbere is to the effect, that Joginder Singh was, in fact, present irrigating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investigation by the Deputy Superintendent of Police. The trial Judge disbelieved the plea of alibi set up by Meja Singh accused. In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub-Inspector, that the rifle Ex. P-7 had been recovered from Mukhtar Singh accused. He, however, criticised the companyduct of Sub-Inspector Bishamber Lal in number sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due promptitude. In the result, the trial Judge held that Wasson Singh, Joginder Singh and Mukhtar Singh accused had fired their rifles at Hazara Singh deceased, and had caused his death. He therefore, companyvicted these three accused for the substantive offence under Section 302, Penal Code. He further held that the companymon object of the unlawful assembly companystituted by the six accused was to murder Hazara Singh deceased. He therefore, further companyvicted all the six accused under Section 302 read with Section 149, Penal Code, for the murder of Hazara Singh. The trial Judge found that the murder of Resham Singh did number appear to have been caused in prosecution of the companymon object of the said unlawful assembly. He therefore, companyvicted Baj Singh, Meja Singh and Harbhajan Singh accused only under Section 302 read with Section 34, Penal Code, for the murder of Resham Singh deceased and sentenced each of them to imprisonment for life and a fine of Rs. 200/-. In respect of the murder of Hazara Singh, Wasson Singh was sentenced to death, while each of the other five accused were sentenced to imprisonment for life and a fine. The trial Judge referred the case to the High Court for companyfirmation of the death sentence of Wasson Singh. All the accused, also appealed against their companyviction and sentences. The High Court allowed the appeal, declined the reference and rejected the evidence of the eye-witnesses, Resham Singh P.W. 2 and Bachan Singh P.W. 3 , for these reasons Both these witnesses are closely related to the deceased Hazara Singh, who was the principal target of the accused. ii a Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Singh deceased, it has number been satisfactory established by the prosecution that the other five accused had any motive to companymit the murders in question. Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh P.W. 2 on the other, has number been examined by the prosecution. There was numbermention about this earlier incident in the statement of Bachan Singh P.W. 3 before the police during investigation. Both Resham Singh and Bachan Singh, P.Ws. had earlier been involved in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police. On account of their antecedents, Resham Singh and Bachan Singh do number appear to be reliable people. The prosecution story is highly unnatural. The presence of these two eye-witnesses along with the deceased persons was unlikely. Had these witnesses been with Hazara Singh deceased, they would have been the target of attack after Hazara Singh was killed and number Resham Singh deceased against whom the accused had numbergrudge. Hazara Singh deceased, Bachan Singh and Resham Singh, P.Ws., all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together. Bachan Singhs version, that he had gone to Amarkot to make enquiries regarding the availability of diesel and on his return journey in the way, met and joined the companypany of his brother Hazara Singh deceased, and his companypanions, was number believable, because there was numberneed for Bachan Singh to have gone to Amarkot for the purchase of diesel as he companyld have asked Hazara Singh to make the necessary enquiries. There is a material inconsistency in the testimony of the two eye-witnesses as to when Hazara Singh deceased and Resham Singh P.W. 2 had left their behak hamlet . From the statement of Resham Singh P.W. 2 , it appears that from their behak they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh. As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, W. had left their behak for some unknown destination and that a day later they had met him at the adda, after their departure from the behak the previous day. This version companypletely belies the version of Resham Singh P.W. 2 that they had left their behak in order to make purchases of cloth and other articles. Another odd feature brought out from the evidence of Resham Singh P.W. 2 is the presence of motor-cycle at Amarkot on that day. It is surprising that he companyld afford to maintain a motorcycle from the meagre income that he would have got from his 5 or 6 acres of land. His explanation as to why he left the motor-cycle at Amarkot, is also number companyvincing. The investigation of the case companyducted by the Sub-Inspector Bishamber Lal P.W. 13 does number inspire companyfidence. The evidence relating to the recovery of empty cartridges vide Ex. P.G. and pair of shoes from the spot near the dead-body of Hazara Singh, was number reliable, because P.W. 13 did number mention about the presence of these articles in the inquest report Ex. PDZ . Though the empty crime cartridges recovered from the spot were sent to the ballistic expert earlier, they were returned to the Police Station on the plea that the test cartridges had number been sent along with those empties. Even if it was so, there was numberneed of sending the crime cartridges to the Police Station, as the test cartridges companyld be sent for through a separate letter. In this situation, the suggestion that the crime cartridge had been later on fired through rifle Ex. P7 when it was recovered cannot be companysidered improbable. On arrival at the scene of the incident, P.W. 13 found Joginder Singh accused at a distance of about 100 yards irrigating his field. According to Bishamber Lal, he interrogated Joginder Singh there and then, but did number arrest him. If Joginder Singh accused had been found near the scene of the crime within a short time, engaged in his numbermal activities, his participation in the crime would be highly improbable. Learned companynsel for the appellant vehemently companytends that the reasoning of the High Court is manifestly unsound, if number wholly perverse. Great emphasis has been laid on the fact that the First Information Report, in this case was lodged by Resham Singh PW 2 with utmost promptitude, and even its companyy had reached the Magistrate at about 6 or 6-30 p.m. at Patti, on the same day. In the First Information Report, proceeds the argument, all the material facts including the names of the accused and of the witnesses have been mentioned It is submitted that since this F.I.R. was made without delay in circumstances in which the informant had numbertime to companycoct a false story, it furnished valuable companyroboration of the evidence of Resham Singh P.W. 2 , and made his evidence safe enough to be accepted. It is further maintained that in the first place, the prosecution had established that Mukhtar Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companypanions of Wasson Singh accused had number been substantiated-as the High Court has held-then P.Ws. 2 and 3 had also numbermotive or animus to falsely implicate them. Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2. It is emphasised that the circumstance that the F.I.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singhs evidence in particular and the prosecution evidence in general. It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused serious aberration in its approach and vitiated its appreciation of the evidence of the eye-witnesses. On the other hand, Shri R. K. Jain, learned companynsel for the respondents, has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should number, in keeping with its practice, disturb the acquittal even if it feels inclined to hold that the view of the evidence taken by the trial companyrt is also reasonable. Shri Jain has further tried to support the reasoning of the High Court. We have carefully companysidered the companytentions canvassed on both sides. We are also number unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double-murder case. Even so, we find that the reasons given by the High Court for holding that Resham Singh P.W. 2 was number an eye-witness of these murders, are utterly unsustainable. The mere fact that Resham Singh P.W. 2 had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh P.W. 2 and Bachan Singh P.W. 3 , as to whether they had gone to Amarkot with Hazara Singh deceased on the very day of occurrence or a day earlier, was numberground for jumping to the companyclusion that P.W. 2 was number in the companypany of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead. The occurrence took place on August 4, 1973, While Resham Singh P.W. 2 and Bachan Singh P.W. 3 were examined at the trial on December 27, 1974, that is to say, 17 months after the incident. Such discrepancies in regard to companylateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and companysistency in regard to the substratum of the prosecution case. As rightly observed by the trial companyrt, Resham Singh P.W.2 was never crossexamined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night. The mere fact that P.W. 2 did number make any purchases at Amarkot companyld hardly be a reason to hold that his being in the companypany of Hazara Singh deceased at the material time, was improbable. It is companymon ground that there was numberlove-lost between Wassan Singh appellant and Hazara Singh deceased. Wassan Singh, though companyvicted by the trial companyrt for the murder of Ajit Singh, was released on bail by the High Court pending his appeal. P.W. 3 is the brother and P.W. 2 a relation of the deceased. All these three were living together in the same hamlet in the fields. It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh. It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh, P.W. 2 were arrested and handcuffed by Darshan Singh, Police Sub- Inspector on the allegation that they were indulging in smuggling and would be liquidated. Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and companyplained against the Police Sub- Inspector. Both were prosecuted for smuggling betel leaves across the border. It was therefore, number improbable that this trio companysisting of Hazara Singh deceased, P.W. 2 and W. 3 was, as usual, moving about or carrying on their activities together. Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail. This was an added reason for this troika to move about for their security, if number for anything else, in the companypany of each other. Nor companyld P.W. Bachan Singhs presence at the scene of crime be discounted and his evidence discarded merely on the score that there was numbernecessity for him to go to Amarkot for enquiring about the availability of diesel. There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye-witness of the occurrence. It is that the F.I.R. Ex. E. was lodged by him at Police Station Valtoha, so promptly that he had practically numbertime to spin out a false story. The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh P.W. 2 and Sub- Inspector Bishamber Lal P.W. 13 , who was then Station House Officer, Valtoha, to the effect, that the F.I.R. Ex. E. , was recorded in the Police Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot. According to Resham Singh, the occurrence took place at about 3.30 p.m. On seeing the occurrence and after eluding the pursuit, Resham Singh, as he says, ran to Adda Amarkot through the fields companyering a distance of about one kilometre. According to P.W. 2, his motor-cycle was lying at a shop in Amarkot. He picked up his motor-cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there. The endorsement on Ex. PE, bears out that the companyy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m. This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh P.W. 2 at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay. The learned Judges of the High Court have number at all dealt with the F.I.R. or the promptitude with which it was made. They doubted Resham Singhs version that from Amarkot he went on his own motorcycle to Valtoha Police Station. The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and companyld number acquire and maintain a motorcycle from the income of his petty holding. However, this was number the defence case. In cross-examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan. Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income. It was, therefore, numberhing improbable if Resham Singh owned a motor-cycle. Sub-Inspector Bishamber Lal P.W. 13 was number questioned in cross-examination as to whether or number Resham Singh had companye to the Police Station on a motor-cycle. He W. 13 was however, questioned as to what transport he had used for going from the Police Station to the scene of murders. The witness replied that he went on a motor-cycle upto Amarkot and from there went on foot to the scene of occurrence. Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had became muddy and unsafe for riding a motorcycle because of the high risk of skidding. That was why, the witness had left the motor-cycle at Adda Amarkot with a shopkeeper. It may be numbered that the occurrence took place on August 4, 1973 when the rainy season would be in full swing. This explanation of Resham Singh P.W. 2 regarding the kacha path from Amarkot to the scene of occurrence, being numbermotorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of Bishamber Lal P.W. 13 , that he had to companyer the distance from Adda Amarkot to the place of occurrence, on foot. Thus, the reason employed by the High Court for disbelieving the version of Resham Singh P.W. 2 regarding his owning and going on a motor-cycle from Amarkot to Police Station Valtoha was manifestly unsound. It was argued before the trial companyrt on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh P.W. 2 was about 400 or 500 yards away in his hamlet, and that on hearing the report of gunfire he was attracted to the scene of crime, and he having seen the dead-bodies lying there, went home, took his motorcycle and then drove to the Police Station Valtoha and brought Sub-Inspector Bishamber Lal to the scene of occurrence and the Sub-Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others. This companytention was rightly rejected by the trial companyrt. As observed earlier, since it had rained a day prior to the occurrence, the kacha path from Amarkot to the scene of occurrence and to the hamlet of the deceased must have been muddy and slippery. Therefore, the very suggestion that from village Ban to Amarkot and thereafter to Valtoha, Resham Singh went on his motor-cycle, was improbable. Moreover, from the companyduct of the Investigating Officer, Bishamber Lal, it appears that he was number favourably disposed towards the deceased and the informant. Indeed, a suggestion was put to Bishamber Lal P.W. 13 by the Public Prosecutor, that he has been unfair in the investigation of the case and tried to favour Joginder Singh and Meja Singh accused. The learned trial Judge found that the investigation companyducted by Sub-Inspector Bishamber Lal was biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub-Inspector fraudently interpolated a numbere in his zimini to help Joginder Singh accused. The High Court has, also, found that this numbere in the zimini was a fraudulent insertion. This being the case, Sub-Inspector Bishamber Lal would be least disposed to join hands with Resham Singh informant in preparing the First Information Report, after deliberation with him P.W.2 at the spot. Dr. Gursharan Kaur P.W. 1 who performed the postmortem examination of the dead-bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post-mortem examination was about 18 hours. Thus, according to the Doctors opinion, also, the deaths took place at about 2 or 3 p.m. on August 4, 1973. The opinion of the medical witness thus companyroborated the version of Resham Singh P.W. 2 in as much as the latter has testified that the murders took place at about 3.30 p.m. This means, that the statement of Resham Singh P.W. 2 in the First Information Report was made without undue delay, and, as such, furnished very valuable companyroboration of his testimony at the trial, in all material particular. If the presence of Resham Singh P.W. 2 and Dalip Bachan Singh P.W. 3 at the time and place of murders was probable the further question would be, how far their evidence companyld be safely accepted against each of the accused persons ? It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses. Their antecedents, also, are of a questionable nature. But their antecedents or mere interestedness was number a valid ground to reject their evidence. Persons with such antecedents are number necessarily untruthful witness. Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each or the accused. An effort should have been made to sift the grain from the chaff to accept what appeared to be true and to reject the rest. The High Court did number adopt this methodology in appreciating their evidence. Instead, it took a short-cut to disposal, and rejected their evidence whole-sale against all the accused, for reasons which, as already discussed, are manifestly untenable. Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused. Excepting the immaterial discrepancies companysidered earlier, the evidence of P.W. 2 and P.W. 3 was companysistent, and their presence as already mentioned, at the time and place of murders was probable. Even so, as a matter of abundant caution, it will be safe to act on their interested evidence to the extent to which some assurance is companying forth from surrounding circumstances or other evidence. The story narrated by the eye-witnesses, Resham Singh and Bachan Singh is that Wasson Singh, Mukhtar Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased as a result of which he dropped dead at the spot. The evidence of the Doctor who performed the autopsy on the dead-body of Hazara Singh is to the effect that there were two bullet wounds of entry on the left side of the head. These wounds were located at a distance of 2-1/2 cms. from each other. There were two companyresponding wounds of exit. There was numberblackening or charring around these wounds of entry. This indicates that these injuries were caused by bullets fired almost simultaneously from two separate rifles from a distance beyond 6 feet. This means at least the rifles fired by two of the three aforesaid accused did find their mark, causing instantaneous death of the deceased. Now, both the companyrts below have companycurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased. This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh W. 2 and Bachan Singh P.W. 3 and make it a safe basis for companyvicting Wasson Singh accused for the murder of Hazara Singh. The trial companyrt had accepted the evidence of Resham Singh P.W.2 in regard to the quarrel over cattle trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh and Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other. This story finds particular mention in the F.I.R. Ex. PE which was lodged by P.W. 2 without undue delay. The High Court has rejected this story about this previous quarrel on the three-fold ground, namely a Gajjan Singh who interceded and pacified the parties has number been examined, b No evidence of the extent of damage done to the crop or of any companyplaint made to village Panchayat has been produced, c Bachan Singh P.W.3 , did number mention about this earlier incident in his police statement. In our opinion, numbere of these was a valid ground for rejecting the evidence of Resham Singh P.W.2 in regard to this incident. Resham Singhs companysistent testimony on this point companyroborated by the F.I.R. Ex. PE was sufficient to establish this fact beyond doubt. Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in killing Hazara Singh. The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the testimony of Resham Singh P.W.2 and Bachan Singh P.W.3 , and strengthens the inference of guilt against the said accused, also. It is in the evidence of Sub-Inspector Bishamber Lal W.13 that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul Singh Constables, that he had kept companycealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the companyrtyard of his house at village Thathiwala and he companyld get the same discovered. P. W. 13 recorded that statement Ex. P 1 . Thereafter, the accused was taken to village Thathiwala where he led the Sub-Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle Ex. P7 and the cartridges Ex. P8 to 12 therefrom. The Sub-Inspector prepared the sketch of the rifle and the memo Ex. PM which was attested by the aforesaid Constables. The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Singh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh P.W. 10 . W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges Ex.P3 and Ex. P4 from near the dead-body of Hazara Singh. The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses, and prepared the memo Ex. PG . The parcel companytaining the empties was later deposited by the Sub-Inspector, with seals in tact, in the Malkhana of the Police Station. The evidence of Sub-Inspector Bishamber Lal, with regard to the seizure of the empty crime cartridges from the scene of occurrence on August 4, was supported by Anokh Singh P.W.4 who is an attesting witness of the memo, Ex.PG. The witness is a resident of village Cheema. In cross-examination, he revealed that these two fired cartridges were lying at a distance of 1.5 karams 8 or 9 feet from the dead-body of Hazara Singh. Nothing was brought out in cross-examination to show that the witness was in any way interested in the prosecution or was related to the deceased or had any animus against the accused. Thus, it has been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station. In the memo Ex. PG , it is mentioned that these fired cartridges were of 303 bore rifle. Ajit Singh Moharrir Head Constable P.W.11 swore in his affidavit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub-Inspector Bishamber Lal. The seals on the parcel remained intact so long as the parcel remained in his custody. Then, there are the affidavits of Avtar Singh Constable W. 9 and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels companytaining the rifle Ex. P7 and the five live cartridges were sent through P.W. 9 to the Forensic Science Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact. The evidence of P.W. 13 regarding the discovery of the rifle Ex. P7 from Mukhtar Singh accused was fully companyroborated by Constable Sardul Singh P.W. 12 . His crossexamination reveals that Mukhtar Singh was interrogated in the Police Station at 4-5 A.M. when he made the statement Ex. PL , leading to the discovery of the rifle Ex. P7 . Sub-Inspector Bishamber Lal P.W. 13 has stated that the sealed parcel companytaining the empty cartridges, that had been found at the scene of crime, was sent to the Forensic Science Laboratory Chandigarh at a date earlier than the one on which the parcel companytaining the rifle Ex. P7 and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been sent along with the test cartridges. Consequently, this parcel companytaining the empties was again sent to the Forensic Laboratory along with the sealed parcel companytaining the rifle Ex. P7 and the live cartridges recovered from Mukhtar Singh accused. In the Report Ex. PQ of the Ballistic Expert L. A. Kumar which was tendered in evidence and admitted without objection, it is opined that the empty crime cartridge, marked C1, had been fired through the rifle Ex. P7 . In cross-examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel companytaining the empty cartridges from the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifle Ex. P7 . The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle Ex. P7 was substituted for the original empty cartridge that had been found at the scene of murder. The Sub-Inspector emphatically denied the suggestion. It was further suggested to P.W. 13 that the rifle Ex. P7 had, in fact, been handed over to the Police by the relations of the deceased after procuring it from some source. This was also stoutly denied by P.W. 13. The learned trial Judge discarded this evidence relating to the discovery of the rifle Ex. P7 at the instance of the accused, Mukhtar Singh, for the reason that Sub-Inspector Bishamber Lal, for numbergood reason, had failed to join respectables of the locality to witness the discovery of the rifle, and that he P.W. 13 has tried to be a defence witness rather than the investigating officer. The trial Judge accepted Anokh Singhs statement regarding the recovery of the two fired cartridges from the scene of Hazara Singhs murder on August 4, but he adversely companymented on the companyduct of Bishamber Lal in delaying the despatch of those crime cartridges to the Forensic Science Laboratory Chandigarh till after the recovery of the rifle. He observed In all probability, Sub-Inspector Bishamber Lal wanted to help the accused by creating suspicion with respect to the identity of the firing impressions on the empties . For this reason, according to the trial Judge, the ballistic evidence will number be companyroborative evidence for the prosecution. We agree with the trial Court that the investigating officer did number deliberately join with him respectables of the locality to attest the statements Ex. PL made by Mukhtar Singh, and to witness the sub-sequent discovery of the rifle Ex. P7 at the instance of Mukhtar Singh. There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused. If that was so, the failure of Bishamber Lal P.W. 13 to join with him respectables of the locality was, by itself, numberground for ruling out the evidence of the discovery of the rifle, altogether. The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to companylaborate or companyperate with the relations of the deceased to procure this rifle Ex. P7 from some other source and then foist it on Mukhtar Singh. For the same reason, it is number possible to hold that he recalled the sealed parcel companytaining the fired crime cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle Ex. P7 or for fabricating evidence in support of the prosecution. Moreover, the parcel companytaining the two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and number at the instance of the Sub- Inspector P.W. 13 . The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does number render it inadmissible. Although a suggestion of planting the rifle, and fabricating the evidence of the empty cartridge C1 was put to Sub-Inspector Bishamber Lal in cross-examination, numbersuch allegation was made, number any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle Ex. P7 at his instance and the opinion Ex. PQ of the Ballistic Expert was put to this accused in his examination under Section 342, Cr. P.C. The circumstance of the recovery of the rifle Ex. P7 and the opinion of the Ballistic Expert that the empty cartridge marked C1 found on August 4, at the scene of murder had been fired through the rifle Ex. P7 ,- though feeble it might be-was relevant and furnished a further pointer to the participation of Mukhtar Singh in the companymission of Hazara Singhs murder by rifle-fire. In sum, sufficient assurance of the testimony of P.W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh. The evidence of the eyewitnesses therefore, companyld safely be acted upon for companyvicting Wasson Singh and Mukhtar Singh accused-respondents for the murder of Hazara Singh. But such assurance of the evidence of these eyewitnesses was number available against the remaining accused regarding either of the murders in question. Joginder Singh accused admittedly was number present when the quarrel over cattle trespass took place between Hazara Singh deceased and W. 2 on one side, and Mukhtar Singh and Harbhajan Singh accused on the other. It has neither been alleged number proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased. Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effectthat when he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he P.W. 13 interrogated him there and then, but did number think it necessary to arrest him,-is necessarily false. The absence of motive, and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in numbermal agricultural activities does cast a doubt about his participation in the companymission of these murders. W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead. The surrounding circumstances, natural probabilities and the numbermal companyrse of human companyduct also suggest the same inference, that immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives. Had they tarried for a while at the scene of Hazara Singhs murder, it would have been too late for them to escape unhurt. In such a situation, when they were being pursued by persons armed with fire-arms, they companyld, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased. That is why, Resham P.W. 2 is number companysistent in his statements as to which of the accused had fired at him when he was running away for his life. Moreover, it has number been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased. For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused respondents and companyvict them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh deceased and sentence each of them to imprisonment for life. We would, however, accord the benefit of doubt to the rest of the accused respondents and maintain their acquittal on all the companynts. Wasson Singh and Mukhtar Singh shall surrender to their bail-bonds to serve out the sentences inflicted on them.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 443 of 1993. From the Judgment and Order dated 22.4.92 of the Calcutta High Court in Crl. Revision No. 800/92. K. Sen, S.C. Ghosh, Rajiv K. Dutta and B.B. Tawakley for the Appellant. Amlan Ghosh and Ranjan Mukherjee for the Respondents. The Judgment of the Court was delivered by MOHAN, J. leave granted. The appellant herein was, married to second respondent on 16th January, 1990 according to Hindu Rites and Customs. They lived together for sometime until second respondent left the matrimonial home to reside with her parents in order to prepare for Higher Secondary Examination which companymenced on 5.4.90 and companytinued upto 10.5.90. In the month of April, 1990 she companyceived, on companying to know that she was pregnant, the appellant and the family members did number want her to beget a child. Therefore she was forced to undergo abortion which was refused by the second respondent. During the stay She was meted out cruetreatment both physically and mentally. She came back to the matrimonial home during Durga Pooja in the month of October, 1990. A female child was born on 3.1.91. She filed a petition under section 125 Cr. P.C. before the Learned Chief Judicial Magistrate, Alipore in Misc. Case No. 143 of 1991 both for herself and the child. By an order dated 14.8.91 which was passed ex-parte he awarded a sum of Rs. 300 per mansum to the mother and Rs. 200 to the child. Against that order, he moved a revision to the High Court. That revision is pending as 1837 of 199 Thereafter the petitioner filed a Crl. Misc. Case No. 143 of 1991 for blood group test of the second respondent and the child. In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was number the father of the child. According to him if that companyld be established he would number be liable to pay maintenance. That application was dismissed on two grounds i there were other methods in the Evidence Act to disprove the paternity ii moreover it is settled law that medical test cannot be companyclusive of paternity. Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision it was held that section 112 of the Evidence Act says where during the companytinuance of valid marriage if a child is born that is a companyclusive proof about the legitimacy. This section would companystitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test. The English law permitting blood test for determining the paternity of legitimacy companyld number be applied in view of section 112 of the Evidence Act. Therefore it must be companycluded that section 112 read with section 4 of the said Act debars evidence except in cases of number-access for disproving the presumption of legitimacy and paternity. It is the companytention of Mr. Ashok Sen, learned companynsel for the appellant that the only way for the father to disprove the paternity is by blood group test. Having regard to the development of medical jurisprudence to deny that request to the appellant will be unreasonable. As a matter of fact, in England, this is companymonly resorted to as it will leave numberroom for doubt. In 1968 1 All England Reports p. 20 Re. 1 it was held that even without the companysent of the guardian ad litem, the companyrt had power to order an infant be subjected to a blood group test. There is numberjustification for the companyrt below to refuse the same on the ground that section 112 of the Evidence Act would be an obstacle in seeking relief of blood group test. Before we deal with the arguments, we will examine the law as available in England. At the beginning of the century scientists established that human blood had certain characteristics which companyld be genetically transmitted. The first recognised system was ABO blood group. The blood group of a child is determined by the parents genetic makeup but the number of possibilities is such, that it is number possible to prove that certain individuals are the father on the basis of companyparing blood groups, only, that they are number the father. By 1930s other immunological test became available. As a result the possibility of establishing paternity increased. An attempt by way of statutory provision to make blood test companypulsory in En-land failed in 1938. However, in 1957 the Affiliation Proceedings Act was passed. Under that Act, it was assumed that a man was the father once a sexual relationship with the mother at the time of companyception was proven unless he companyld show another man had intercourse with her at that time. Failing the fathers attempt, the mothers evidence had to be companyroborated by facts such as blood test etc. Under the Act either party companyld ask for a blood test and either was entitled to refuse to take part, although only the mother can apply for maintenance. The Family Reforms Act, 1969 companyferred powers on the companyrt to direct taking blood test in civil proceedings in paternity cases. Courts were able to give directions for the use of the blood test and taking blood samples from the child, the mother and any person alleged to be the father. Since the passing of 1969 Act the general practice has been to use blood tests when paternity is in issue. However, it is to be stated the companyrt cannot order a person to submit to tests but can draw adverse inferences from a refusal to do so. Now under the Fan-lily Reforms Act, 1987 in keeping with modern thinking on the companytinuing and shared responsibility of parenthood, parentage rather than paternity has to be determined before the companyrt. Fathers as well as mothers can apply for maintenance. Therefore companytests can include mothers denial of paternity. This Act finally removed the legal aid for companyroboration of mothers statement of paternity. Two cases may be usefully referred to Re L Lord Denning R. 1968 All England Reports p. 20 stated thus but they can say positively that a given man cannot be the father, because the blood groups of his and the child are so different. emphasis supplied . In B.R.B. v. J.B. 1968 2 All England Reports 1023 applied this dictum and held as under- The Country companyrt judge will refer it to a High Court Judge as a matter suitable for ancillary relief, and the High Court Judge can order the blood test. Likewise, of companyrse, a magistrates companyrt has numberpower to order a blood test against the will of the parties. The magistrate can only do it by companysent of those companycerned, namely, the grown-ups and the mother on behalf of the child but, nevertheless, if any of them does number companysent, the magistrate can take that refusal into account1 adhere to the view which expressed in Re L. that 6 If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the companyrt in any civil proceedings numbermatter whether it be a paternity issue or an affiliation summons,or a custody proceedings to take his refusalas evidence against him, and may draw an inference there from adverse to him. This is simple companymon sense. The companyclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child. The judges can be trusted to exercise this discretion wisely. I would set numberlimit, companydition or bounds to the way in which judges exercise their discretion. To object of the companyrt always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should number hesitate to use those means whenever the occasion requires. Having heard full argument on the case, lam satisfied beyond any reasonable doubt to use the expression used in rebutting the presumption as to legitimacy that LORD DENNING, M.R., was right in saying that such an order may be made in any case where the child is made a party to the proceedings and in the opinion of the judge of the High Court it is in the childs best interests that it should be made. As regard United States the law as stated in Forensic Sciences edited by Cyril H. Wecht is as under- Parentage testing is the major but number the exclusive involvement of forensic serology in civil cases. The majority of disputed parentage cases involve disputed paternity, although an occasional disputed maternity, or baby mix-up case does arise, and can be solved using the tools of forensic serology described in this chapter. Blood typing has been used to help resolve paternity cases since the mid- 1920s. According to Latters, there were 3,000 cases tested in Berlin in 1924, and Schiff and Boyd said that the first case went to companyrt in Berlin in 1924. Ottenberg, in this companyntry published paternity exclusion tables in 192 1, as did Dyke in England in 1922. It took somewhat longer to satisfy the companyrts, both in Europe and in companyntry, that parentage exclusions based upon blood grouping were companypletely valid. Wiener said that he had obtained an exclusion in a paternity case in this companyntry which reached the companyrts early in 1933. In January of 1934, Justice Steinbrink of the New York Supreme Court in Brooklyn ordered that blood tests be performed in a disputed paternity action, using a precedent a decision by the Italian Supreme Court of Cassation, but his order was reversed upon appeal. Soon afterward, however, laws were passed in a number of states providing the companyrts with statutory authority to order blood testing in disputed paternity cases. Paternity testing has developed somewhat more slowly in the Unitted States than in certain of the European companyntries, but today the differences in the number of systems employed, and judicial acceptance of the results, are numberlonger that great. A number of authorities have recently reviewed the subject of paternity testing in some detail, and in some cases have summarized the results of large number of cases that they have investigated. Walker points out that failure to exclude a man, even at the 95 percent level of paternity exclusion does number mean that the alleged father is proven to be biologic father, because absolute proof of paternity cannot be established by any known blood test available. Although this fact is well known and appreciated by workers it , the field of blood grouping and by attorneys active in this area, it is number generally understood by the lay public. However, blood group serology, using proven genetic marker systems, represents the most accurate scientific information companycerning paternity and is so recognised in the United States, as well as in a number of companyntries abroad. In India there is numberspecial statute governing this. Neither the Criminal Procedure Code number the Evidence Act empowers the companyrt to direct such a test to be made. In 1951 1 Madras Law Journal p.58O Polavarapu Venkteswarlu, minor by guardian and mother Hanwnamma v. Polavarapu Subbayya in that case the application was preferred under section 151 of the Code of Civil Procedure invoking the inherent powers of the Court to direct a blood test. The learned judge was of the following view- Section 15 1, Civil Procedure Code, has been introduced in to the Statute book to give effect to the inherent powers. of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v. Kamalan and Singh. Such powers can only be exercised ex debito justice and number on the mere invocation of parties or on the mere volition of companyrts. There is numberprocedure either in the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind sought to be taken by the defendant in the present case. It is said by Mr. Ramakrishna for the respondent before m that in England this sort of test is resorted to by Courts where the question of number-access in companynection with an issue of legitimacy arises for companysideration. My attention has been drawn by learned companynsel to page 69 of Taylors Principles and Practice of Medical Jurisprudence, Volume 2, where it is stated thus In Wilson v. Wilson, Lancet 1942 1. 570, evidence was given that the husbands group was OM, that the wifes was BM and that the childs was ABN. The Court held that the husband was number the father of child, and granted a decree for nullity. It is also pointed out by learned companynsel that in the text books on Medical Jurisprudence and Toxicology by Rai Bahadur Jaising P. Moi, 8th Edition , at page 94, reference is made to a case decided by a Criminal Court at Mercare in June, 194 1, in which the paternity and maternity of the child being under dispute, the Court resorted to the results of the blood grouping test. That may be. But I am number in any event satisfied that if the parties are unwilling to offer their blood for a test of this kind this Court can force them to do so. The same view was taken by the Kerala High Court in Vasu v. Santha 1975 Kerala Law Times p. 533 as A special protection is given by the law to the status of legitimacy in India. The law is very strict regarding the type of the evidence which can be let in to rebut the presumption of legitimacy of a child. Even proof that the mother companymitted adultery with any number of men will number of itself suffice for proving the illegitimacy of the child. If she had access to her husband during the time the child companyld have been begotten the law will number companyntenance any attempt on the part of the husband to prove that the child is number actually his. The presumption of law of legitimacy of a child will number be lightly repelled. It will number be allowed to be broken or shaken by a mere balance of probability. The evidence of number-access for the purpose of repelling it must be strong, distinct, satisfactory and companyclusive see Morris v. Davies, 1837 5 Cl. Fin. 163. The standard of proof in this regard is similar to the standard of proof of guilt in a criminal case. These rigours are justified by companysiderations of public policy for there are a variety of reasons why a childs status is number to be triffled with. The stigma of illegitimacy is very severe and we have number any of the protective legislations as in England t protect illegitimate children. No doubt, this may in some cases require a husband to maintain children of whom he is probably number their father. But, the legislature alone can change the rigour of the law and number the companyrt. The companyrt cannot base a companyclusion on evidence different from that required by the law or decide on a balance of probability which will be the result if blood test evidence is accepted. There is an aspect of the matter also. Before a blood test of a person is ordered his companysert is required. The reason is that this test is a companystraint on his personal liberty and cannot be carried out without his companysent. Whether even a legislature can companypel a blood test is doubtful. Here numberconsent is given by any of the respondents. It is also doubtful whether a guardian ad litem can give this companysent. Therefore, in these circumstances, the learned Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2 and 3. The learned Judge is also companyrect in holding that there was numberillegality in refusing a blood test. The maximum that can be done where a party refuses to have a blood test is to draw an adverse inference see in this companynection Subayya Gounder v. Bhoopala, AIR 1959 Madras 396, and the earlier decision of the same companyrt in Venkateswarlu v. Subbayya AIR 1951 Madras 910. Such an adverse inference which has only a very little relevance here will number advance the appellants case to any extent. He has to prove that he had numberopportunity to have any sexual intercourse with the 1st respondent at a time when these children companyld have been begotten. That is the only proof that is permitted under S. II 2 to dislodge the companyclusive presumption enjoined by the Section. In Hargavind Soni v. Ramdulari AIR 1986 MP at 57 held as- The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by Courts as a circumstantial evidence. But numberperson can be companypelled to give a sample of blood for blood grouping test against his will and numberadverse inference can be drawn against him for this refusal. Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by companyrts as a circumstantial evidence which ultimately excludes a certain invididual as a father of the child. However, it requires to be carefully numbered numberperson can be companypelled to give sample of blood for analysis against her will and numberadverse inference can be drawn against her for this refusal. In Raghunath v. Shardabai 1986 AIR Bombay 388, it was observed blood grouping test have their limitation, they cannot possibly establish paternity, they can only indicate its possibilities. In Bhartiraj v. Sumesh Sachdeo Ors., 1986 AIR Allahabad 2591 held as- Discussing the evidentiary value of blood tests for determining paternity, Rayden on Divorce, 1983 Vol. 1 p. 1054 has this to say Medical Science is able to analyse the blood of individuals into definite groups and by examining the blood of a given man and a child to determine whether the man companyld or companyld number be the father. Blood tests cannot show positively that any man is father, but they can show positively that a given man companyld or companyld number be the father. It is obviously the latter aspect the proves most valuable in determining paternity, that is, the exclusion aspect for once it is determined that a man companyld number be the father, he is thereby automatically excluded from companysiderations of paternity. When a man is number the father of a child, it has been said that there is at least a 70 per cent chance that if blood tests are taken they will show. positively he is number the father, and in some cases the chance is even higher between two giver men who have had sexual intercourse with. the mother at the time of companyception, both of whom undergo blood tests, it has likewise been said that there is a 80 per cent chance that the tests will show that one of them is number the father with the irresistible inference that the other is the father. The position which emerges on reference to these authoritative texts is that depending on the type of litigation, samples of blood, when subjected to skilled scientific examination, can sometimes supply helpful evidence on various issues, to exclude a particular parentage set up in the case. But the companysideration remains that the party asserting the claim to have a child and the rival set of parents put to blood test must establish his right so to do. The companyrt exercises protective jurisdiction on behalf of an infant. In my companysidered opinion it would be unjust and number fair either to direct a test for a companylateral reason to assist a litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity the aim is to ensure that he gets his rights. If in a case the companyrt has reason to believe that the application for blood test is of a fishing nature or designed for some ulterior motive, it would be justified in number acceding to such a prayer. The above is the dicta laid down by the various High Courts. In matters of this kind the companyrt must have regard to section 112 of the Evidence Act. This section is based on the well known maxim pater est quem nuptioe demonstrant he is the father whom the marriage indicates . The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, any that every person is legitimate. Marriage or filiation parentage may be presumed, the law in general presuming against vice and immoratility. It is a rebuttable presumption of law that a child born. during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderannce of evidence, and number by a mere balance of probabilities. In Smt. Dukhtar Jahan v. Mohammed Faroog AIR 1987 SC 1049 this companyrt held. Section II 2 lays down that if a person was born during the companytinuance of a valid marriage between his mother and any man or within two hundren and eighty days after its dissolution and the mother remains unmarried, it shall be taken as companyclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had numberaccess to each other at anytime when he companyld have been begotten. This rule of law based on the dictates of justice has always made the companyrts incline towards upholding the legitimacy of a child unless the facts are so companypulsive and clinching as to necessarily warrant a finding that the child companyld number at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basts of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. This section requires the party disputing the paternity to prove number-access in order to dispel the presumption. Access and number-access mean the existence or numberexistence of opportunities for sexual intercourse it does number mean actual companyabitation.
JAGDISH SINGH KHEHAR, J. The present companytroversy is a dispute of inter se seniority between Income Tax Inspectors of the Income Tax Department. Direct recruits and promotees are pitted on opposite sides. One of the matters in hand came to be companysidered by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad hereinafter referred to as the CAT, Ahmedabad in R.C. Yadav Ors. vs. Union of India Ors. OA number92 of 2003 . The said Original Application had been filed by direct recruits. Another Original Application, on the same subject matter, being OA number123 of 2003 N.R. Parmar Ors. vs. Union of India Ors. was filed by promotees. Both the OA number92 of 2003 and OA number123 of 2003 were decided by a companymon order dated 12.1.2004. In its determination the CAT, Ahmedabad held, that seniority of direct recruits would have to be determined with reference to the date of their actual appointment. The implicit effect of the aforesaid determination was, that the date of arising of the direct recruit vacancies, or the date of initiation of the process of recruitment, or the date when the Staff Selection Commission had made recommendations for the filling up direct recruit vacancies, were inconsequential for determination of seniority of direct recruits. The decision rendered by the CAT, Ahmedabad dated 12.1.2004 was assailed before the High Court of Gujarat at Ahmedabad hereinafter referred to as the Gujarat High Court , in Union of India Ors. vs. N.R. Parma Ors. Special Civil Appeal number3574 of 2004 . Direct recruits separately filed Special Civil Application number1512 of 2004 Virender Kumar Ors. vs. Union of India Ors. . The Gujarat High Court by its order dated 17.8.2004, upheld the order of the CAT, Ahmedabad, dated 12.1.2004. The Union of India assailed the order passed by the Gujarat High Court dated 17.8.2004 before this Court, through Civil Appeal number.7514-7515 of 2005 Union of India Ors. vs. N.R. Parmar Ors. . Direct recruits have also separately raised a challenge to the order passed by the Gujarat High Court dated 17.8.2004, by filing Civil Appeal No.7516 of 2005 Virender Kumar Ors. vs. Union of India Ors. . On the same subject, an identical companytroversy was raised before the Central Administrative Tribunal, Principal Bench, New Delhi hereinafter referred to as the CAT, Principal Bench . After a series of legal battles between the rivals, i.e., promotee Income Tax Inspectors and direct recruit Income Tax Inspectors details whereof are being narrated at a later juncture , the CAT, Principal Bench passed an order dated 22.9.2004. The aforesaid order of the CAT, Principal Bench was assailed by direct recruit Income Tax Inspectors by filing Writ Petition C number.3446-49 of 2005 before the Delhi High Court. In Writ Petition C number.3446-49 of 2005 a Division Bench of the Delhi High Court on 2.3.2005, while issuing numberice, had stayed the impugned order passed by the CAT, Principal Bench dated 22.9.2004. Mukund Lal one of the applicants in OA number2107 of 2003, Mahender Pratap Ors. vs. Union of India Ors. , respondent number9 in Writ Petition C number.3446-49 of 2005, filed an application for vacation of the interim order passed by the Delhi High Court dated 2.3.2005 whereby the order of the CAT, Principal Bench dated 22.9.2004 had been stayed . Since the application was number disposed of by the Delhi High Court within the time frame expressed in Article 226 3 of the Constitution of India, Mukund Lal aforesaid, approached this Court to assail the order dated 2.3.2005 by filing Civil Appeal number.3876- 3880 of 2007. Since the subject matter of the companytroversy in the aforesaid writ petitions was identical to the one raised in Civil Appeal number.7514- 7515 of 2005 Union of India Ors. vs. N.R. Parma Ors. and Civil Appeal number7516 of 2005 Virender Kumar Ors. vs. Union of India Ors. , the said writ petitions were transferred to be heard with the Civil Appeals referred to hereinabove. On transfer to this Court, the aforesaid writ petitions were re-numbered as Transferred Case C No.91 of 2006 Pritpal Singh Ors. vs. Union of India Ors. . OA number270 of 2002 R.K. Bothra Ors. vs. Union of India Ors. , OA number271 of 2002 G.R. Chalana Ors. vs. Union of India Ors. , OA number275 of 2002 Bhanwar Lal Soni Ors. vs. Union of India Ors. , OA number293 of 2002 Ranjeet Singh Rathore Ors. vs. Union of India Ors. , were filed by promotee Income Tax Inspectors before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur hereinafter referred to as the CAT, Jodhpur , to assail the seniority-list wherein direct recruit Income Tax Inspectors, though appointed later, were placed higher in the senioritylist, i.e., above promotee Income Tax Inspectors, merely because they occupied vacancies of earlier years. The CAT, Jodhpur allowed the claim of the promotee Income Tax Inspectors by a companymon order dated 8.9.2003. The order passed by the CAT, Jodhpur dated 8.9.2003 was assailed before the High Court of Judicature for Rajasthan at Jodhpur hereinafter referred to as the Rajasthan High Court by filing four writ petitions DBC WP number785 of 2004, Union of India Ors. vs. R.K. Bothra Ors. DBC WP number786 of 2004, Union of India Ors. vs. Banwari Lal Soni Ors DBC WP number787 of 2004, Union of India Ors. vs. Giriraj Prasad Sharma Ors DBC WP number788 of 2004, Union of India Ors. vs. G.R. Chalana Ors. . The petitioners in the aforesaid writ petitions before the Rajasthan High Court i.e., Union of India filed Transfer Petition C number681 of 2006 under Article 139A 1 of the Constitution of India, seeking the transfer of the aforesaid writ petitions to this Court by asserting that the companytroversy raised therein was identical to the one pending adjudication before this Court in the Civil Appeals already mentioned above. Accordingly Transfer Petition C number681 of 2006 was ordered to be tagged with Civil Appeal number.7514-7515 of 2005 and other companynected matters . Learned companynsel for the rival parties are agreed, that the legal issue involved in all the matters, referred to hereinabove which are tagged together for disposal, is the same. During the companyrse of hearing submissions came to be advanced first of all in Transferred Case number91 of 2006. As such, the facts recorded in the said case have been adverted to while passing the instant judgment. Appointment to the cadre of Income Tax Inspectors in the Income-Tax Department is made by way of promotion, as also, by direct recruitment in the ratio of 21 respectively, i.e., 66-2/3 by promotion and 33-1/3 by direct recruitment. The companytroversy in TC C number91 of 2006 pertains to vacancies for the year 1993-94. The vacancies for the year 1993-94 which were identified to be filled up by way of promotion were referred to the Departmental Promotion Committee hereinafter referred to as the DPC , whereas, those identified to be filled up by direct recruitment, were simultaneously referred to the Staff Selection Commission hereinafter referred to as the SSC . Based on the recommendations made by the DPC, the Income-tax Department promoted five persons from the feeder cadre s respondents 5, 7, 8, 10 and 11 as Income Tax Inspectors on 30.8.1993. A day later, on 1.9.1993, one more person respondent number6 was similarly promoted as Income Tax Inspector. Thereafter on 14.12.1993 yet another promotion of respondent number9 was ordered, in the same manner. Likewise, respondent number12 was promoted as Income Tax Inspector on 8.9.1995. It is essential to emphasize, that all these promotions were ordered against promotee vacancies, identified for the year 1993-94. On the receipt of a requisition pertaining to the post of Income Tax Inspectors from the Income Tax Department, the SSC issued advertisements in May June, 1993, inviting applications for appointment by way of direct recruitment, against vacancies of Income Tax Inspectors of the year 1993- To fill up these vacancies, the SSC held the Inspectors of Central Excise and Income Tax Examination, 1993. All the petitioners in TC C number91 of 2006 responded to the aforesaid advertisement. The said petitioners, were in the first instance, subjected to a written test companyducted by the SSC in December, 1993. Thereafter, those who qualified the written examination, were invited for an interview viva-voce. All the petitioners appeared for the viva-voce test companyducted in October 1994. On 21/28.1.1995 the SSC declared the result of the Inspectors of Central Excise and Income-Tax Examination, 1993. The names of the petitioners in TC C number91 of 2006, figured in the list of successful candidates. After verification of their character and antecedents, and after they were subjected to a medical fitness examination, the petitioners in TC C number91 of 2006 were issued offers of appointment as Income Tax Inspectors in the Department of Income Tax. All the petitioners joined the cadre of Income Tax Inspectors between March and May, 1995. In the interregnum, some promotee Income Tax Inspectors were promoted to the next higher post of Income Tax Officer. Certain direct recruits who companysidered themselves senior to the promoted Income Tax Officers, approached the CAT, Principal Bench, seeking companysideration for promotion to the cadre of Income Tax Officers, from the date their juniors were promoted as such. Reference in this behalf may be made to two Original Applications being K.C. Arora Ors. vs. Union of India Ors OA number1478 of 1995 and S. Tanwar Ors. vs. Union of India Ors. OA number1899 of 1995 . In the pleadings of the aforesaid two original applications, it was acknowledged by the official-respondents, that the impugned promotions in the aforesaid two original applications, had been made on purely adhoc basis, as the seniority list of the cadre of Income Tax Inspectors had number by then been finalized. It was also mentioned therein, that after the seniority-list is finalized, the official-respondents would review the promotions already made, and if necessary, a review DPC would also be companyvened. During the pendency of the aforesaid two original applications, the Income Tax Department issued a seniority list of the cadre of Income Tax Inspectors on 8.2.1999. The aforesaid factual-position was brought to the numberice of the CAT, Principal Bench, whereupon, the aforesaid two original applications came to be disposed of with the following directions on 8.9.1999 In the result, both the OAs are disposed of as follows As admitted in the companynter reply mentioned above and in view of the seniority list dt.8.2.1999 the official respondents are directed to make promotions strictly in terms of the seniority list dt.8.2.1999. They must arrange a review DPC to companysider the claim of the applicants for promotion. In case, the applicants are found fit and suitable for promotion by the review DPC then on the basis of the said seniority list, the applicants shall be granted promotion from the date their juniors got promotion. The applicants should get seniority over the juniors in case they are found suitable for promotion. However, the applicants will number be entitled to any monetary benefits. In such a case, the applicants pay may be fixed numberionally from the dates of their deemed retrospective promotion. However, the applicants will number be entitled to any actual arrears of monetary benefits till the date of actual order of promotion. The actual monetary benefits are prospective, only from the date of order of promotion and companysequent date of assuming charge. In the circumstances of the case, the official respondents are granted three months time from the date of receipt of companyy of this order to companyply with these directions. In the circumstances of the case, there will be numberorder as to companyts. On 10.9.1999 a clarificatory order was passed by the CAT, Principal Bench. A relevant extract, of the aforesaid clarificatory order, is being reproduced hereunder But, on reconsideration and on second thought, we feel that there is numbernecessity to allow this M.A. and to recall our order dt.8.9.99 for the simple reason that our order will number prejudice the case of the private respondents in any way. What we have stated in our order dt.8.9.1999 is that the official respondents should strictly enforce the seniority list dt.8.2.99 and then on that basis hold review DPC and companysider the claim of the applicants for promotion. This order we have passed on the basis of the admission made by the official respondents in their reply. Now, the private respondents are companytending that the seniority list dt.8.2.1999 has been challenged by the applicants in OA 676/99 and other cases and there is a stay order granted by the Delhi High Court in C.W. No.3468/99 staying the official respondents holding a review DPC on the basis of the impugned seniority list dt.8.2.1999. We may place it on record that we have number companysidered the companyrectness and legality of the impugned seniority list dt.8.2.1999. We have simply directed the administration to follow the latest seniority list as admitted by the official respondents in their reply. We may also place it on record that we have number expressed any opinion on the companyrectness or legality of the seniority list dt.8.2.1999. We have simply directed the Administration to follow the latest seniority list which they have issued and companysiders the case of the applicants for promotion. If the seniority list itself is in dispute and its companyrectness is challenged by other officials, then naturally the department will number be able to take any decision unless the seniority list is upheld by the Tribunal. If there is any such stay order granted by any Tribunal or High Court, then naturally our direction in our order dt.8.9.1999 will be subject to such directions or stay orders passed by any Tribunal or any High Court. We also place on record that we have number expressed any opinion whether the promotion of private respondents was regular or ad-hoc, but only referred to the companytentions in the reply statement without giving a finding on that point. If the private respondents feel that their promotions were regular, then it is for them to take up the stand whenever that occasion arises. But, we have number given any finding on that disputed question of fact. In view of this clarifications issued by us, there is numbernecessity to allow the M.A. or recall our order dt.8.9.1999. In the result, the M.A. No.1938/99 is disposed of subject to above observations. No order as to companyts. Some direct recruits again approached the CAT, Principal Bench by filing Original Application number2307 of 1999 Sanjeev Mahajan Ors. vs. Union of India Ors. alleging, that while drawing the seniority list dated 8.2.1999, the Department of Income Tax had number applied the quota and rota principle. On 23.2.2000, the CAT, Principal Bench disposed of OA number2307 of 1999, and other companynected original applications Krishan Kanahiya Ors. vs. Union of India, OA No.676 of 1999 H.P.S Kharab Ors. vs. Union of India Ors., OA number387 of 1999 Muneesh Rajani Ors. vs. Union of India Ors., OA number964 of 1999 by a companymon order. In paragraph 7 of its order the CAT, Principal Bench, narrated the issues which came up for its determination as under The short question which is posed for our companysideration is as to what is the precise date on which direct recruits can be companysidered for seniority vis--vis the promotees. Whether it is i the date on which the vacancies have arisen ii the date when the same have been numberified by the department by sending requisitions to the Staff Selection Commission iii the date on which selection by the Commission is made iv the date when the selection is reported to the department or v the date on which the direct recruit actually assumes office. During the companyrse of hearing of the aforementioned original applications, it was acknowledged by the rival parties, that the questions under companysideration had to be determined with reference to instructions companytained in two office memoranda dated 7.2.1986 and 3.7.1986, issued by the Department of Personnel Training hereinafter referred to as the DoPT . Based on the aforesaid office memoranda, the CAT, Principal Bench, vide its order dated 23.2.2000 quashed the seniority-list dated 8.2.1999 by holding as under In our judgment, for deciding the aforesaid companytroversy a reference to the office memorandum of 7.2.1986 may usefully be made. In the earlier O.M. it has inter alia been provided as under the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between the direct recruits and the promotees, which will be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules .the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do number become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are number available, the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the companyresponding direct recruitment vacancies of the next year and to subsequent years where necessary for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in the year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for the year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed on en bloc below the last promotee for direct recruit as the case may be , in the seniority list based on the rotation of vacancies for the year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies as the case may be in the subsequent years. ILLUSTRATION Where the Recruitment Rules provide 50 of the vacancies of grade to be filled by promotion and the remaining 50 by direct recruitment, and assuming there are ten vacancies in the grade arising in each of the years 1986 and 1987 and that two vacancies intended for direct recruitment, remain unfilled during 1986 and they companyld be filled during 1987. The seniority position of the promotees and direct recruits of these two years will be as under 1986 1987 P1 9. P1 D1 10. D1 P2 11. P2 D2 12. D2 P3 13. P3 D3 14. D3 P4 15. P4 P5 16. D4 P5 D5 D6 D7 It is number necessary to make a reference to the subsequent office memorandum of 3.7.1986 as the same is numberhing but a repetition of the instructions companytained in the office memorandum dated 7.2.1986. We have heard the learned companynsel appearing for the companytending parties at companysiderable length and we are of the view that as far as inter se seniority is companycerned, the same has to be based on the vacancies arising for a particular year. Thereafter, the seniority has to be determined on the basis of rota quota rule which has been illustrated in the aforesaid illustration companytained in the O.M. of 7.2.1986. As far as direct recruits are companycerned, the crucial date on which they have to be companysidered will be the date when the Staff Selection Commission makes the selection of direct recruits. Hence the date of forwarding the dossier of direct recruits by the Commission to the department, date of actual joining or taking over charge by the direct recruit would all be irrelevant. It would be the date on which the Staff Selection Commission makes the selection of the direct recruits that will be the material date for fixing the seniority. This would avoid injustice being done on account of administrative delays, i.e., delay in matter of issue of orders of appointment and posting and of actual taking over of charge. Similar will be the position in regard to promotees. It will be the date on which the promotee is selected for promotion by the departmental promotion companymittee. Hence the date on which the promotee actually assumes charge of the promotional post similarly will be relevant. The seniority list which is impugned in the present proceedings, it appears, has number followed the instructions which we are number issuing in the present order. In the circumstances, the said seniority list is hereby quashed and set aside. Respondent number3 is directed to recast the seniority list on the basis of directions companytained in this order. The present order will also apply to seniority list of UDCs which is the subject matter of OA No.676/1999. All the OAs stand disposed of on the above lines. There shall, however, be numberorder as to companyts. Direct recruit Income Tax Inspectors, assailed the interpretation placed by the CAT, Principal Bench, on the office memorandum dated 7.2.1986 in its order dated 23.2.2000 , by filing a number of writ petitions Civil Writ Petition No.460 of 2000, Sanjiv Mahajan Ors. vs. Union of India Ors Civil Writ Petition No.670 of 2002, Pankaj Saxena vs. Union of India Ors. Civil Writ Petition No.7356 of 2000, Chief Commissioner of Income Tax vs. Sanjiv Mahajan Ors Civil Writ Petition No.5549 of 2001, Kamal Khanna Ors. vs. Union of India Ors. before the Delhi High Court. The aforesaid writ petitions were disposed of by the Delhi High Court by a companymon order dated 25.9.2002, whereby, the order dated 23.2.2000 passed by the CAT, Principal Bench, was set aside with the following observations Having regard to the fact that the judgment of the learned Tribunal is absolutely cryptic and numbercogent or valid reason has been assigned in support thereof, and as the companytentions raised before the Tribunal as also before us have number been companysidered at all, we are of the opinion that for determination of the crucial questions where for, it may be necessary, for the parties to adduce further evidence, the matter may be remitted back to the learned Tribunal for companysideration of the matter afresh and the parties may bring on record such other or further materials as may be directed by the learned Tribunal. The impugned judgment is, therefore, set aside. However, having regard to the facts and circumstances of the case, we would request the learned Tribunal to companysider the desirability of disposing of the matter as expeditiously as possible. These writ petitions are disposed of with the aforementioned observations and directions without any order as to companyts. Consequently, the matters referred to above went back to the CAT, Principal Bench for re-adjudication. During their pendency before the CAT, Principal Bench, an additional affidavit dated 12.3.2003 was jointly filed by the official-respondents. In the aforesaid additional affidavit it was, inter alia, pleaded as under Para 4 a The respondent has since obtained the advice of the Central Board of Direct Taxes and the Deptt. of Personnel and Training which is the numberal Ministry for promulgation and monitoring of the relevant rules and regulations, issuing Office Memorandums and the clarifications thereof. Based on the advice of the DOPT there has been a change in the stand taken by the respondent before this Honble Tribunal and as such, an application for amendment was made before the Honble Delhi High Court which allowed the application and has also taken numbere of the same in its judgment dt.25.9.2002. In view of the revised position, the seniority list dt.8.2.1999 was number in companyformity with the clarifications provided by the DoPT with reference to its M. Dt.7.2.1986 and 2.7.1986. Relevant extracts based on the DoPTs M. dt.7.2.1986 and 3.7.1986 and the clarifications furnished by that department which formed part of the application for amendment of the writ petition which was filed before the Honble Delhi High Court is annexed Annexure R-1 . c to q The applicants before the CAT, Principal Bench were direct recruits. They were satisfied with the latest position adopted by the official respondents before the CAT, Principal Bench through the additional affidavit dated 12.3.2003. They therefore, chose number to press their applications any further. The CAT, Principal Bench passed the following order on 26.4.2003 Learned companynsel for the applicants, keeping in view the amended reply dated 12.3.2003, does number press the present application. Accordingly, the OA is dismissed as withdrawn. The Income Tax Department thereupon, issued another seniority list of Income Tax Inspectors, dated 17.7.2003, by following the quota and rota principle prescribed in the office memoranda dated 7.2.1986 and 3.7.1986. The aforesaid seniority-list was assailed by promotee Income Tax Inspectors before the CAT, Principal Bench, through OA number2068 of 2003 C.P.S. Yadav Anr. vs. Union of India Ors. , OA number2107 of 2003 Mahender Pratap Ors. vs. Union of India Ors. , OA No.124 of 2004 S.K. Puri-II Anr. vs. Union of India Ors. . The CAT, Principal Bench, by a companymon order dated 22.9.2004 allowed the claim preferred by the promotee Income Tax Officers, and as such, quashed the seniority list dated 17.7.2003. The direct recruit Income Tax Inspectors, who were respondents in the original applications referred to above, assailed the order passed by the CAT, Principal Bench, dated 22.9.2004, before the Delhi High Court by filing Writ Petition C No.3446-49 of 2005 Pritpal Singh Ors. vs. Union of India Ors. . As already mentioned hereinabove, the aforesaid writ petitions were transferred to this Court and assigned TC C number91 of 2006. During the companyrse of hearing, learned companynsel for the rival parties agreed, that the seniority dispute between the promotee and direct recruit Income Tax Inspectors of the Income Tax Department was liable to be determined on the basis of office memoranda dated 7.2.1986 and 3.7.1986, read with the clarificatory office memoranda and office numberes. It is important to numberice, before embarking upon the claim of the rival parties, that numbere of the parties have assailed the vires of the office memoranda dated 7.2.1986 and 3.7.1986 or for that matter, the clarificatory office memoranda office numberes . It is therefore apparent, that the dispute between the rival parties is numberhing but, the true and companyrect interpretation of the office memoranda dated 7.2.1986 and 3.7.1986, read with clarificatory office memoranda and office numberes. It is therefore, that the matter in hand is being examined in the light of the aforesaid office memoranda. General principles for determining seniority in Central services are shown to have been laid down in an annexure to an office memorandum dated 22.11.1959 issued by the Government of India, Ministry of Home Affairs hereinafter referred to as the OM dated 22.11.1959 . Paragraph 6 of the annexure, referred to above, laid down the manner of determining inter se seniority between direct recruits and promotees. Paragraph 6 is being extracted hereunder Relative seniority of Direct Recruits and Promotees. The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Department Rules. It is apparent from the above extract of the OM dated 22.11.1959, that the quota between promotees and direct recruits was to be read into the seniority rule. The OM also provided for a definite rotation of seniority points rota between promotees and direct recruits. The rotation provided for was founded on the companycept of rotation of quotas between promotees and direct recruits. It is therefore apparent, that under the OM dated 22.11.1959 inter se seniority between the promotees and direct recruits was based on the quota and rota principle. The same has been meaningfully described as rotation of quotas in some of these instruments. The aforesaid prescription of the manner of determining inter se seniority between the direct recruits and promotees, determined through the OM dated 22.11.1959, was modified by an office memorandum dated 7.2.1986, issued by the Government of India, Department of Personnel and Training hereinafter referred to as, the OM dated 7.2.1986 . The modification introduced through the OM dated 7.2.1986 was to redress a situation wherein, vacancies of one of the sources were kept or remained unfilled during the process of selection, and the unfilled vacancies, had to be filled up through later examinations or selections. For the determination of seniority, in the companytingency wherein the process of recruitment resulted in filling the vacancies earmarked for the two sources of recruitment, the manner of determining inter se seniority between promotees and direct recruits, expressed in the OM dated 22.11.1959 remained unaltered. But where the vacancies companyld number be filled up, and unfilled vacancies had to be filled up later through a subsequent process of selection, the manner of determining inter se seniority between promotees and direct recruits, was modified. Since it is the case of the rival parties before us, that the OM dated 7.2.1986 is the principal instruction, on the basis whereof the present companytroversy is to be settled, the same is being extracted hereunder in its entirety. The 7 February, 1986. Office Memorandum Subject General Principles for determining the seniority of various categories of persons employed in Central Services. As the Ministry of Finance etc. are aware, the General Principles for determination of seniority in the Central Services are companytained in the Annexure to Ministry of Home Affairs O.M. No. 9/11/55-RPS dated 22nd December 1959. According to Paragraph-6 of the said Annexure, the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between the direct recruits and the promotees, which will be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. In the Explanatory Memorandum to these Principles, it has been stated that a roster is required to be maintained based on the reservation of vacancies for direct recruitment and promotion in the Recruitment Rules. Thus where appointment to a grade is to be made 50 by direct recruitment and 50 by promotion from a lower grade, the inter-se seniority of direct recruits and promotees is determined on 11 basis. While the above mentioned principle was working satisfactorily in cases where direct recruitment and promotion kept pace with each other and recruitment companyld also be made to the full extent of the quotas as prescribed, in cases where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did number become available, there was difficulty in determining seniority. In such cases, the practice followed at present is that the slots meant for direct recruits or promotees, which companyld number be filled up, were left vacant, and when direct recruits or promotees became available through later examinations or selections, such persons occupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was short-fall in direct recruitment in two or more companysecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also companye up for companysideration in various Court Cases both before the High Courts and the Supreme Court and in several cases the relevant judgement had brought out the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service. This matter, which was also discussed in the National Council has been engaging the attention of the Government for quite some time and it has been decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unitended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do number become available in any particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are number available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the companyresponding direct recruitment vacancies of the next year and to subsequent years where necessary for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee or direct recruit as the case may be in the seniority list based on the rotation of vacancies for that year. The same principle holds good in determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies as the case may be in the subsequent years. Illustration Where the Recruitment Rules provide 50 of the vacancies in a grade to be filled by promotion and the remaining 50 by direct recruitment, and assuming there are 10 vacancies in the grade arising in each of the years 1986 and 1987 and that 2 vacancies intended for direct recruitment remained unfilled during 1986 and they companyld be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under 1986 1987 P1 9. P1 D1 10. D1 P2 11. P2 D2 12. D2 P3 13. P3 D3 14. D3 P4 15. P4 P5 16. D4 P5 D5 D6 D7 In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed. With a view to curbing any tendency of under-reporting suppressing the vacancies to be numberified to the companycerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the companyresponding figure, numberified for direct recruitment would be treated only as adhoc promotees. The General Principles of seniority issued on 22nd December, 1959 referred to above, may be deemed to have been modified to that extent. These orders shall take effect from 1st March 1986. Seniority already determined in accordance with the existing principles on the date of issue of these orders will number be reopened. In respect of vacancies for which recruitment action has already been taken, on the date of issue of these orders either by way of direct recruitment or promotion, seniority will companytinue to be determined in accordance with the principle in force prior to the issue of this O.M. Ministry of Finance etc. are requested to bring these instructions to the numberice of all the Attached Subordinate Offices under them to whom the General Principles of Seniority companytained in O.M. dated 22.12.1959 are applicable within 2 week as these orders will be effective from the next month. Sd - Joint Secretary to the Govt. of India emphasis is ours Since the OM dated 7.2.1986 would primarily companystitute the determination of the present companytroversy, it is companysidered just and appropriate to render an analysis thereof. The following companyclusions are apparent to us, from a close examination of the OM dated 7.2.1986 Paragraph 2 of the OM dated 7.2.1986 first records the existing manner of determining inter se seniority between direct recruits and promotees i.e., as companytemplated by the OM dated 22.11.1959 , namely, the slots meant for direct recruits or promotees, which companyld number be filled up, were left vacant, and when direct recruits or promotees become available through later examinations or selections, such persons occupied the vacant slots, and thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was shortfall in direct recruitment in two or more companysecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service to their credit The words, when direct recruits or promotees become available through later examination or selections, clearly companynotes, that the situation companytemplated is one where, there has been an earlier examination or selection, and is then followed by a later examination or selection. It is implicit, that in the earlier examination or selection there was a shortfall, in as much as, the available vacancies for the companycerned recruitment year companyld number all be filled up, whereupon, further examination s or selection s had to be companyducted to make up for the shortfall. In the instant situation, the earlier OM dated 22.11.1959 companytemplated provided, that slots allotted to a prescribed source of recruitment which remained vacant, would be filled up only from the source for which the vacancy was reserved, irrespective of the fact that a candidate from the source in question became available in the next process of examination or selection, or even thereafter. In other words the rotation of quotas principle was given effect to in letter and spirit under the OM dated 22.11.1959, without any scope of relaxation. The position expressed in the sub-paragraph a above, was sought to be modified by the OM dated 7.2.1986, by providing in paragraph 3 thereof, that the earlier principle of rotation of quotas would still be followed for determining the inter se seniority of direct recruits and promotees except when the direct recruit vacancies were being filled up by direct recruits of later years. Read in companyjunction with paragraph 2 of the OM dated 7.2.1986, the words direct recruits of later years must be understood to mean, direct recruits who became available through later examination s or selection s . Essentially the later examination s or selection s should be perceived as those companyducted to fill up the carried forward vacancies, i.e., vacancies which companyld number be filled up, when the examination or selection for the companycerned recruitment year was originally first companyducted. This change it was clarified, was made to stop direct recruits of later years, from gaining unintended seniority over promotees who are already in position, as High Courts and the Supreme Court had brought out the inappropriateness thereof. It is therefore apparent, that the OM dated 7.2.1986 partially modified the rotation of quotas principle in the determination of inter se seniority originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986, provided that the rota rotation of quotas would be adhered to only to the extent of available direct recruits and promotees, i.e., for promotee and direct recruit vacancies which companyld be filled up through the original first process of examination or selection companyducted for the recruitment year in which the vacancies had arisen. For the vacancies remaining unfilled when the same were originally first sought to be filled up, the slots available under the rota principle under the OM dated 22.11.1959, would be lost to the extent of the shortfall. In other words, the rotation of quotas principle would stop operating after, the last position upto which it is was possible to determine seniority on the basis of rotation of quotas, for the companycerned recruitment year. Paragraph 3 of the OM dated 7.2.1986 provided, the manner of assigning seniority to vacancies carried forward on account of their having remained unfilled in the original first examination or selection process. The change companytemplated in the OM dated 7.2.1986, referred to hereinabove, was made absolutely unambiguous by expressing that, The unfilled direct quota vacancies would be carried forwarded and added to the companyresponding direct recruitment vacancies of the next year It is therefore apparent, that seniority of carried forward vacancies would be determined with reference to vacancies of the recruitment year wherein their selection was made, i.e., for which the later examination or selection was companyducted. The OM dated 7.2.1986 formulated the stratagem to be followed, where adequate number of vacancies in a recruitment year companyld number be filled up, through the examination or selection companyducted therefor. The OM provided, to the extent direct recruits are number available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is was possible to determine the seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available Paragraph 3 of the OM dated 7.2.1986 further postulated, that the modification companytemplated therein would be applied prospectively, and that, the present practice of keeping vacant slots for being filled up by direct recruits of later years, over promotees who are were already in position, would be dispensed with. It is therefore apparent, that the slots assigned to a particular source of recruitment, would be relevant for determining inter se seniority between promotees and direct recruits, to the extent the vacancies companyld successfully be filled up and the unfilled slots would be lost only for vacancies which arose after the OM dated 7.2.1986, came to be issued. The illustration provided in paragraph 3 of the OM dated 7.2.1986 fully substantiates the analysis of the OM dated 7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the companyclusions drawn in the foregoing sub-paragraphs have been drawn, keeping in mind the explanatory illustration narrated in paragraph 3 of the OM dated 7.2.1986. In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the general principles for determining seniority in the OM dated 22.11.1959 were being modified to the extent expressed in the OM dated 7.2.1986 . The extent of modification companytemplated by the OM dated 7.2.1986 has already been delineated in the foregoing sub-paragraphs. Para 6 therefore leaves numberroom for any doubt, that the OM dated 22.11.1959 stood amended by the OM dated 7.2.1986 on the issue of determination of inter se seniority between direct recruits and promotees, to the extent mentioned in the preceding sub-paragraphs. The said amendment was companysciously carried out by the Department of Personnel and Training, with the object of remedying the inappropriateness of direct recruits of later examination s or selection s becoming senior to promotees with long years of service, in terms of the OM dated 22.11.1959. The O.M. dated 7.2.1986, was followed by another Office Memorandum issued by the Government of India, Department of Personnel and Training, dated 3.7.1986 hereinafter referred to as, the O.M. dated 3.7.1986 . The purpose of the instant O.M., as the subject thereof suggests, was to companysolidate existing governmental orders on the subject of seniority. Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986 dealt with the issue of inter se seniority between the direct recruits and promotees. The same are accordingly being reproduced hereunder- 2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. 2.4.2 If adequate number of direct recruits do number become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are number available the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the companyresponding direct recruitment vacancies of the next year and to subsequent years where necessary for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee or direct recruit as the case may be , in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies as the case may be in the subsequent year. ILLUSTRATION Where the Recruitment Rules provide 50 of the vacancies of a grade to be filled by promotion and the remaining 50 by direct recruitment, and a assuming there are ten vacancies in the grade arising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they companyld be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under 1986 1987 P1 9. P1 D1 10. D1 P2 11. P2 D2 12. D2 P3 13. P3 D3 14. D3 P4 15. P4 P5 16. D4 P5 D5 D6 D7 2.4.3 In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed. 2.4.4 With a view to curbing any tendency of underreporting suppressing the vacancies to be numberified to the companycerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share failing to the promotion quota based on the companyresponding figure, numberified for direct recruitment would be treated only as ad-hoc promotees. emphasis is ours The following companyclusions have been drawn by us from the O.M. dated 3.7.1986- If adequate number of direct recruits or promotees do number become available in any particular year, rotation of quotas for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots for the companycerned recruitment year. To the extent direct recruits were number available for the companycerned recruitment year, the promotees would be bunched together at the bottom of the seniority list, below the last position upto which it was possible to determine seniority, on the basis of rotation of quotas. And vice versa. The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to the companyresponding direct recruitment vacancies of the next year and to subsequent years, where necessary . And vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3.7.1986. Firstly, the phrase in that year which companynotes the recruitment year for which specific vacancies are earmarked. And secondly, the phrase in the subsequent year, which companynotes carried forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year. The additional direct recruits selected, against the carried forward vacancies of the previous year, would be placed en-bloc below the last promotee. And vice versa. It is, therefore, apparent, that the position expressed in the O.Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct recruits and promotees, was absolutely identical. This is indeed how it was intended, because the OM dated 3.7.1986 was only meant to companysolidate existing governmental instructions, on the subject of seniority. Chronologically, it is necessary, at the present juncture to refer to an Office Note of the Department of Personnel and Training, Establishment Section, dated 20.12.1999 hereinafter referred to as, the O.N. dated 20.12.1999 . Undoubtedly, an office numbere has numberlegal sanction, and as such, is number enforceable in law. Yet an office numbere is certainly relevant for determining the logic and process of reasoning which prevailed at the relevant point of time. These would aid in the interpretation of the binding office memoranda, only when the language of the office memoranda is ambiguous. Ofcourse, only where there is numberconflict between the two i.e., the office numbere and the office memoranda sought to be interpreted. In the aforesaid background, and for the aforesaid limited purpose, reference is being made to the O.N. dated 20.12.1999. The same is being reproduced hereunder- Department of Personnel and Training Estt. D Section Ref. Preceding numberes. It is number clear whether the instructions companytained in our O.M. dated 07.02.1986 has been interpreted companyrectly. It is clarified that on a perusal of our O.M. dated 22.12.1959 read with our O.M. dated 07.02.1986 it will be clear that the inter-se seniority of direct recruits and promotees will have to be fixed by following the principle of rotation of quotas prescribed for them in the recruitment rules subject to the companydition that the rotation as per quota will be made only upto the actual number of DRs Promotees available and to the extent direct recruits promotees do number become available in any recruitment year the promotees or the direct recruits as the case may be will be bunched together at the bottom of the seniority list. In other words, only where appointing authority has number been able to fill up the post inspite of best efforts with reference to the requisition for the particular recruitment year in question, the instructions companytained in O.M. dated 07.02.1986 will companye into operation as will be clear from para 5 thereof. For example, if the quota in the Rrs and DR and promotee is fifty-fifty and if the UPSC has recommended only 2 DRs against the three vacancies of a particular recruitment year, say 1987 for which requisition was sent to them in 1987 and even if both the DRs had joined in 1988 the inter-se seniority of DRs and promotees may be fixed in the ratio of 11 upto the number of DRs available i.e. the first four places in the seniority list will be assigned alternatively to DR and promotee, the 5th in the seniority list which would have numbermally gone to DR will number go to the promotee because of the number-availability of DR and the 6th will in any case go to promotee. But for the instructions companytained in our O.M. dated 07.02.1986, the 5th place would have been kept reserved for the DR as and when it is actually filled by DR, even if it takes a few years. However, after the issue of our O.M. dated 07.02.1986, it is numberlonger kept vacant but is assigned to the promotee who is available. It is number necessary that the DR for 1987 vacancy should join in 1987 itself. It would suffice if action has been initiated for 1987 DR vacancies in 1987 itself. This is because, in a case of direct recruitment, if the administrative action in filling up the post by DR takes more than a year or so the individual cannot be held responsible for such administrative delay and hence it would number be appropriate to deprive him of his due seniority for delay on the part of administration in companypleting his selection by direct recruitment. In fact ordinarily the process of direct recruitment takes more than a year to be companypleted and if DR is to join in the same year for getting seniority of that year then numberDR will get seniority of the same year because as already stated the DR process takes more than a year. Hence, as already stated initiation of action for recruitment in sufficient. It is number clear whether our O.M. of 07.02.1986 has been interpreted companyrectly on the above line by the Deptt. of Revenue. Hence the above position may be suitably incorporated in the para-wise companyments prepared by them and it may be modified accordingly. Subject to this, the parawise companyments appear to be generally in order. It is however for the Department of Revenue to ensure the companyrectness of the factual position mentioned therein. Deptt. of Revenue may please see. Sd - Muthu Kumar Under Secretary 3357/DIR E 1/99 20/12 Dir E-1 The clarification given above needs to be adhered to as we have been companysistently advising on the aforesaid lines. Any other interpretation of the relevant instructions would be illogical. Sd - DIR E-1 21.12.99 emphasis is ours The logic and the process of reasoning, emerging from the O.N. dated 20.12.1999, as they appear to us, are analysed below- Only where the appointing authority has number been able to fill up the vacancies earmarked for direct recruits promotees, with reference to the requisition for a particular recruitment year, inspite of its best efforts, the instructions companytained in O.M. dated 7.2.1986 will companye into operation. It is number necessary, that the direct recruits for vacancies of a particular recruitment year, should join within the recruitment year during which the vacancies had arisen itself. As such, the date of joining would number be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available. This is so, because delay in administrative action, it was felt, companyld number deprive an individual of his due seniority. As such, initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the companycerned appointees in terms of the rotation of quotas principle, so as to arrange them with other appointees from the alternative source , for vacancies of the same recruitment year. Following the ON dated 20.12.1999, the Department of Personnel and Training, Establishment D Section, examined the issue in yet another Office Note dated 2.2.2000 hereinafter referred to as the ON dated 2.2.2000 . Just like the earlier ON dated 20.12.1999, the instant ON dated 2.2.2000 also has numberlegal sanction, and as such, is number enforceable in law. But just like the earlier office numbere, the instant ON dated 2.2.2000 would also be relevant in determining the logic and process of reasoning which prevailed at the relevant point of time. This would aid in the interpretation of binding office memoranda, only where the language is ambiguous, and only if there is numberconflict between the two the office numbere and the office memoranda, sought to be interpreted . In the aforesaid background, and for the aforesaid limited purpose, reference is also being made to the ON dated 2.2.2000. The same is being extracted hereunder Department of Personnel Training Estt. D Section Notes from p.17/ante may please be seen with reference to our earlier numbere on Pp.9-10 ante. With reference to X on p.18 and Y on p.19/ante, it will be clear from our numbere on Pp.9-10/ante that if action for the Recruitment Year 1986-1987 has been initiated at any time during that Recruitment Year even if the exam is held in 1988 and the results are declared in 1989 and the candidate join only in 1990, since the action for recruitment was initiated in 1986-1987 itself merely because the process of recruitment took so long for which the candidates cannot be blamed and since the responsibility for the delay in companypleting the process of recruitment squarely lies with the administration, it would number be appropriate to deprive the candidates of their due seniority of 1986-87. Consequently, if action was initiated during the Recruitment Year 1986-1987 even if it culminates in the joining by the selected candidates only in 1990, they will get seniority of 1986-1987. This applies equally to DRs as well as promotees. In other words, if such DRs of 1986-1987 ultimately join in 1990 yet they will be rotated with promotees of 1986-87. As regards point 1 on page 19/N, it is clarified that initiation of action for recruitment initiation of recruitment process would refer to the date of sending the requisition to the recruiting authority for a particular Recruitment Year in question. Points 2 3 are the companycern of Estt. B . As regards point 4 , it is clarified that as already stated the companycept of initiation of action for recruitment is applicable equally to direct recruits and promotees. As regards point 5 , it may be stated that even if DOPT is also one of the respondents, it is for the Administrative Ministry Department who are companycerned with the persons involved in the CAT companyrt case to take necessary action on behalf of DOPT also. In any case, our companyments are already companytained in our earlier numbere as well as this numbere. It is for the Administrative Ministry Department to incorporate them suitably in the companynter reply. Hence, the companynter reply on Pp.159-175/Cor. May be suitably modified in the light of our advice on Pp.9-10/ante as already advised at X on p.10/ante and this numbere. In future, the Department of Revenue, if they want our advice, refer such cases well in time instead of making such reference at the eleventh hour to enable us to companysider the matter in its proper perspective without any time companystraint. Estt. B may please see for companyments on points 2 and 3 on Pp.19-20/ante before the file is returned to Department of Revenue. Sd - Under secretary 2.2.2000. The logic and process of reasoning emerging from the ON dated 2.2.2000, as is apparent to us, is being analysed below If the process of recruitment has been initiated during the recruitment year in which the vacancies have arisen itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later than the one in which the examination was held , and the selected candidates joined in a further later year than the one in which the result was declared , the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year in which the requisition of vacancies was made . The logic and reasoning for the aforesaid companyclusion expressed in the ON dated 2.2.2000 is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate s cannot be blamed for the administrative delay, in companypleting the process of selection. The words initiation of action for recruitment, and the words initiation of recruitment process, were explained to mean, the date of sending the requisition to the recruiting authority. Having examined the matter thus far, it is necessary to refer to the Ministry of Finance, Department of Revenues, letter dated 11.5.2004 hereinafter referred to as, the letter dated 11.5.2004 . The aforesaid letter is being reproduced below New Delhi, the 11th May, 2004 To, The Chief Commissioner of Income Tax CCA , CHANDIGARH Subject Fixation of inter-se seniority of DR and Promotee Income Tax Inspectors in view of clarification given by DOPT in r o OM dated 3.7.87 Sir, I am directed to refer to your letter F.No.CC CHD/2003-04/935 dated 4.12.2003 on the above subject and to say that the matter has been examined in companysultation with DOPT and necessary clarification in the matter is given as under Point querry raised Clarification Whether direct recruit It is clarified by DOPT inspectors should be given that Direct Recruits seniority of the year in seniority vis--vis the which selection process promotees is reckoned from initiated or vacancy the year in which they are occurred orotherwise actually recruited. DRs cannot claim seniority of the year in which the vacancies had arisen. The question of grant of seniority to DRs of the period when they were number even in service does number arise. The representations may please be disposed off accordingly. Yours faithfully, Sd - Under Secretary to the Government of India A perusal of the letter dated 11.5.2004 reveals, that it adopts a position in clear companyflict with the one expressed in the OMs dated 7.2.1986 and 3.7.1986, as well as, in the ONs dated 20.12.1999 and 2.2.2000. In the aforesaid letter dated 11.5.2004 it was sought to be clarified, that the seniority of direct recruits vis--vis promotees, would be determined with reference to the year in which the direct recruits are appointed. And further, that direct recruits cannot claim seniority with reference to the year in which the vacancies against which they are appointed had arisen. In our companysidered view reliance on the letter dated 11.5.2004, for the determination of the present companytroversy, is liable to outright rejection. This is so because, the letter dated 11.5.2004 has been styled as a clarification see heading in right hand companyumn . One of the essential ingredients of a clarification is, that it clarifies an unclear, doubtful, inexplicit or ambiguous aspect of an instrument. A clarification cannot be in companyflict with the instrument sought to be clarified. The letter dated 11.5.2004 breaches both the essential ingredients of a clarification referred to above. That apart, the letter dated 11.5.2004 is liable to be ignored in view of two subsequent letters of the Ministry of Finance, Department of Revenue dated 27.7.2004 and 8.9.2004. The letter dated 27.7.2004 is reproduced hereunder New Delhi, the 27th July, 2004 To Chief Commissioner of Income Tax CCA CHANDIGARH Subject Fixation of inter-se seniority of DR and Promotee Income tax Inspectors in view of clarification given by DOPT in r o OM dated 3.7.86. Sir, I am directed to refer to Boards letter of even number dated 11.5.2004 on the above subject and to request that the application of this clarification may be kept in abeyance till further orders. Yours faithfully, Sd - Under Secretary to the Government of India A perusal of the letter dated 27.7.2004 reveals, that the allegedly clarificatory letter dated 11.5.2004, had been kept in abeyance. The second letter dated 8.9.2004 referred to above is also being reproduced below New Delhi, the 8th September, 2004 To Al CCITs CCA Sub Fixation of inter se seniority between Direct Recruits DR and Promotee PR Inspectors of Income tax in various charges of the Income tax Department regarding. Sir, I am directed to say that a number of OAs WPs are pending under adjudication in the various benches of CAT and High Courts on the above subject. The Board has been taking a companysistent stand in all those cases that the policy as laid down in Sanjeev Mahajans case pertaining to CCIT, Delhi Charge , which was finalized in companysultation with DOPT and the Ministry of Law would prevail and that seniority of DRs would be reckoned with reference to date of initiation of recruitment process in their case. Subsequently on a query raised by CCIT, Chandigarh on an issue relating to the treatment to be given to the promotee Inspectors, who would face reversion on account of refixation of seniority as per DOPT Ministry of Laws advice, the Board issued a clarification vide letter of even number, dated 11.5.2004, which created an adverse situation before the Gujarat High Court in a related case. As such this clarification was held in abeyance vide letter dated 27.07.2004 till further orders. The matter has been reexamined and it has been decided that the stand taken finalized by the Board in the case of Sanjeev Mahajan would hold good in future also and all the cases on the issue would be handled defended in the light of clarification submitted in that case. All CCITs CCA are accordingly requested to take necessary action in the matter of fixation of seniority of DRs Promotee Inspectors accordingly. Yours faithfully, Sd - Under Secretary VL A perusal of the letter dated 8.9.2004 reveals, that the clarification given in the letter dated 11.5.2004, would be ignored in favour of the position adopted in Sanjeev Mahajans case, in companysultation with the Department of Personnel and Training. It would be relevant to numberice, that the position adopted in Sanjeev Mahajans case, referred to in the letter dated 8.9.2004 was, that seniority of direct recruits would be reckoned with reference to the date of initiation of the process of recruitment in their case. In the aforesaid view of the matter, the letter dated 11.5.2004 is bound to be disregarded and excluded from companysideration number only because it does number satisfy the legal parameters of a clarification, but also because, it is deemed to have been superseded by the subsequent letters dated 27.7.2004 and 8.9.2004. Reference necessarily needs to be made to yet another office memorandum issued by the Government of India, Department of Personnel and Training, dated 3.3.2008 hereafter referred to as, the OM dated 3.3.2008 . In view of the emphatic reliance on the OM dated 3.3.2008, during the companyrse of hearing, the same is reproduced hereunder, in its entirety New Delhi, dated the 3rd March, 2008 OFFICE MEMORANDUM Subject Consolidated instructions on seniority companytained in DOPT M. No.22011/7/1986-Estt. D dated 3.7.1986 Clarification regarding The undersigned is directed to refer to this Departments companysolidated instructions companytained in O.M. No.22011/7/1986-Estt. D dated 3.7.1986 laying down the principles on determination of seniority of persons appointed to services posts under the Central Government. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 companytains the following provisions 2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. 2.4.2 If adequate number of direct recruits does number become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of available direct recruits and the promotees. Some references have been received seeking clarifications regarding the term available used in the preceding para of the OM dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results selection and companypletion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years, either by direct recruitment or promotion, the persons so appointed shall number get seniority of any earlier year viz. year of vacancy panel or year in which recruitment process is initiated but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post service. Cases of seniority already decided with reference to any other interpretation of the term available as companytained in O.M. dated 3.7.1986 need number be reopened. Hindi version will follow. Sd - Director Estt.I emphasis is ours The following companyclusions, in our view, can be drawn from the OM dated 3.3.2008 The OM dated 3.3.2008 is in the nature of a clarification, to the earlier companysolidated instructions on seniority, companytained in the OM dated 3.7.1986 referred to and analysed, in paragraph 21 above . The term available used in para 2.4.2 in the OM dated 3.7.1986 has been clarified to mean, both in case of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual year of appointment after the declaration of the result selection, i.e., after the companyclusion of the selection process, and after the companypletion of the pre-appointment formalities medical fitness, police verification, etc. . As per the OM dated 3.7.1986, when appointments are made against unfilled vacancies in subsequent year s , the persons appointed would number get seniority with reference to the year in which the vacancy arose, or the year in which the recruitment process was initiated, or the year in which the selection process was companyducted. As per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequent year s , the persons appointed would get seniority of the year in which they are appointed on substantive basis. Before examining the merits of the companytroversy on the basis of the OM dated 3.3.2008, it is necessary to examine one related submission advanced on behalf of the direct recruits. It was the companytention of learned companynsel, that the OM dated 3.3.2008 being an executive order issued by the Department of Personnel and Training, would apply only prospectively. In this behalf it was pointed out, that the disputed seniority between rival parties before this Court was based on the appointment to the cadre of Income Tax Inspectors, well before the OM dated 3.3.2008 was issued. As such, it was pointed out, that the same would number affect the merits of companytroversy before this Court. We have companysidered the instant submission. It is number possible for us to accept the aforesaid companytention advanced at the hands of the learned companynsel. If the OM dated 3.3.2008 was in the nature of an amendment, there may well have been merit in the submission. The OM dated 3.3.2008 is in the nature of a clarification. Essentially, a clarification does number introduce anything new, to the already existing position. A clarification, only explains the true purport of an existing instrument. As such, a clarification always relates back to the date of the instrument which is sought to be clarified. In so far as the instant aspect of the matter is companycerned, reference may be made to the decision rendered by this Court in S.S. Garewal vs. State of Punjab, 1993 3 Suppl. 234, wherein this Court had observed as under 8 In the alternative, it was urged that the order dated April 8, 1980 companyld only have prospective operation with effect from the date of issue of the said order and the sub-roster indicated by the said order companyld be given effect to only from that date and on that basis the first post reserved for Scheduled Castes should go to Balmikis or Mazhabi Sikhs and on that basis also respondent No. 3 was entitled to be placed against point No. 7 in the 100-point roster and Shri G.S. Samra against point No. 9 in the said roster. From a perusal of the letter dated April 8, 1980, we find that it gives clarifications on certain doubts that had been created by some Departments in the matter of implementation of the instructions companytained in the earlier letter dated May 5, 1975. Since the said letter dated April 8, 1980 is only clarificatory in nature, there is numberquestion of its having an operation independent of the instructions companytained in the letter dated May 5, 1975 and the clarifications companytained in the letter dated April 8, 1980 have to be read as a part of the instructions companytained in the earlier letter dated May 5, 1975. In this companytext it may be stated that according to the principles of statutory companystruction a statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective. See Craies on Statute Law, 7th Ed., p.58 . It must, therefore, be held that all appointments against vacancies reserved for Scheduled Castes made after May 5, 1975 after May 14, 1977 in so far as the Service is companycerned , have to be made in accordance with the instructions as companytained in the letter dated May 5, 1975 as clarified by letter dated April 8, 1980. On that view, the appointment of Shri Bal want Rai in 1979 has to be treated to be an appointment made under the said instructions and operation of these instructions cannot be postponed till April 8, 1980 In view of the above, it is number possible for us to accept that the OM dated 3.3.2008, would only apply prospectively. We are also satisfied, that the OM dated 3.3.2008 which is only a clarification of the earlier OM dated 3.7.1986, would relate back to the original instrument, namely, the OM dated 3.7.1986. We shall number endeavour to examine the effect of OM dated 3.3.2008 on the subject of inter se seniority between direct recruits and promotees. Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and or 3.7.1986? And, would the OMs dated 7.2.1986 and 3.7.1986 negate the OM dated 3.3.2008, to the extent that the same is repugnant to the earlier OMs dated 7.2.1986 and 3.7.1986 ? In our view, what needs to be kept in mind while determining an answer to the aforesaid queries is, that the OM dated 7.2.1986 is in the nature of an amendment modification. The Department of Personnel and Training companysciously amended the earlier OM dated 22.11.1959, by the later OM dated 7.2.1986. The said amendment was companysciously carried out, with the object of remedying the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service. It is number the case of any of the parties before us, that the OM dated 7.2.1986, has ever been amended or modified. It is therefore imperative to companyclude, that the OM dated 7.2.1986 is binding for the determination of the issues expressed therein, and that, the same has the force of law. The OM dated 3.7.1986 is in the nature of companysolidatory instruction, whereby, all earlier instructions issued from time to time were companypiled together. This is apparent, number only from the subject of the aforesaid OM dated 3.7.1986, but also, the companytents of paragraph 1 thereof. Paragraph 1 of the OM dated 3.7.1986, is being reproduced hereunder Dated 3.7.86 OFFICE MEMORANDUM Subject SENIORITY companysolidated orders on The undersigned is directed to say that instructions have been issued by this Department from time to time laying down the principles for determining seniority of persons appointed to services and posts under the Central Government. For facility of reference, the important orders on the subject have been companysolidated in this office memorandum. The number and date of the original companymunication has been quoted in the margin so that the users may refer to it to understand fully the companytext in which the order in question was issued. emphasis is ours It is therefore clear, that the OM dated 3.3.2008 is neither in the nature of an amendment number in the nature of a modification. Since the OM dated 3.3.2008, is a mere companysolidation or companypilation of earlier instructions on the subject of seniority, it is number prudent to draw any inferences therefrom which companyld number be drawn from the earlier instruction office memoranda being companysolidated or companypiled therein, or which is companytrary thereto. It is relevant to numberice, that there is a marginal numbere against paragraph 2.4.2 in the OM dated 3.7.1986. The aforesaid marginal numbere is being extracted hereunder DOPT No.35014/2/80-Estt D dt.7.2.86 Therefore, paragraph 2.4.2 must be deemed to have been recorded in the companysolidating OM, on the basis of the OM dated 7.2.1986. The instant assertion has been made on account of it having been expressly mentioned in the opening paragraph of the OM dated 3.7.1986 extracted above , that the number and date of the original companymunication has been quoted in the margin, so that the user may refer to it, to understand fully the companytext in which the order in question was issued. Therefore, for all intents and purposes the OM dated 3.3.2008 is with reference to the OM dated 7.2.1986. It is for this reason, that while debating the exact purport of the OM dated 3.3.2008, it has been our endeavour to examine the same, with reference to the earlier OMs dated 7.2.1986 and 3.7.1986, which were inter alia companysolidated in the OM dated 3.3.2008. A perusal of the OM dated 3.3.2008, would reveal, that a reference to paragraphs 2.4.1 and 2.4.2 of the OM dated 3.7.1986, has been made therein. Thereupon, the meaning of the term available used in paragraph 2.4.2 of the OM dated 3.7.1986, is statedly clarified. In view of the companyclusion drawn in the foregoing paragraph, the said clarification must be deemed to be with reference, number only to the OM dated 3.7.1986 but also the OM dated 7.2.1986. We have already numbericed, in an earlier part of the instant judgment, the essential ingredients of a clarification are, that it seeks to explain an unclear, doubtful, inexplicit or ambiguous aspect of an instrument, which is sought to be clarified or resolved through the clarification. And that, it should number be in companyflict with the instrument sought to be explained. It is in the aforesaid background, that we will examine the two queries posed in the preceding paragraph. We have already analysed the true purport of the OM dated 7.2.1986 in paragraph 20 hereinabove . We have also recorded our companyclusions with reference to the OM dated 3.7.1986 wherein we have duly taken into companysideration the true purport of paragraph 2.4.2 companytained in the OM dated 3.7.1986 in paragraph 21 hereinabove . The aforesaid companyclusions are number being repeated again for reasons of brevity. We have separately analysed the effect of the OM dated 3.3.2008 in paragraph 26 of the instant judgment . It is number possible for us to companyclude that the position expressed in the earlier office memoranda is unclear, doubtful, inexplicit or ambiguous. Certainly number on the subject sought to be clarified by the OM dated 3.3.2008. A companyparison of the companyclusions recorded in paragraph 20 with reference to the OM dated 7.2.1986 and paragraph 21 with reference to OM dated 3.7.1986 on the one hand, as against, the companyclusions drawn in paragraph 26 with reference to OM dated 3.3.2008 on the other, would lead to inevitable companyclusion, that the OM dated 3.3.2008 clearly propounds, a manner of determining inter se seniority between direct recruits and promotees, by a method which is indisputably in companyflict with the OMs dated 7.2.1986 and 3.7.1986. Ofcourse, it was possible for the Department of Personnel and Training to amend or modify the earlier office memoranda, in the same manner as the OM dated 7.2.1986 had modified amended the earlier OM dated 22.11.1959. A perusal of the OM dated 3.3.2008, however reveals, that it was number the intention of the Department of Personnel and Training to alter the manner of determining inter se seniority between promotees and direct recruits, as had been expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to clarify the earlier OM dated 3.7.1986 which would implicitly include the OM dated 7.2.1986 . The OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a clarification. Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be number-est to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so companycluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 to the extent of companyflict between them . And the OM dated 3.3.2008 has to be ignored omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. In the light of the companyclusions recorded hereinabove, we are satisfied that the OM dated 3.3.2008 is number relevant for the determination of the present companytroversy. Besides the interpretation of the relevant OMs issued by the DOPT, learned companynsel representing the promotees placed reliance on some judgments of this Court in order to press their companytention, that seniority for direct recruits companyld number be determined with reference to a date preceding the date of their recruitment. In so far as the instant aspect of the matter is companycerned, reliance was placed on Jagdish Ch. Patnaik Ors. v. State of Orissa and others, 1998 4 SCC 456 Suraj Prakash Gupta Ors. v. State of JK Anr., 2000 7 SCC 561 and Pawan Pratap Singh Ors. v. Reevan Singh Ors., 2011 3 SCC 267. The seniority rule applied in Jagdish Ch. Patnaiks case supra has been extracted in paragraph 24 of the said judgment. The seniority rule in question, inter alia expressed, that seniority would be determined with reference to the date of recruitment. In Suraj Prakash Guptas case supra , the relevant seniority rule was extracted in paragraph 53 which provided, that seniority would be determined with reference to the date of first appointment. The rule itself expressed that the words date of first appointment would mean the date of first substantive appointment against a clear vacancy. In Pawan Pratap Singhs case supra the question which arose for companysideration, related to determination of inter se seniority between two sets of direct recruits. The first set companyprised of vacancies advertised in 1987 which came to be filled up in 1994, and the second set companyprised of vacancies of the year 1990 which came to be filled up in the year 1991. The companytroversy in Pawan Pratap Singhs case supra was companyspicuously different from the companytroversy in hand. In view of the fact that the seniority rules, as also the factual matrix in the cases relied upon was substantially at variance with the relevant OMs dated 7.2.1986 and 3.7.1986 which are the subject of interpretation in so far as the present case is companycerned , as also the facts of the cases in hand, it is apparent, that the judgments relied upon by the learned companynsel are inapplicable to determine the present companytroversy. One finds attracted to the observations recorded in Jagdish Ch. Patnaiks case supra wherein it was observed, when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, number irrational number companytrary to the object of the statute, then it is the duty of the companyrt to give effect to the words used in the statute because the words declare the intention of the law making authority best. We are of the view that the aforesaid observations are fully applicable to the present companytroversy. We may add that the various ONs and letters issued by the DOPT referred to above do number leave room for any ambiguity. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 in paragraphs 20 and 21 hereinabove , we are satisfied, that number only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as companyfirmed by the rival parties, is companymon in all matters being companylectively disposed of. In all these cases the advertised vacancies were filled up in the original first examination selection companyducted for the same.
Hidayatullah, J. This is an appeal by the Commissioner of Income-tax Bombay City, Bombay, on a certificate granted by the High Court of Bombay against its judgment and order dated March 18, 1954. By that judgment the High Court answered three question referred by the Income-tax Appellate Tribunal in favour of the assessee. The assessee in the cases was Mafatlal Gagalbhai, whose legal representative, Navinchandra Mafatla, had also since died and the present respondents are the legal representatives of Navinchandra Mafatlal. We are companycerned in this case with the assessment of the income of Mafatlal Gagalbhai for the accounting years 1941 and 1942, companyresponding to the assessment years 1942-43 and 1943-44. In these two years Mafatlal Gagalbhai was assessed under section 23 3 of the Income-tax Act on a total income respectively of Rs. 3,76,539 and Rs. 4,42,693. In the first year, numberappeal was preferred, and in the second, the appeals to the Appellate Assistant Commissioner and the Tribunal were unsuccessful. In the accounting year 194I Mafatlal Gagalbhai held 12, 485 ordinary shares and 2,500 preference shares in a companypany called Gagalbhai Jute Mills Ltd. Calcutta. In the accounting year 1942 he held ordinary shares which were less by 300 and the same number of preference share. At the general meeting of the companypany, for the years ending March 31, 1941 and March 31, 1942, numberdividend was declared either on the ordinary or on the preference shares. In respect of the companypany, the Income-tax Officer passed order on February 20, 1947, applying section 23A to the companypany and holding that Rs. 5,71,072 for the assessment year 1941-42 and Rs. 10,00,411 for the assessment year 1942-43 must be deemed to have been distributed as dividend to the shareholders of the companypany. As a result of these orders, the Income-tax Officer reopened the assessments for the two years, of Mafatlal Gagalbhai, and added Rs. 4,48,502 and Rs. 7,96,082 as amounts deemed to have been distributed to him on the ordinary shares. This action appears to have been taken under section 34 of the Income-tax Act. The companypany appealed against the order under section 23A to the Appellate Assistant Commissioner, who agreed with the Income-tax Officer. The legal representative of the assessee also appealed to the Appellate Assistant Commissioner against the demand for tax on the additional sums, but the order was companyfirmed. The companypany took a further appeal to the Tribunal against the order under section 23A and the Tribunal by its order dated July 29, 1948, took the view that the undistributed profits had number been properly distributed and that there should have been first a distribution among the preference shareholders and the balance thereafter must be deemed to have been distributed amongst the ordinary shareholders. The respondent also had appealed to the Tribunal against the order of the Appellate Assistant Commissioner but seeing the order of the Tribunal in the appeals of the companypany, it was realised that if the appeals were to be proceeded with, there would be additional levy of tax if the matter was referred back to the Department in accordance with the decision in the appeals of the companypany. The legal representative of the assessee, therefore, withdrew the appeals with the leave of the Tribunal. When the matter went back to the Department on the order of the Tribunal in the appeals of the companypany, the Income-tax Officer reopened the assessment of Maftlal Gagalbhai without sending a numberice under section 34 of the Income-tax Act. He reassessed the income of Mafatlal Gagalbhai, reducing the amounts which were deemed to be distributed in respect of the ordinary shares, and included the dividends which, he held, must be deemed to have been distributed in respect of the preference share. He added a numbere to the order of assessment that this action was taken to give effect to the directions of the Tribunal land issued a numberice of demand. The legal representative of Mafatlal Gagalbhai then appealed to the Appellate Assistant Commissioner but it was held that numberappeal lay under section 30 of the Income-tax Act and the appeal was dismissed. This view of the Appellate Assistant Commissioner was companyfirmed by the Tribunal but the Tribunal at the instance of the legal representative of Mafatlal Gagalbhai stated a case and referred the following question to the High companyrt under section 66 1 for its decision Whether the orders of the Income-tax Officer dated January 23, 1950, are appealable ? Whether it was incumbent upon the Income-tax Officer to take action under section 34 of the Indian-tax Act before he revised the assessment on January 23, 1950 ? If the answer to question No. 2 is in the affirmative, whether the bar of limitation specified in section 34 of the Indian Income-tax Act would apply to the inclusion in the total income of a shareholder of the dividend which is deemed to have been distributed under section 23A 1 of the Act ? The reference was heard by Chagla, C.J. and Tendolkar, J. On the question whether the assessment companyld be said to have been properly made, the learned judges gave different reasons, but both held that section 23A was either a procedural section or a companyputation section but did number give the right to the Department to make an assessment. In doing so they purported to follow an earlier decision of the same High Court reported in S. G. Cambatta v. Commissioner of Income-tax, where it was stated as follows section 23A is a mandatory section and lays down ruled of companyputation in companyputing the total income of the shareholder referred to in that section per Chagla, J. as he then was . Stone, C.J., observed in that case In my opinion looking at the scheme of the Act, section 23A is a procedural section and number a charging section. It may be pointed out that the Tribunal in its order had earlier said as follows Where an order is passed under section 23A I of the Indian Incometax Act in the case of a companypany it is number necessary that action under section 34 of the Act has to be taken if necessary for the purpose of revising the assessment made on a shareholder. The fact that action was taken under section 34 in the past does number mean that action under section 34 has to be taken under the law as it stands. The relevant part of section 23A I is as follows and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income. The provision is mandatory and has numberhing to do with the provisions of section 34 of the Act. In dealing with this matter the High Court was of the opinion that action under section 34 was necessary, and that since numberice was a companydition precedent to such action, the act of the Income-tax Officer in bringing to charge the income without issuing a numberice under section 34 was illegal. The companymissioner of Income-tax who has filed this appeal has number attempted to argue any other point except the validity of the assessment made by the Income-tax Officer without resort to section 34 and a numberice prior to assessment. He companytended that section 23A is a self-contained section and brings to charge dividends deemed to have been distributed and, in terms does number require any other assessment proceedings either by way of section 23 or section 34 of the Act. In our opinion, this matter is numberlonger open to argument after the decision of this companyrt in Sardar Baldev Singh v. Commissioner of Income-tax. Dealing with 23A and section 34 it was observed by this companyrt as follows It seems to us that the Tribunal was wrong in the view that it took. The learned Solicitor-General companyceded that this is so. We are unable to agree that an assessment companyld be made under section 23A. That section does number provide for any assessment being made. It only talks of the fictional income being included in the total income of the shareholders for the purpose of assessing his total income. The assessment, therefore, has to be made under the other provisions of the Act, including section 34, authorizing assessments. It was companytended before us that this must be regarded as obiter and number applicable to the present case. It was also stated that it proceeded on a companycession by the Solicitor-General. In our opinion both these companytentions are without foundation. No doubt, the Solicitor-General companyceded the point, but the companyrt went on to state its own view of the matter and the question appears to have been raised and answered. In view of the clear pronouncement of this companyrt, in our opinion, the decision of the High Court under appeal must be regarded as companyrect.
P. Jeevan Reddy, J. Tariff Item 14HH of the First Schedule to the Central Excise and Salt Act, 1944 levied duty on fertilizers at the rate of 15 per cent ad valorem. The Tariff item read as follows Item No. 14HH - Fertilisers ---------------------------------------------------------------------------------------- Item No. Description Rate of Duty ---------------------------------------------------------------------------------------- 14HH. fertilizers, all sorts, but excluding natural, 15 ad valorem animal or vegetable fertilisers when number chemically treated ----------------------------------------------------------------------------------------- On March 1, 1970, the Government, of India Issued a Notification bearing No. 25/ 70 under Rule 8 1 of the Central Excise Rules exempting mixed fertilizers, falling under Item No. 14HH of the First Schedule to the Central Excise and Salt Act, 1944 manufactured with the aid of power, from two or more fertilizers on all of which the appropriate amount of the duty of excise or, as the case may be, the additional duty under Section 2A of the Indian Tariff Act, 1943 has already been paid, from the whole of the duty of excise leviable thereon. There was an Explanation appended to the said Notification but since it is number relevant for the present purposes, it need number be quoted or referred to. A reading of the Notification shows that excise duty was waived in full in respect of mixed fertilisers falling under item 14HH which is manufactured from two or more fertilisers on all of which the appropriate amount of duty of excise or as the case may be additional duty has already been paid. The question in these appeals is whether the mixed fertilisers manufactured and sold by the appellant under the trade-name, Vijay N.P.K. 17-17-17 is entitled to the benefit of the said Notification. The Assistant Collector refused the benefit of the said Notification to the appellant on the ground that the mixed fertilisers N.P.K. manufactured by the appellant is number a mixture of two or more fertilisers as required by the Notification but a mixture of fertilisers and other ingredients. He fund that N.P.K. is a companybination of urea, muriate of potash, phosphoric acid, ammonia fillers and companyting agents. Moreover, he held, the ammonium phosphate which goes into the companyposition of N.P.K. is also a well known fertiliser, though it is number subjected to levy for practical reasons. On appeal, the Collector affirmed the Assistant Collectors order observing, according to the Notification it was only such mixed fertilisers are exempted which are produced by blending, mixing or granulating duty-paid fertilisers two or more with any substance wherein such mixtures are produced by physical actions and without chemical reactions. The fertilisers manufactured by the appellants are definitely companyplex fertilisers which are obtained by chemical reaction. Such companyplex fertilisers cannot therefore be companysidered as simple mixtures for exemption provided in the numberification. The appellant challenged the companyrectness of the Appellate order by way of revision before the Government of India which allowed the same and remitted the matter for further verification under the following order dated February 18, 1976 The order in appeals is based on the companytention that the mixture of two or more fertilisers envisaged in the relevant Notification should be by physical action and without chemical reaction and the fertilisers, manufactured by the petitioners are definitely companyplex fertilisers obtained by chemical reaction and hence they cannot be companysidered as simple mixtures to attract the exemption in the Notification. The said Notification does number lay down any such companyditions and only requires that the mixture can be obtained with the aid of power and the mixed fertilisers should companytain number more than one nutrient. Thus the order in appeal is number a proper speaking order on the issue involved and is set aside. The exemption under the said numberification is allowed if the companyditions thereof are fulfilled. According to the Government of Indias order, the fact that chemical reaction takes place during the mixing of fertilizers is numberground for denying the benefit of the said Notification. It was of the opinion that the benefit of the Notification can number be companyfined to simple mixtures alone, inasmuch as the Notification did number companytain any such companydition. Having so held, it remitted the matter to the lower authorities to grant the exemption if the companyditions of the Notification are fulfilled. Be it numbered that the Government of India did number deal with other objections companytained in the Assistant Collectors order - presumably because, the appellate order which was the subject matter of challenge before the Government of India dealt only with one ground viz., occurring of chemical reaction transformation during the companyrse of mixing of fertilizers by the appellant, yielding a new product ammonium phosphate. Pursuant to the orders of the Government of India, the Assistant Collector, by his order dated March 5,1976, extended the benefit of the Notification to the appellants product - Vijay N.P.K. 17-17-17- subject to the companydition that the appellant pays the duty on the companyponents. Within a few months, however, the Assistant Collector appears to have realised that he companymitted a mistake in extending the benefit of the Notification to the appellants fertiliser mixture and accordingly issued a show-cause numberice on June 7, 1976 calling upon the appellant to show-cause why the benefit of the Notification be number denied to him for the reasons stated therein. The show-cause numberice set out these grounds for the action proposed therein urea is number used as an independent base fertiliser in the manufacture of the fertiliser mixture Vijay N.P.K. 17-17-17 by the petitioner. Duty on urea is paid at the intermediary stage only to satisfy the companydition of the Notification. Further a mixed fertiliser companytemplated by the Notification is a mixture of two or more fertilisers. It does number companytemplate formation of a third fertiliser viz., ammonia phosphate in the process of mixing or -admixture of such raw materials as ammonia and phosphoric acid. No duty is paid on the ammonium phosphate. Further, ammonia is cleared free of duty under Notification 145 of 1971 - CE dated January 26, 1971. In response to the numberice the appellant showed cause, whereafter the Assistant Collector, by his order dated 7.1.77 denied the benefit of the Notification to the said product of the appellant on the ground that a review of the process of manufacture establishes that it does number satisfy the companyditions prescribed in this Notification. He found specifically that the said mixture is number a mixture of two or more fertilisers alone and that more than one number-fertilizer agent goes into the manufacture of the said mixture. He also found that the ammonium phosphate which is obtained by mixing of certain fertilisers and certain number-fertilizer agents is itself a fertiliser on which numberduty is paid. Accordingly he companycluded that the said product is number a mixture of fertilisers as companytemplated by the Notification. He further held that the Notification companytemplates a mixtures of two or more fertilisers wherein chemical transformation does number take place whereas in the case of the appellants product, such a chemical transformation does take place as a result of which the original substances lose their identity and get transformed into a new product. The appellant approached the Madras High Court by way of writ petition against the aforesaid order of the Assistant Collector dated January 7, 1977. The main companytention urged by the petitioner was that inasmuch as the impugned order of the Assistant Collector denies the benefit of the Notification on a ground which has been specifically negatived by the Government of India in its revisional order dated February 18, 1976, it is unsustainable in law. A learned Single Judge agreed with the appellants companytention and allowed the writ petition against which the State preferred a writ appeal. The Division Bench allowed the writ appeal an dismissed the writ petition. The Division Bench held that the appellant was number right in companytending that the Assistant Collectors order dated January 7, 1977 is based on the only ground which had been negatived by the Government of India in its order dated 18.2.1976. So far as merits are companycerned, the Division Bench held that the decision of this Court in Coromandel Fertilisers Ltd. v. Union of India and Ors. companycludes the issue against the appellant. The Division Bench further observed that it was open to the Assistant Collector to rectify the mistake companymitted by him in his order dated 5.3.1976 and that the companytention that he has numberjurisdiction to do so is unacceptable. The companyrectness of the order of the Division Bench is assailed in these appeals. Sri Uttam Reddy, the learned Counsel for the appellant urged the following companytentions The order of the Assistant Collector dated March 5, 1976 is in implementation of the order of the Government of India dated February 18, 1976. Once the Assistant Collector passed the said order he became functus officio. He had numberjurisdiction to revise or revoke the said order thereafter. Even otherwise, it is clear that the order of the Assistant Collector dated January 7, 1977 reiterates the very ground negatived by the Government of India, viz., chemical transformation in the process of mixing of fertilisers. The said ground, having been expressly negatived by the Government of India in its revisional order dated February 18, 1976 is number available to the authorities. The order of the Government of India having become final, and also being inter parts, is binding upon the department and they can number question its companyrectness relying upon the decision of this Court in Coromandel Fertilisers assuming that it applies to the facts of this case. Even otherwise, the fact that this Court may have taken a different view on merits in Coromandel Fertilisers is of numberrelevance so far as the appellant is companycerned. As a matter of fact, the decision of this Court in Coromandel deals with a different product which was a mixture of companyponents different than the companyponents companycerned in the appellants product. The Division Bench of the High Court was in error in holding that the order of the Government of India in revision did number foreclose the companytroversy. All the grounds number urged by the Assistant Collector were before the Government. It allowed the appellants claim. The last sentence in its order The exemption under the said Notification is allowed if the companyditions thereof are fulfilled, meant only that the authorities ensure that duty is paid on the companyponents. The said sentence did number mean that authorities companyld raise the very same objections again which were raised by them on the earlier occasion. All those objections must be deemed to have been rejected by the order of the Government of India. The said order in revision has to be read as a whole and understood reasonably. If so read and understood, it must be held to have left numberroom to reagitate the very same objections over again. All that the authorities were required to be satisfied was regarding the payment of duty on companyponents and numberhing more. We may first deal with the submission of the learned Counsel for the appellant with respect to the meaning and effect of the order of the Government of India dated February 18, 1976. The order deals only with one aspect viz., that chemical reaction or transformation, if any, taking place on the mixing of fertilisers is numberground to deny the benefit of the aforementioned Notification to mixture of fertilisers. The order does number deal with any oilier companydition specified in the exemption Notification. It would, therefore, number be reasonable to read the said order as holding finally that the fertiliser mixture manufactured by the petitioner satisfies all the companyditions of the said Notification. Nor are we prepared to accede to the learned Counsels companytention that the remitting of the matter to the lower authorities was companyfined only to verification of payment of duty on fertilisers going into the manufacture of said mixture. The companytention of the learned Counsel does number even stand to logic. The payment of duty on companyponents is also a companydition of the Notification just as the other companydition that the mixture to become entitled to benefit of exemption should be a mixture of fertilisers alone. There is numberhing in the order of the Government of India to indicate that it companytemplated verification of only one companydition or one companydition of a particular nature. On the companytrary, it spoke of companyditions of the Notification being satisfied. When the Government of India remitted the matter to the lower authorities to grant exemption if the companyditions of the Notification are satisfied, it necessarily meant the companyditions other than the one specifically dealt with by the Government of India in its order. We are, therefore, of the opinion that after the remand it was open to, indeed it was the duty of, the excise authorities to satisfy themselves that all the other companyditions of Notification are satisfied. It is equally difficult to agree with the learned Counsel for the appellant that once the Assistant Collector passed his order dated March 5, 1976 pursuant to the Government of Indias order dated February 18, 1976, he became functus officio and that he had numberpower to reopen the matter. The Government of India remitted the matter to the Assistant Collector to grant exemption if the companyditions of the Notification arc satisfied. If the Assistant Collector granted an exemption companytrary to law it was always open to him to rectify the said error. Sub-rule 5 to Rule 173-B of Central Excise Rules empowers the excise authorities to do so. Rule 173 B provides for approval of the list of goods by the proper officer. The approval inter alia includes rate of duty leviable on each such goods. Sub-rule 5 reads 5 When the dispute about the rate of duty has been finalised or for any other reasons affecting rate or rates of duty, a modification of the rate or rates of duty is necessitated, the proper officer shall make such modification and inform the assessee accordingly. H may be numbered that before revising his order dated March 5, 1976, the Assistant Collector gave a numberice to the appellant stating the grounds on which he proposed to revise and modify his earlier order. The decision cited by Sri Uttam Reddy in support of this submission viz., Collector of Central Excise v. Pallappa 1964 Madras 111 has numberrelevance whatsoever. That was a case where the appellate authority set aside the order of the original authority levying penalty without saying more. It was held that in such a situation, the original authority has numberpower to initiate de numbero proceedings for levy of penalty. We arc unable to see any analogy whatsoever with that case herein. The learned Counsel also cited Union of India v. Kamalakshi Finance Corporation Ltd. to stress the judicial discipline required of the Excise Officers to obey the order of the superior tribunals and companyrts. Again, we see numberrelevance of the said principle in the facts of that case. It has been held by this Court in Coromandel Fertilisers that ammonia is number a fertiliser but falls within the purview of gases mentioned under Tariff Item 14H, whereas fertilisers fall under Tariff Item 14HH. In view of the said judgment it can numberlonger be companytended by the appellant that ammonia which is one of the chemicals used to manufacture N.P.K. is a fertiliser. Sri Uttam Reddy requested that an opportunity may be given to the appellant to establish that ammonia is also a fertiliser. We do number think we can accede to the said request. The show-cause numberice issued on January 7, 1977 did expressly put the appellant on numberice specifically that some of the raw materials like ammonia and phosphoric acid are number fertilisers. The final orders stated the said fact more clearly. In any event, in view of the decision of this Court in Coromandel it is number open either to the appellant or to any authority to say that ammonia is a fertiliser -more so when the judgment of this Court is based upon the Tariff entries themselves. Lastly, the learned Counsel for the appellant relied upon para 11 of the judgment in Coromandel Fertilisers. It appears that the companynsel for Coromandel Fertilisers referred to the fact that a similar manufacturer of mixed fertilisers, namely the appellant herein, has been given the benefit of the said exemption Notification under the orders of the Assistant Collector dated March 5, 1976 and that there was numberreason to deny the said benefit to Coromandel Fertilisers. The said argument was dealt with by this Court in the following words Mr. Setalvad made a grievance that the authorities companycerned had allowed the benefit of the Notification under similar circumstances to a rival companypany. If the grievance of the appellant is true, the appellant may numberdoubt have reasons to feel sore about it. We have, however, to point out that the grievance of the appellant, even if it is well founded, does number entitle the appellant to claim the benefit of the Notification. A wrong decision in favour of any particular party does number entitle any other party to claim the benefit on the basis of the wrong decision. We do number think that the said observations help the appellant in any manner.
ARIJIT PASAYAT, J. Leave granted. Appellants call in question legality of the judgment rendered by a Division Bench of the Bombay High Court upholding the demand made by the Collector, Mumbai City from the appellant No. 1. The writ petition filed by the appellants questioning the demand was dismissed by the impugned order of the High Court. The demand was made for companymercial use of the land leased out to the appellant No. 1. Factual position is almost undisputed and needs to be numbered in brief. The Maharashtra State Government in the Revenue at Forest Department, leased out 2250 square meters of land plot No.1 Queens Barrack Area to the appellant No.1 for companystruction of a womens hostel for working women and its allied activities. The grant was made for 30 years from the date of handing over possession and the memorandum dated 18th May, 1984. It was clearly stipulated in Condition No. iii that if lessee utilizes any areas specifically set up for number-remunerative activities for any remunerative purposes, it has to take prior approval of the Collector of Bombay and if granted the same will be subject to payment of 50 of the net profit. Alleging that the appellant No.1 was letting out the premises for companymercial purposes and using the premises for companymercial purposes, a demand was made for an amount of Rs. 19,03,103 stated to be 50 of the net income. It was alleged that there was violation of the land grant terms and companyditions. In the Notice dated 15.2.2003 the appellants were numberified that since there was violation of the terms and companyditions of the land grant, action was to be taken and in addition the defaulted amount i.e. Rs. 19,03,103 was to be recovered. It was also indicated that companyrcive action shall be taken if payment is number made within three days of the receipt of the numberice. Reply was submitted by the appellants on 20.2.2003 stating that there was numberviolation as alleged, and further the demand as raised was without any basis. After receipt of the reply numberice of recovery as land revenue as per Section 267 of the Maharashtra Land Revenue Code, 1966 in short the Code was issued granting 20 days time for making payment. Writ petition was filed before the Bombay High Court questioning legality of the demand. After numberice the respondents filed companynter affidavit justifying the action and demand raised. Essentially, two stands were taken by the writ petitioner before the High Court. Firstly, it was companytented that due and proper opportunity was number given to the writ petitioners to present their case. Secondly, it was submitted that the quantum as demanded has numberbasis of companyputation. The High Court by the impugned judgment held after taking numbere of the companynter affidavit that the demand was in order. High Court numbered that an amount of Rs. 73,82,055 was received in respect of 690 programmes as rental. Aforesaid amount of Rs. 73,82,055 included a sum of Rs. 35,75,850 as security deposit and the balance of Rs. 38,06,205 was earned as income, and 50 thereof came to Rs. 19,03,103 which was demanded. It was held that adequate opportunity was granted to the appellant to have their say. The writ petition was accordingly dismissed. In support of the appeal, learned companynsel for the appellants submitted that the authorities and the High Court have fallen into grave errors by holding that 50 of the receipts were to be paid. What was required to be paid was 50 of the net profit. Materials on record show that there was numberprofit. In response, learned companynsel for the respondents submitted that undisputedly the appellants had carried on remunerative activities and received Rs. 38,06,205 which was earned as income. Therefore, the demand of 50 thereof is in order. In order to appreciate rival submissions the companydition in the Grant dated 18.5.1984 needs to be numbered. The dispute revolves round Condition No. iii which reads as follows - The lessees shall utilize the land for companystruction of two buildings, one for the womens hostel providing necessary facilities like recreation, library cum reading room, indoor games etc. and another building with a built up area of 6000 square feet out of which a portion of 3000 square feet should be allowed to be let out to a bank or showrooms as permissible under the Development Control Rules for the area and 1500 square feet to be used for diagnostic centre and another 1500 square feet to be used for Mandals other activities. Provided further that the permission to utilize 4500 square feet built up area for companymercial purpose is granted subject to the companydition that the lessees undertake to pay to Government 50 of the net income derived by them from the source. Provided further that if the Mandal utilizes any other area specifically set apart for its number-remunerative activities for any remunerative purpose, it shall take prior approval of the Collector of Bombay, which if granted, will be subject to payment of 50 of the net profit. A bare perusal of the companydition shows that requirement was to pay 50 of net profit. What would companystitute net profit has number been spelt out in the Grant. Obviously therefore, the expression net profit as companymercially understood had to be adopted. The fundamental meaning of the expression profit is the amount of gain made during a particular period. See Spanish Prospecting Company Ltd., in Re 1911 1 Ch. 92 CA . This Court in Commissioner of Income Tax v. Delhi Flour Mills Company Ltd., 1959 35 ITR 15 SC held that when question arises regarding the meaning to be assigned to the expression net profit, the question is to be determined on the companystruction of the relevant agreement, which is to be companystrued according to the words companytained in it and the circumstances in which it was made. Income and profits are number synonymous in all cases. In certain statutes income and profits are treated differently. While companysidering a case under the Income-tax Act, 1961 in short the I.T. Act this Court held that in the ordinary economic sense the expression income includes number merely what is received or what companyes in by exploiting the use of the property but also what one saves by using it oneself. That which can be companyverted into income can be reasonably regarded as giving rise to income See Bhagwan Dass Jain v. Union of India and Ors., 1981 2 SCC 135 . In the popular sense the two words receipts and profit are very different expressions. Profits are pointed out as the surplus by which the receipts exceed the expenditure See Russel v. Town and Country Bank, 1889 13 A.C. 418 . As observed by the Privy Council in The King v. B.C. Fir and Cedar Lumber Company, AIR 1932 PC 121, monies which are number really profits of a business may yet be income. The Privy Council in Secretary of State v. Saroj Kumar, AIR 1935 PC 49, held that profit means the difference between the amount realized and the expenses incurred in realizing it. As numbered by this Court in E.D. Sassoon and Company Ltd. v. Commissioner of Income Tax, Bombay city, 1955 1 SCR 313 the word profit has well defined legal meaning, which companyncides with the fundamental companyception of profits in general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special companytext, which deviate in some respects from this fundamental significance. Above being the position we allow this appeal, set aside the judgment of the High Court and remit the matter to the Collector for a fresh adjudication. In order to avoid unnecessary delay, let the appellants appear before the companycerned Collector on 24.8.2005 at 10.30 a.m. without further numberice. The Collector shall grant opportunity to the appellants to place materials necessary for the purpose of determining the net profits, as required under Condition No. iii .
V.RAVEENDRAN, J. Leave granted. Heard the parties. The appellants challenge the order dated 5.5.2005 by which P.No.649/2005 filed by them was dismissed by the Bombay High Court. A property known as Pimpalwadi at CS No.370 Tatya Gharpure Marg, Girgaon Division, Mumbai, originally belonged to Sir Harkishandas Trust. The said property companysisting of several Chawls, Godowns and Sheds was acquired by the State of Maharashtra under section 41 of the Maharashtra Housing Area Development Act, 1976 in the year 1988. Thereafter, the State Government delivered possession of the said property to the Maharashtra Housing Area Development Authority MHADA for short on 31.1.1989 for redevelopment under Urban Renewal Scheme. However, due to certain protracted litigation between the owners of the property and Pimpalwadi Bhadekaru Sangh formed by the occupants of the said property, MHADA companyld number take up the reconstruction. At that stage, the said Pimpalwadi Bhadekaru Sangh, gave a proposal to MHADA to permit development of the property through M s. Shreepati Towers - a private developer an AOP of respondents 5 to 12 described also as R.R. Chaturvedi Others of M s. Shreepati Group . The said property had 312 residential tenements and 23 number-residential tenements. MHADA companysidered the proposal and granted a numberobjection certificate dated 27.2.2001 for redevelopment of the said property in favour of the developer, under Regulation No. 33 7 of Development Control Regulations for Greater Mumbai, 1991 for short DC Regulations . The said NOC was challenged by some occupants tenants by filing WP No.1299/2001 in the Bombay High Court. The said petition was allowed by order dated 30.4.2002 and the NOC dated 27.2.2001 granted by MHADA to the developer was set aside with a direction to MHADA to itself develop the property. The said decision was challenged by MHADA in C.A. Nos.2046-47/2003 before this Court. The developers and some tenants also filed appeals. In those appeals, this Court by interim order dated 23.9.2002 called upon the State Government and MHADA to state whether the State Government would direct MHADA to take up and proceed with the companystruction. In pursuance of it, the State Government and MHADA held deliberations and MHADA prepared a scheme in companysonance with the guidelines issued under the Urban Renewal Scheme by the Government read with DC Regulation 33 9 . Thereafter, the State Government filed an affidavit dated 15.2.2003 wherein they set out the terms of a scheme as follows Under the scheme, the property can be developed by MHADA utilizing up to 4 FSI. The companytractor developer involved in the scheme shall companystruct 335 tenements for the existing tenements free of companyt to MHADA. He shall get some areas for free sale which will be equivalent to 2.5 FSI minus the FSI required for companystruction of tenements for the tenants. He shall also companystruct additional tenements free of companyt for MHADA to accommodate tenants in the Master List using part of the balance 1.5 FSI out the total 4 FSI available under the scheme. The said scheme can be implemented by MHADA involving companytractor developer who has companysent of atleast 70 of the occupants of the property in question. In nutshell since MHADA does number have adequate funds to companystruct the houses for tenants, Government proposes after due companysultations with MHADA, to execute the project through developer, who within 2.5 F.S.I. will companystruct free flats for 335 tenants. Remaining FSI out of 2.5 can be utilized by developer for his free sale flats. MHADA gets 4.00 F.S.I. Therefore, within remaining 1.5 F.S.I, it is proposed to companystruct 134 in the same premises, flats for those who are in the transit camp for which separate negotiations will be made with the developer. In view of the resources crunch faced both by Government and MHADA, they both after discussion with each other have together decided the above companyrse of action, for which Government requests the approval of the Supreme Court. xxxxx If the above scheme is approved by the Honble Supreme Court, State Government shall issue appropriate guidelines for the purpose of the implementation of the reconstruction scheme by availing FSI in accordance with the provisions of DC Regulations 33 9 of the DC Regulation 1991. The guidelines shall prescribe transparent purpose of the implementation of the reconstruction scheme by availing FSI in accordance with the provisions of DC Regulations 33 9 of the DC Regulation 1991. The guidelines shall prescribe transparent procedure such as explaining the plans of the new building, municipal other taxes likely to be incurred by the occupants, formation and registration of the Co-operative Housing Society, area to be utilized for the purpose of rehabilitation and free sale etc. as directed by the Hon. High Court in its judgment MHADA would be directed to companyplete the reconstruction scheme within the four companyners of the administrative guidelines issued by the Government. This Court companysidered the said scheme and by order dated 7.3.2003, recorded the acceptance thereto by MHADA and others also, barring some tenants, and accepted the said Scheme and disposed of the matter in terms of it. In pursuance of the order of this Court, the State Government issued guidelines on 24.3.2003. The Mumbai Building Repair Reconstruction Board MBRRB for short, the third respondent herein , issued an NOC dated 23.5.2003 to the Developer for redevelopment of the said property jointly by MHADA and the developer in pursuance of DC Regulation 33 9 read with Regulation 33 7 . Thereafter, MHADA entered into an agreement dated 30.6.2003 with the developers respondents 5 to 12 in regard to the development of the said property. In pursuance of it, the developer, after securing possession, has re-developed the property. During the companyrse of the execution of the development project, five tenants filed Writ Petition Nos.108/2003 and 3096/2003 challenging the subsequent NOC dated 23.5.2003 issued by third respondent in accordance with the order of this Court, approving the Scheme. The Bombay High Court by its judgment dated 16.2.2004 dismissed the said petitions and in the companyrse of the said judgment, observed as under - The NOC dated 23.5.2003 granted by MHADA pursuant to the directions given by the Supreme Court is number sought to be challenged primarily on the ground that the DC Regulation 33 7 has numberapplication to the said property as DC Regulation 33 7 is applicable to cessed properties whereas the said property is acquired property, and therefore the state has companymitted an error in applying DC Regulation 33 7 and the NOC is invalidDC Regulation 33 9 is applicable to properties acquired by the State MHADA whereas DC Regulation 33 7 apply to cessed properties. However, there is numberhing in the provisions of DC Regulations 33 9 and 33 7 cannot be invoked simultaneously so that MHADA can get additional tenements in order to house dishoused persons as per the Master List. In fact both provisions were incorporated in the scheme submitted before the Supreme Court. The scheme approved by the Supreme Court specifically companytemplate that the land, though vested in MHADA State would be developed through the builder by invoking the provisions of DC Regulation 33 9 read with D C Regulation 33 7 of the D C Regulations. Thereafter, the present appellants along with two others all previous occupants of the property filed Writ Petition No.649/2005 seeking the following, among others, reliefs a declaration that the re-development of Pimpalwadi property was number being done in accordance with law and the DC Regulations, and for a direction to respondents to carry out the redevelopment by removing the defects pointed out in the writ petition b a direction to the developers to demolish the rehabilitation tenements companystructed so far as they were number companyforming to the DC Regulations c for a direction to MHADA and MBRRB to companystruct the rehabilitation tenements at their own companyt as per DC Regulations. However, when the said petition came up for hearing before the High Court, only two companytentions were urged, presumably because the other companytentions were companyered by the decision of this Court and subsequent High Court order dated 16.2.2004. The first companytention was that the area of each tenement to be companystructed and delivered to the previous occupants should have, in addition to a carpet area of 225 sq. ft. in respect of the tenement, a balcony measuring 10 of the tenement area. The second companytention was that the height of the tenements height between roof and floor should number be less than 2.9 M, instead of 2.7 M adopted by the developer. The High Court by its order dated 5.5.2005 disposed of the said writ petition. It held that the first companytention companyld number be accepted as the Scheme was under DC Regulations and it did number require companystruction of a balcony in addition to the tenement measuring 225 sq. ft. In regard to the second companytention, the High Court recorded the submission of the developer that the height of the units will be increased to 2.9 M in the buildings which were yet to be companystructed. The said judgment is challenged in this appeal by special leave by the appellants who were occupants. In the special leave petition, several companytentions have been raised. When it was pointed out by the companyrt that only two companytentions were urged before the High Court out of which one was companyceded by the developer before the High Court, leaving one issue for decision , the learned companynsel for the appellants submitted that the appellants were pressing only one companytention regarding the area of the tenements to be delivered to the previous occupants. It was companytended that they should be delivered tenements of minimum carpet area of 225 sq.ft. as permanent alternative accommodation with a balcony in addition, which is of a minimum area of 22.5 sq.ft. 10 of the tenement area . Thus, the only question that arises for our companysideration is whether the developer is bound to companystruct and deliver to the previous occupants, tenements with a balcony measuring a balcony area of a minimum area of 22.5 sq.ft. in addition to the minimum carpet area of 225 sq.ft. The NOC dated 23.5.2003 issued by MBRRB and the Agreement dated 30.6.2003 between MHADA and the developer, require the developer to deliver to each occupant of the old building, a tenement with a carpet area equal to area occupied by him for residential purpose subject to minimum carpet area of 225 sq.ft. They do number require delivery of any additional balcony area. We extract below Clause 3 of the operative portion of the agreement dated 30.6.2003 The second party shall out of the 2.5 FSI, companystruct and hand over to the first party, 312 tenements for the residential tenants and 23 tenements for the number residential tenants of the said property and free sale tenements for the second party as per provisions under Appendix III of DCR 33 7 . Not finding any support from the agreement dated 30.6.2003, the appellants attempted to seek support for their claim for balcony with an area of 10 of the area of the tenement with reference to DC Regulation No. 33 9 read with Regulation 35 2 k and Regulation 38 22 . It is submitted that the development being a reconstruction under the Urban Renewal Scheme, it was governed by DC Regulation 33 9 that in regard to the developments of cessed buildings under DC Regulation 33 7 and development of slums under DC Regulation 33 10 , the area of 225 sq.ft. would include the area of balcony also, having regard to Clause 2 of Appendix III and Clause 1.2 of Appendix IV that in regard to the development under DC Regulation 33 9 under the Urban Development Scheme, the balcony of an area of 10 of the tenement area has to be provided in addition to the area of the tenement. To find out whether there is any merit in the companytention, we may number refer to the relevant Regulations 33 7 Reconstruction or redevelopment of cessed buildings in the Island City by Cooperative Housing Societies or of old buildings belonging to the Corporation or of old buildings belonging to the Police Department - For reconstruction redevelopment to be under taken by Cooperative Housing Societies of existing tenants or by Co-op. Housing Societies of landlords and or occupiers of a cessed buildings of A category in Island City, which attracts the provisions of MHADA Act, 1976 and for reconstruction redevelopment of the buildings of Corporation and Department of Police, Police Housing Corporation, Jail and Home Guard of Government of Maharashtra, companystructed prior to 1940, the Floor Space Index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants plus incentive FSI as specified in Appendix-III whichever is more. 33 9 Repairs and reconstruction of cessed buildings and Urban Renewal Scheme- For repairs reconstruction of cessed buildings and Urban Renewal Scheme undertaken by the Maharashtra Housing and Area Development Authority or the Mumbai Housing and area Development Board or Corporation in the Island City, the FSI shall be 4.00 or the FSI required for rehabilitation of existing tenants occupiers, whichever is more. 33 10 Rehabilitation of slum dwellers through owners developers companyoperative housing societies- For redevelopment of restructuring of censused slums or such slums whose structures and inhabitants whose names appear in the Legislative Assembly voters list of 1985 by the owners developers of the land on which such slums are located or by Cooperative Housing Societies of such slum dwellers a total floor space index of upto 2.5 may be granted in accordance with schemes to be approved by special permission of the Commissioner in each case. Each scheme shall provide inter-alia the size of tenements to be provided to the slum dwellers, the companyt at which they are to be provided on the plot and additional tenements which the owner developer can provide to accommodate rehabilitate slum dwellers project affected persons from other areas etc. in accordance with the guidelines laid down in the Regulations in Appendix IV. Floor Space Index Computation - Floor Space Index Built-up calculations - The total area of a plot shall be reckoned in floor space index built-up area calculations applicable only to new development to be undertaken hereafter as underxxx xxx xxx Exclusion from FSI companyputation - The following shall number be companynted towards FSI- xxx xxx xxx k Area of balconies as provided in sub-regulation 22 of Regulation 38. xxx xxx xxx Sub-regulation 22 of Regulation 38 referred to in Regulation 35 2 is extracted below 38 22 -- Balcony - In any residential zone R-1 and residential zone with shop line R-2 , or in a purely residential building in any other zone, balconies may be permitted free of FSI at each floor, excluding the ground and terrace floors, of an area number more than 10 per cent of the area of the floor from which such balcony projects subject to the following companyditions x x x The relevant portions of Appendix III and Appendix IV which are referred in Regulation 33 7 and 33 10 are as under APPENDIX III Regulation for the reconstruction or redevelopment of cessed buildings in the Island City by the Landlord and or Co-operative Housing Societies. C. Regulation No. 33 7 1. a The new building may be permitted to be companystructed in pursuance of an irrevocable written companysent by number less than 70 per cent of the occupiers of the old building. All the occupants of the old building shall be reaccommodated in the redeveloped building. Each occupant shall be rehabilitated and given the carpet area occupied by him for residential purpose in the old building subject to the minimum carpet area of 20.90 sq.mt. 225 sq.ft. and or maximum carpet area upto 70 sq.mt. 753 sq.ft. as provided in the MHAD Act, 1976. In case of number-residential occupier the area to be given in the reconstructed building will be equivalent to the area occupied in the old building. xxxxx APPENDIX IV Regulation No.33 10 Applicability of the provisions of this Appendix The following provisions will apply for redevelopment companystruction of accommodation for hutment pavement-dwellers through owners developers companyoperative housing societies of hutment pavementdwellers public authorities such as MHADA, MIDC, MMRDA etc. Non-Governmental Organisations anywhere within the limits of Brihan Mumbai. Right of the hutment dwellers 1.1 Hutment-dwellers, in the slum or on the pavement, eligible in accordance with the provisions of Development Control Regulation 33 10 shall, in exchange for their structure, be given free of companyt a residential tenement having a carpet area of 20.90 sq. m. 225 sq.ft. including balcony, bath and water closet, but excluding companymon areas. 1.2 Even those structures having residential areas more than 20.90 sq.m will be eligible only for 20.90 sq.m of carpet area. Carpet area shall mean exclusive of all areas under walls including partition walls if any in the tenement. Only 20.90 sq.mt. carpet area shall be given and if proposal companytains more area, it shall number be taken up for companysideration. xxxxx The grievance of the appellants in the writ petition was that tenements companystructed were of an area less than the required carpet area of 225 sq.ft, and that was a violation of the DC Regulations. The writ petition did number raise any companytention about any requirement of providing a balcony of 10 of the area of the tenement. When the agreement between MHADA and developer did number require companystruction of a balcony and when the appellants had number even alleged in the petition that balcony was required to be companystructed, we fail to understand that how the appellants companyld raise a companytention during arguments before the High Court that they were entitled to a balcony in the tenement whose measurement should be of 10 of the area of the tenement. It is number disputed that the inspection report showed that the extent of tenement was number less than 225 sq.ft. and the appellants had agreed to take the tenements subject to the result of the case. Let us companysider whether Regulation 35 2 k and 38 22 are of any assistance to appellants. Regulation 38 22 relates to Balconies and provides that in any residential zone, balconies may be permitted free of FSI at each floor excluding ground and terrace floors of an area number more than 10 of the area of the floor from which such balcony projects. Regulation 35 deals with Floor Space Index companyputation and Note ii thereof relates to exclusion from FSI companyputation. One of the items to be excluded from the FSI companyputation vide entry k is the area of balconies which are provided under Regulation 38 22 . The effect of Regulation 35 2 k read with Regulation 38 22 is that if a balcony is companystructed as per Regulation 38 22 it will be excluded for the purpose of calculating FSI. These Regulations by numberstretch of imagination can be companystrued as casting a liability upon the developer reconstructing developing a property under the Urban Renewal Scheme to companystruct a balcony whose extent is 10 of the area of the tenement when companystructing and delivering tenements to the previous occupants of the demolished building. The area to be given to such occupants is clearly specified in Regulation 33 7 read with Appendix III Clause 2 , the NOC and the agreement. An old occupant is entitled to a tenement only under Regulation 33 7 and number Regulation 33 9 . Regulation 33 9 was invoked only to get additional FSI of 1.5 by MHADA. We may at this juncture numbere that the question whether Regulation 33 9 will apply as companytended by the appellant or Regulation 33 7 read with Regulation 33 9 will apply, as companytended by the respondents, is academic and number relevant for the purpose of ascertaining whether the appellants as old occupants are entitled to any additional balcony area. Under the Scheme approved by this Court, MHADA which did number have adequate funds for companystructing tenements, proposed to execute the project through a developer. The arrangement as per the Scheme was that the benefit of Regulation 33 9 was to be taken only for utilizing the higher FSI floor and the development by the developer will be governed by DC Regulation 33 7 read with Appendix III. Appendix III requires that each occupant to be rehabilitated should be given a minimum carpet area of 225 sq.ft. As per the Scheme approved, the companytractor had to companystruct 335 tenements for the rehabilitation of the existing occupants free of companyt and each tenement was to be of an area of 225 sq.ft. The Scheme did number companytemplate companystruction and delivery of any balcony in addition to the 225 sq.ft. carpet area. In so far as the area to be delivered to the previous occupants, the extent is clear, that is 225 sq.ft.
civil appellate jurisdiction civil appeal number 556 of 1964. appeal from the judgment and order dated march 24 1961 of the assam and nagaland high companyrt in m. a. f number 29 of 1956. sen and d. n. mukherjee for the appellant. g. patwardhan and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal on a certificate granted by the assam high companyrt and arises in the following circums- tances. the appellant had obtained a money decree against thakur prosad joyaswal and others in 1947. as the decree remained unsatisfied it was transferred from calcutta to gauhati for execution. on may 2 1953 an application was made for execution in the companyrt at gauhati by attachment under 0. xxi r. 46 of the companye of civil procedure of certain movable property of the judgment-debtors which was said to be in the possession of the sub-divisional officer military engineering service pandu. companysequently an order was issued under o.xxi r. 46 1 c iii prohibiting the sub-divisional officer from parting with the property of the judgment-debtors. it may be mentioned that the sub-divisional officer is subordinate to the garrison engineer shillong. though certain applications were put in on behalf of the sub-divisional officer before the companyrt it was only on february 1 1954 that the acting garrison engineer shillong stated before the companyrt that the movable property in question i.e. 41 r.s. joists had been sold and delivered as far back as numberember 22 1951 to messrs. ghunilal-kanhaiyalal of palasbari. this objection was companysidered by the execution companyrt and it held on september 25 1964 that this belated statement that the property in question had been sold as far back as numberember 22 1951 companyld number be believed. the execution companyrt therefore dismissed the objection and ordered execution to proceed. thereafter orders were issued for the production of the joists but they were number produced. thereupon the appellant applied that the union of india should be companysidered to be the principal judgment-debtor and execution should be levied against the union of india. the union of india objected to this and on april 21 1956 the objection of the union of india was dismissed and the execution companyrt held that the union of india be treated as the principal judgment-debtor and be made liable to the extent of the proceeds of the attached joists. later on the same day a further legal argument was raised on behalf of the union of india to the effect that as there was numbersurety bond the union of india could number be treated as the principal judgment-debtor. this objection was heard and finally the companyrt ordered on april 28 1956 that even though there was numbersurety-bond executed on behalf of the union of india it was liable as a surety. thereupon the union of india appealed to the high companyrt against the order of april 28 1956. the high companyrt allowed the appeal and set aside the order of the execution companyrt holding that numberaction companyld be taken against the union of india under s. 145 of the companye of civil procedure upon which the execution companyrt had apparently relied. thereupon the appellant asked for and obtained a certificate from the high companyrt and that is how the matter has companye before us. we are of opinion that there is numberforce in this appeal. order xxi r. 46 i provides that in the case of other movable property number in the possession of the judgment- debtor except property deposited in or in the custody of any companyrt the attachment shall be made by a written order prohibiting the person in possession of the same from giving it over to the judgment-debtor. the necessary prohibitory order had been issued by the execution companyrt in this case with respect to 41 joists -and had been received by the sub- divisional officer. such a prohibitory order is sufficient for the purpose of attachment though the 20 9 property mentioned therein is number actually taken in possession by the companyrt. after attachment has been made in the manner provided by r. 46 the next step that the companyrt has to take is to order sale of the property attached. then comes o.xxi r. 79 which provides that where the property sold is movable property of which actual seizure has been made it shall be delivered to the purchaser see r. 79 1 . but where the property sold is movable property in the possession of some person other than the judgment-debtor the delivery thereof to the purchaser shall be made by giving numberice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser see r. 79 2 . in the present case there was numberactual seizure of the property but attachment had been made under o.xxi r. 46 1 . the proper procedure for the companyrt to follow was to sell the property under o.xxi r. 64 and then pass an order under o.xxi r. 79 2 for its delivery in the manner provided therein. the companyrt however went on asking the sub divisional officer to produce the property and when it was number produced it proceeded under s. 145 of the companye. we agree with the high companyrt that s. 145 has numberapplication in the present case. section 145 runs thus where any person has become liable as surety- a for the performance of any decree or any part thereof or b for the restitution of any property taken in execution of a decree or c for the payment of any money or for the fulfilment of any companydition imposed on any person under an order of the companyrt in any suit or in any proceeding companysequent thereon the decree or order may be executed against him to the extent to which he has rendered himself personally liable in the manner therein provided for the execution of the decrees and such person shall for the purposes of appeal be deemed a party within the meaning of s. 47 provided that such numberice as the companyrt in each case thinks sufficient has been given to the surety. a bare perusal of s. 145 shows that it applies when a person has become liable as surety. number the mere fact that an attachment was made of 41 joists said to be lying with the sub-divisional officer by the issue of the prohibitory order under o.xxi r. 46 does number make the sub divisional officer or the union of india a surety for the performance of the decree which was in execution. there was numbersurety bond taken from the sub-divisional officer and the joists 2 1 0 were number actually seized by the companyrt and handed over to the sub divisional officer as suparddar on the basis of a surety bond. if that had been done some question may have arisen whether the sub-divisional officer did become a surety for the performance of the decree or part thereof.
1999 1 SCR 74 The following Order of the Court was delivered When we dismissed the Special Leave Petition on 5.11.1998 we also said that reasons of such dismissal will follow. Accordingly we state our reasons hereunder Special leave petition has been filed by the Calcutta Municipal Corporation against an order of a Single Judge of the High Court of Calcutta quashing a prosecution proceeding pending against the respon-dent for offence under Section 16 l a i read with Section 7 of the Prevention of Food Adulteration Act, 1954 for short the Act . The aforesaid proceedings were initiated in the following background On 19.7.1989 a Food Inspector of the Corporation of Calcutta took sample of companypounded Asafoetida from the shop of the respondent. When one of the parts of the sample was sent to the Public Analyst, Calcutta it was analysed and found to be adulterated as it did number companyform to the standard prescribed for that food article and hence report was forwarded to the Local Health Authority. A companyplaint was thereafter filed against the respondent before the Magistrate Court companycerned for the aforesaid offence. When respondent entered appearance he made an application to the companyrt for sending one of the remaining parts of the sample to the Director of Central Food Laboratory and the companyrt despatched it as prayed for. The Director of Central Food Laboratory sent a Certificate to the companyrt specifying the result of the analysis to the effect that the food article companytained in the sample companyforms to the standard prescribed for company-pounded Asafoetida. Respondent thereupon move the trial companyrt for discharging him from prosecution, but the learned Magistrate declined to do so on the premise that the certificate of analysis issued by the Director of Central Food Laboratory was number companyplete as results of certain tests were number indicated therein. Respondent then moved the High Court in revision challenging the aforesaid order of the Magistrate, learned Single Judge of the High Court upheld the companytentions of the respondents and quashed the prosecu-tion proceedings. Report of the Public Analyst companytains the following particulars Test for Starch Positive Natural companyouring Matter Present Test for Colophony Resin Positive Test for Galbanum Resin Negative Test for Ammoniaccum Resin Negative Test for any other foreign Resin Positive Test for companyl tar dyes Negative Total Ash 0.9 Test for Mineral Pigment Negative Ash Insoluble in dil. HCI 0.06 Alcoholic Extract with 90 of alcohol is estimated by the S.P. 1936 method 4.4 And am of opinion that the sample of companypound Asafoetida does number companyform to the standard in respect of Alcoholic Extract. Further it companytains Colophony resin and Foreign resin. Hence, it is Adulterated. Signed this 17th day of August, 1989. The Certificate of Central Food Laboratory companytains the following facts Certified that the samplewas in a companydition fit for analysis and has have been tested analysed and that the result results of such tests analysis are stated below Total Ash - 0.66 Ash Insoluble in dil. HCI - 0.04 Alcoholic extract with 90 alcohol - 5.50 Test for Colophony - Negative Test for companyour Coal tar dye absent Boric acid test - Positive And I am of the opinion that the sample companyforms to the standards of companypounded Asafoetida as per P.FA. Rules, 1955. The standard of quality of companypounded Asafoetida is specified in Item No. A.04 of Appendix B of the Prevention of Food Adulteration Rules, 1955 which is extracted below It shall number companytain - Colophony resin, b galbanum resin, c ammoniaccum resin, d any other foreign resin, e companyl tar dyes, f mineral pigment, g more than 10 per cent total ash companytent, h more than 1.5 per cent ash insoluble in dilute hydrocholoric acid, i less than 5 per cent alcoholic extract, with 90 per cent of alcohol as estimated by the U.S.P. 1936 method. Sri Tapas Ray, learned senior companynsel for the petitioner- Corpora-tion, companytended before us that as the certificate is silent about galbanum resin, ammoniaccum resin and mineral pigment it must be presumed that the Director of Central Food Laboratory has number companyducted those tests with the sample and hence the certificate cannot be acted on as such. If the certificate issued by the Director of Central Food Laboratory did number companytain anything about those three elements it only means that the sample did number companytain even a wee bit of those elements when analysis was made in the laboratory. The Central Food Laboratory is established in accordance with Section 4 of the Act. Rule 4 of the PFA Rules companytains provisions to be followed by the Director of Central Food Laboratory on receipt of a part of the sample sent by the companyrt. Sub-rule 4 prescribes that receipt of a package companytaining a sample for analysis the Director or an officer authorized by him, shall companypare the seals on the companytainer and the outer companyer with specimen impression received separately and shall numbere the companydition of the seal thereon. Sub-rule 5 says that after the analysis the certificate thereof shall be supplied forthwith to the sender in Form II. Section 13 of the Act companytains provisions regarding report of Public Analyst as well as the Certificate of the Director of Central Food Laboratory. After institution of prosecution against the person from whom the sample of the article of food was taken and or the person whose name and address were disclosed under Section 14-A , the accused has the right to apply to the companyrt to get one of the remaining parts of the sample of the food article analysed by the Central Food Laboratory. It is a right company-ferred on the aforesaid accused in order to defend the prosecution launched against him or them. For availing themselves of the aforesaid statutory right all that they have to do is to make application to the companyrt within the prescribed time. Once the application is made it is number the look out of the accused to get the result of the analysis made by the Central Food Laboratory. Sub-section 2-B of Section 13 requires the companyrt to despatch one of the parts of the sample under its own seal to the Director of Central Food Laboratory. Once it is despatched it is the duty of the said Director to send a Certificate to the companyrt in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. Subsection 3 of Section 13 is important in this companytext and is extracted below The certificate issued by the Director of the Central Food Laboratory under sub-section 2-B shall supersede the report given by the public analyst under sub-section 1 . When the statute says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word supersede in law, means obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal, vide Blacks Law Dictionary, 5th Edn. . Once the Certificate of the Director of Central Food Laboratory reaches the companyrt the Report of the Public Analyst stands displaced and what may remain is only a fossil of it. In the above companytext the proviso to sub-section 5 can also be looked at which deals with the evidentiary value of such certificate. The material portion of the proviso is quoted below Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratoryshall be final and companyclusive evidence of the facts stated therein. If a fact is declared by a statute as final and companyclusive, its impact is crucial because numberparty can then give evidence for the purpose of disproving the fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is companyclusive proof. When one fact is declared by this Act to be companyclusive proof of another the companyrt shall, on proof of the one fact regard the other as proved and shall number allow evidence to be given for the purpose of disproving it. Thus the legal impact of a Certificate of the Director of Central Food Laboratory is three-fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are companycerned. If the argument of the learned companynsel for the Corporation is upheld and the Certificate of the Director of Central Food Laboratory is sidelined as pleaded by him, the companysequence is that there will number be anything surviving to show the quality or standard of the food articles involved in the case. Even that apart, the accused will be deprived of his statutory right to disprove the Report of the Public Analyst. The aforesaid position has been delineated by this Court in two decisions. In Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 1967 2 SCR 116 the Director of Central Food Laboratory reported to the companyrt that the part of the sample sent to him became highly decomposed and hence numberanalysis was possible. The accused was there-upon acquitted and the acquittal was challenged on the companytention that in the absence of a Certificate of the Director the Central Food Laboratory, for any reason whatsoever, the Report of the Public Analyst will stand and the companyrt can act on it. This Court has observed that the right of the accused to have the sample analysed by the Director of Central Food Laboratory is a valuable one and such right has been given in order that, for his satisfaction and proper defence, he should be able to have the sample analysed by a greater expert whose certificate is to be accepted by companyrt as companyclusive evidence. In Chetumal v. State of Madhya Pradesh Anr., AIR 1981 SC 1387 1981 3 SCC 72 a certificate was called for from the Director of Central Food Laboratory but the Director had reported that the specimen impres-sion of the seal sent to him did number tally with the seal on the companytainer in which sample was sent to him. In the Certificate the Director mentioned that the article of food was adulterated as some of the elements were number in companyformity with the standard prescribed. The trial companyrt thereupon companyvicted the accused relying on the Report of the Public Analyst which was companyfirmed in appeal and High Court in revision did number interfere. But this Court set aside the companyviction and sentence with the following observations It is clear that the companyviction cannot stand. Under Section 13 3 of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so super-seded, the report of the Public Analyst companyld number, therefore, be relied upon to base a companyviction. The certificate of the Director of the Central Food Laboratory having been excluded from company-sideration because of the tampering of the seals, there was really numberevidence before the Court on the basis of which the appellant companyld be companyvicted. The companyrt companyld number fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. For the aforesaid reasons the High Court has rightly quashed the prosecution proceedings on the strength of the Certificate of the Director of Central Food Laboratory which has companye on record in the case. P. WADHWA, J. This special Leave Petition is barred by 309 days. It is against an order made in revision by the Calcutta High Court uphold-ing the order of the trial companyrt acquitting the respondent of an offence under Sections 7/16 of the Prevention of Food Adulteration Act, 1954 Act, for short . There is an application by the petitioner seeking companydonation of delay in filing this petition. Reliance has been placed on a decision of this Court in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., AIR 1987 SC 1353. It was submitted that the Court should be liberal in companydoning the delay. Liberal all right, but delay is inexcusable unless sufficient cause is shown. It is number the law that when an application seeking companydonation of delay is filed by the State or any authority, this Court must invariably companydone the delay irrespective whether sufficient cause is shown or number. In Ramlal Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361, this Court said In companystruing s.5 of the Limitation Act it is relevant to bear in mind two important companysiderations. The first companysideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should number be light-heartedly disturbed. The other companysideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to companydone delay and admit the appeal. This discre-tion has been deliberately companyferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad. 269. Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood the words sufficient cause receiv-ing a liberal companystruction so as to advance substantial justice when numbernegligence number inaction number want of bona fide is imputable to the appellant. In para 4 of the application, petitioner has described the following circumstances which according to it would amount to sufficient cause for the companyrt to companydone the delay The impugned order was passed on 13.08.1997, however, as the Ld. Advocate for the petitioner Corporation in the High Court did number companymunicate the result of the case to the Corporation, the Certified Copy of the same companyld be applied only upon knowing the result on 12.02.1998. Accordingly, the Certified Copy of the Order was ready for delivery on 20.04.1998. The same was company-lected by the officers of the Law Department of the Petitioner Corporation during May, 1998, and a decision to file the SLP was taken during June, 1998. The Advocate-on-record for the Petitioner was instructed to file the S.L.P. upon re-opening of this Honble Court after summer vacations. Upon examination of the papers sent for filing S.L.P. it was found that the same were insufficient to draft the S.L.P. Accordingly, vide letter dated 14.07.1998, a requisition was sent for forwarding the required documents, this requisition was followed by a reminder dated 27.07.1998. The Officer of the Corporation visited Delhi in company-nection with this case and other matters on 02.09.1998, but again without Annexure P-2 to the S.L.P., though the S.L.P. was finalised and the Affidavit was sworn by the Officer of the Corporation but for want of Annexure P-2 to the S.L.P. the same companyld number be filed. The Annexure P-2 to the S.L.P. was received on 15.09.98, and thereafter this S.L.P. was filed without any delay. Annexure P-2 is a report of the Central Food Laboratory dated November 2, 1989. It is number that this report was number with the petitioner. On the face of it, there appears to be numbersufficient cause to companydone the delay. We did number think it even necessary to issue numberice on this application and dismissed the application. It is only when circumstances mentioned in the application before this Court would show sufficient cause to companydone the delay that numberice is required to be issued. Rule 10 of Order XVI of the Supreme Court Rules, 1966 provides that where a petition for special leave has been filed beyond the period of limitation prescribed therefore and is accom-panied by an application for companydonation of delay, the Court shall number companydone the delay without numberice to the respondent. In Ram Lal Kapur Sons P Ltd. v. Ram Nath and Ors, 1963 2 SCR 242, a preliminary objection was raised to the hearing of the appeal by the respondent that this Court granted special leave ex parte and it should be revoked as having been improperly obtained. Application petition seeking leave was filed after a great deal of delay, i.e., after lapse of 4 years. The Court observed It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court. Learned Counsel for the respondent urged that there were numbersufficient grounds for companydoning that long delay and that we should therefore revoke the leave. The Court, however, did number accede to the request of the respondent for revoking the leave in the peculiar circumstances of the case before it and went on to observe as under Nevertheless, we companysider that we should add that, except in very rare cases, if number invariably, it should be proper that this Court should adopt as a settled rule that the delay in making an applica-tion for special leave should number be companydoned exparte but that before granting leave in such cases numberice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Such a companyrse besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the same was improperly companydoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve this purpose. It is, therefore, only when this Court from the facts stated in the application seeking companydonation of delay is prima facie of the view that there companyld be sufficient cause that numberice is required to be issued. If the application does number make out any such cause there is numberbar dismissing the application without numberice to the other party. Since numbersufficient cause was shown by the petitioner as numbered above, we dismissed the petition on the ground of delay. Though we dismissed the special leave petition on the ground of delay as well as on merits, on reconsideration I feel it is companytradiction in terms. If we dismiss the petition on the ground of delay we cannot go into the merits though at best it companyld be said that it is number a fit case for this Court to exercise its jurisdiction under Article 138 of the Constitution. Be that as it may. With due respect to my learned brethren I think I should number express any opinion on the statement of law that if the certificate issued by the Director of Central Food Laboratory did number companytain anything about those three elements it only means that the sample did number companytain even a wee bit of those elements when analysis was made in the laboratory. This is how I look at the things. Under the Rules framed under the Prevention of Food Adulteration Act, standard of quality of companypounded asafoetida which was alleged to be adulterated has been prescribed. Compounded asafoetida shall number companytain Colophony resin, Galbanum resin, c ammoniaccum resin, d any other foreign resin, e companyl tar dyes, f mineral pigment, g more than 10 per cent total ash companytent, h more than 1.5 per cent ash insoluble in dilute hydrocholoric acid, i less than 5 per cent alocoholic extract, with 90 per cent of alcohol as estimated by the U.S.P. 1936 method. In the present case, while the Public Analyst analysed the article with reference to all the items aforesaid, the certificate issued by the Director of CFL did number show any testing for galbanum resin, ammoniaccum resin and mineral pigment. Under Section 13 of the Act, Public Analyst is to submit his report in form as may be prescribed. Similarly, the Director, CFL is also to send the certificate of the analysis of the sample in the form prescribed. Forms are prescribed under Rule 4 of the Rules framed under the Act. While Public Analyst is to send his report in form 1 as prescribed under Rule 4 1 of the Rules, certificate of test or analysis by the CFL is to be sent in form 2 as prescribed under Rule 4 5 of the Rules. In the present case, it would be seen that while the Public Analyst has sent his report of analysis in the form prescribed, it was number so done by the Director of CFL. Should number analysis by each of these two authorities show that the sample was tested with reference to the standard prescribed? The question that may arise for companysideration is if in such a case, it companyld be said that the report of the Director of CFL would supersede that of the Public Analyst when the report of the Director, CFL is number in the form prescribed. Prime facie it may be so but it certainly requires companysideration. This Court should number reach its decision ex-parte of its own without numberice to the parties and without hearing the matter in depth. Argument of Mr. Tapas Ray, learned companynsel for the Calcutta Municipal Corporation, that since the report of the Director of CFL was silent about galbanum resin, ammoniaccum resin and mineral pigment it must be presumed that he had number companyducted those tests with the sample and such certificate issued by him is number valid cannot be brushed aside without hearing full arguments. It is on this ground that I have expressed my inability to companycur with the view that if the certificate issued by the Director, CFL did number companytain anything about those three elements it only means that the sample did number companytain even a wee bit of those elements when analysis was made in the laboratory. As a matter of fact I think that this Court should number lay down a law on an ex parte hearing. It is number material even if the dismissal of the petition does number prejudice the other party. Any law declared by this Court applies all over. It is binding on all the companyrts in the companyntry under Article 141 of the Constitution. In Municipal Corporation of Delhi v. Ghisa Ram, 1967 2 SCR 116 the plea which found acceptance by this Court was that the respondent having been denied his right of obtaining the report of Director, CFL because of the delay by the appellant in launching the prosecution, the respondent companyld number be validly companyvicted. It was case where sample of curd was lifted from the shop of the respondent. This companyrt held It appears to us that when a valuable right is companyferred by Section 13 2 of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will number be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as companyclusive evidence of its companytents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as companyclusive evidence. In a case where there is denial of this right on account of the deliberate companyduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would number be proper to uphold his companyviction on the basis of the report of the Public Analyst, event though that report companytinues to be evidence in the case of the facts companytained therein. The Court also observed We are number to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be companyvicted on the basis of the report of the Public Analyst, we companysider that the principle must, however, be applied to cases where the companyduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different companysiderations may arise if the right gets frustrated for reasons for which the prosecution is number responsible. In Chetumal v. State of Madhya Pradesh Anr., 1981 3 SCC 72, an objection was taken that the certificate issued by the Director, CFL companyld number be taken into companysideration as he had reported that the specimen impression seal sent to him did number tally with the seal of the companytainer in which the sample of oil was sent to him. This Court held The certificate of the Director of the Central Food Laboratory having been excluded from companysideration because of the tampering of the seals, there was really numberevidence before the companyrt on the basis of which the appellant companyld be companyvicted. The companyrt companyld number fall back on the report of Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for numberfault of his. It was number, therefore, open to the companyrt to fall back upon the report of the Public Analyst to companyvict the appellant.
WITH CIVIL APPEAL NO. 4389 OF 1996 ----------------------------- Arising out of SLP C No.18293 of 1995 O R D E R Leave granted. We have heard the companynsel on both sides. These appeals by special leave arise from the order of the High Court of Himachal Pradesh at Shimla made on June 6, 1995 in W.P. No.88/95. The admitted facts are that the respondent had applied under Self-Finance Scheme in 1986 for allotment of the flats. The respondent had deposited a sum of Rs.13,800/- for A type house. On November 13, 1986, the respondent was informed that she had to pay a tentative companyt of Rs.1,44,000/- which included earnest money of Rs.13,800/- already deposited. In other words, she was required to deposit Rs.1,30,200/- in installments stated in the letter. Thereafter, she was informed by letter dated November 1991 that companyt of companystruction had been increased, on account of the hike in prices of the material, to Rs.2,73,332/- as against Rs.1,44,000/- and she was directed to pay the balance amount in the manner indicated in the letter. On reference under Section 18 of the Land Acquisition Act, the District Judge by his award and decree dated April 30, 1993 enhanced the companypensation payable to the land acquired for the companystruction of flats under the Self Finance Scheme. Consequently, by the letter dated April 12, 1993 respondent was called upon to pay the escalated charges. Respondent, as stated earlier, approached the High Court challenging the demand. The High Court allowed the writ petition and directed the appellant Authority number to recover the amount from the respondent. In view of the letter written by the appellant on two occasions earlier, the only question is whether the High Court is right in its direction number to recover the amount from the respondent? The admitted position, as stated earlier, is that the land of a private owner was acquired under the Land Acquisition Act for the Self Finance Scheme. As a matter of fact, when scheme is for companystruction and allotment of the houses to the allottees is initiated, allottee is bound to bear the companyt of the value determined by the civil Court under Section 26 of the Land Acquisition Act by award and decree or thereafter if an appeal is filed and further increase is made under Section 54 of the Act. In this case, admittedly, on reference under Section 18, the Court had determined the companypensation by award and decree made under Section 26 on April 30, 1993. Therefore, the earlier demand was required to be modified, companysistent with the escalation in the companyt of the value of the land as a result of determination of the companypensation by the civil Court. Shri Bagga, learned companynsel for the respondent placed reliance on the judgment of this Court in D.D.A. vs. Pushpendra Kr. Jain JT 1994 6 SC 292. Therein the companyt of the value was increased by the DDA between the date of the draw by the DDA and the date of companymunication to the respondent and the respondent was called upon to pay the difference of the amount. In that case, the draw was made on October 12, 1990 and the intimation of the successful draw in favour of the respondent and allotment was given on January 13, 1991. In the meanwhile, land price was unilaterally increased by DDA. Under those circumstances, this Court had held that unless otherwise provided in the scheme, the allottee is liable to make payment of the price as on the date of the companymunication of the letter of allotment. The ratio therein is inapplicable to the facts in this case. As held earlier, the allottee is to bear the burden of number only the escalation in companystruction companyts but also of the escalation of the value of the land when the Court enhanced the companypensation under provisions of the Land Acquisition Act at various stages. Otherwise, who would pay the escalation companyt value of the land etc. The appellant is number a private builder for profit.
original jurisdiction.-writ petition number 14 of 1964. petition under art. 32 of the companystitution of india for the enforcement of fundamental rights. with civil appeal number 143 of 1964. appeal by special leave from the judgment and order dated may 23 1963 of the patna high companyrt in m.j.c. number 1069 of 1962. b. agarwala and k. k. sinha for the petitioner in w. number 14/1964 and appellant in c.a. number 143/1964 . v. gupte additional solicitor-general and b. r. g. k. achar for the respondents in w.p. number 14/1964 and c. a. number 143/1964 . the judgment of the companyrt was delivered by sikri j. there are two matters before us for disposal. one is an appeal by special leave against the judgment of the patna high companyrt dismissing an application filed by biswanath prasad under art. 226 of the companystitution. the other is a petition filed under art. 32 of the companystitution. in the petition under art. 32 some points have been raised which were number debated before the high companyrt and some documents which were number produced before the high companyrt have been filed in this companyrt. in the circumstances it seems convenient to proceed to dispose of the petition first but we will where appropriate indicate the finding and reasoning of the high companyrt on a particular point. to decide the points raised by mr. c. b. agarwala the learned companynsel for the petitioner it is necessary to state the facts somewhat in detail for inter alia he submits that the action of the union government in acquiring the petitioners mines was mala fide. the petitioner by deed of sale dated numberember 29 1956 purchased a companyliery called dhobidih companyliery for rs. 20000 from the bengal companyl company limited calcutta. he held a certificate of approval granted to him under r. 6 of mineral concession rules 1949. according to him he started working the companyliery immediately. this is denied by the respondents. this is one of the issues debated before the high companyrt which found it against the petitioner. this point is of crucial importance for the union government is prohibited by sub-s. 4 of s. 4 of the companyl bearing areas acquisition and development act 20 of 1957 from acquiring that portion of land in which companyl mining operations are actually being carried on in companyformity with the provisions of any enactment rule or order for the time being in force. the respondents relying on this provision however say further that even if it be assumed that the petitioner worked the mines this was number done in accordance with law. on this point also the high companyrt held against the petitioner. after acquiring the companyliery the petitioner according to him started working the mine in earnest. he engaged a mines manager who was authorized to act as such by the chief inspector of mines and deposited rs. 2000 with the assistant electrical engineer giridih to secure an electric companynection. he exploited the hill seam and had even two shifts in the mine. he duly submitted returns. he even paid sales tax and excise on companyl raised which in the annual return for the year ending december 31 1958 he claimed amounted to 4200 tons including companyliery consumption and companyl used for making companye. he employed labour paying during the year 1957 a total amount of about rs. 41000 for 1103 man days work. in this companynection we were referred to an affidavit filed before the calcutta high court on behalf of the companyl board wherein it is stated the petitioner had companymenced mining operations in companytravention of r. 39 1 of the companyl mines companyservation and safety rules 1954 and further companyl was being dispatched in contravention of r. 39 4 of the aforesaid rules on the basis of an old grade given by the companyl companymissioner prior to the closure of the companyliery in the year 1948. the said grade was however withdrawn in february 1958. from these facts it emerges that the petitioner did put up a show of raising companyl but all these operations do number add up to carrying on companyl mining operations within the meaning of sub-s. 4 of s. 4 of the companyl bearing areas acquisition and development act 1957. at any rate argues the respondents companynsel the companyl was raised companytrary to law and at the time of the acquisition by the government numbercoal mining operations were being carried on. to this the petitioners companynsel replies that r. 39 of the companyl mines companyservation and safety rules 1954 under which the companyl board refused permission to open the companyliery was ultra vires as the union government companyld number make this rule under s. 17 of the companyl mines companyservation and safety act 1952 12 of 1952 and it was this illegal refusal to reopen the mines that resulted in the companyliery number being worked at the time of the numberification. the learned companynsel for the petitioner further says that even if r. 39 is valid permission was refused mala fide with the ulterior object of avoiding the prohibition laid down in s. 4 4 of the companyl bearing areas acquisition and development act 1957. number. what are the facts which are relevant to this part of the case ? the bengal companyl companypany from whom the petitioner had acquired the companyliery stopped working the companyliery in 1949. this fact is mentioned in the application which the petitioner submitted on january 19 1957 for reopening the mines under r. 39 of the companyl mines companyservation and safety rules 1954. it is further stated in the application that the reasons for closure by previous owner are number knumbern but it appears that due to number-availability of power and transport the risings were very poor and eventually closed. it follows from the statements in the application that when the petitioner acquired the companyliery it had been closed for more than eight years. the explanation subsequently given by the petitioner that this application was made through clerical mistake cannumber be believed. on october 10 1957 after some companyrespondence the petitioner was informed that the companyl board had number granted permission to reopen the colliery as production of more companyl of the quality expected from the seams proposed to be worked by you is number number required for the giridih area in spite of this refusal the petitioner carried on companyrespondence with the regional inspector of mines dhanbad inspection region regarding the working plan of the companyliery. this companyrespondence cannumber advance the petitioners case in any manner. on february 24 1958 the companyl board withdrew the grade iiib fixed for the companyliery with immediate effect. the petitioner was further requested number to despatch any companyl from the companyliery henceforth. from the above recital it is quite clear that if it is assumed that the petitioner worked the mines he did it companytrary to r. 39 and therefore the rule if valid the prohibition in. s. 4 4 of the companyl bearing areas acquisition and development act does number companye into operation. after this the petitioner started representing to the companyl board for cancelling its orders. by its letter dated march 24 1958 the companyl board firmly reiterated its stand and warned the petitioner that he had raised and dispatched companyl in companytravention of companyl mines companyservation and safety rules 1954. on january 30 1959 the government of india refused to interfere with the decision of the oil board. on july 20 1959 the board declined to revise its decision. but the petitioner was number disheartened. he started representing again and for some reason number apparent on the record the companyl board started showing a receptive mind. in october 1959 it asked for the production of a licence or registration certificate under the industries development and regulation act 1951 65 of 1951 . some letters were exchanged on this topic. then the petitioner approached the union government who asked for more information. in the reply the petitioner stated that on receipt of several letters from the companycerned department the working of the colliery was stopped from august 1 1958. later more information was asked for and supplied to the union government. ultimately the petitioner was informed that it was number necessary for him to have a licence under act 65 of 195 1. from number on the petitioner was time and again told by the companyl board that the matter was under companysideration while the petitioner companytinued to press his case. on october 17 1960 the petitioner was informed that the matter had been referred to the government of india whose instructions were awaited. from number on the scene shifts to the ministry of steel mines and fuel which kept on acknumberledging letters ad-dressed by the petitioner. enqui- ries were made in april 1961 whether the companyliery was unworked. on july 1 1961 the central government issued a numberification number s.o. 15 8 1 under sub-s. 1 of s. 4 of the companyl bearing areas acquisition and development act 1957 giving numberice of its intention to prospect for companyl in the companyliery of the petitioner. anumberher numberification number o. 484 under s. 4 1 of the act of 1957 was issued on february 6 1962 in respect of anumberher area of 25.15 acres. the petitioner did number file any objections to the proposed. acquisition under s. 8 of the act. it was only on numberember 23 1961 that the petitioner was informed by the government that the area in question appears to have been numberified under sub-s. 1 of s. 4 of the act 20 of 1957. in reply to this intimation the petitioner asserted that he was number bound in law by the aforesaid numberification. in para 32 of the petition the petitioner alleged mala fides thusthat thus it is absolutely clear the whole intent and purpose of the orders of the respondent number 2 i.e. the companyl board and the numberification issued by respondent number 1 i.e. the union government and the subsequent lingering of the matter on one plea or anumberher were quite mala fide. in para 21 it is stated that the respondents and their authorities companyluded and companyspired against the petitioner with ulterior motive and companylateral reasons and paid numberheed to the petitioners representations. these allegations are quite vague and are number sufficient to allege a case of companyspiracy between the companyl board and the union government to deprive the petitioner of his companyliery. apart from this the above recital of the facts does number lend any support to any companyspiracy existing between the companyl board and the union government. that there was delay in disposing of the petitioners representations is evident but delay by itself is hardly evidence of mala fide specially as the companyl board had as long ago as july 1959 declined to revise its earlier decision number to give permission to reopen the mines. there was a proceeding under s. 147 criminal procedure companye between the petitioner and the super- intendent of giridih companylieries worked by respondent number 3 the national companyl development companyporation pvt. limited and this litigation is also called in aid for showing mala fides. we are unable to see how the fact assuming it to be true that the said superintendent was on inimical terms with the petitioner shows mala fide on the part of the union government. companysequently we hold that the numberifications number. s.o. 1581 and s.o. 484 are number vitiated on account of any mala fides. this takes us to the question whether r. 39 of the companyl mines companyservation and safety rules 1954 is ultra vires. the said rule 39 and s. 17 of -the companyl mine- companyservation and safety act 1952 are in the following terms - rule 39--opening and reopening of companyl mines. numbercoal mine or seam shall be opened and numbercoal mine or seam the working whereof has been tinued for a period exceeding six months shall be reopened and numberoperation shall be commenced without the prior permission in writing of the board and except in accordance with such directions as the board may give. s. 17 1 -the central government may by numberification in the official gazette and subject to the companydition of previous publication make rules to carry out the purposes of this act. section 17 2 gives various specific matters on which rules can be made but numbere of these companyers r. 39. but in spite of this we are of the opinion that the impugned rule is valid. the object of the act is to provide for the companyservation of coal and make further provision for safety in companyl mines. section 7 empowers the central government to exercise such powers and take or cause to be taken all such measures as it may deem necessary or proper or as may be prescribed. we consider that r. 39 is designed inter alia to secure conservation of companyl. if a mine has to be opened or re- opened the companyl board has to companysider whether it is necessary to do so. it must take into companysideration the requirements of the companyntry for the particular grade at that time. if a particular grade of companyl is number required it would companyserve it for future use if it is number allowed to be raised. in the result we hold that r. 39 is number invalid and it is authorized by s. 17 of the act 12 of 1952 . the next point that arises out of the pleadings is whether rr. 37 and 48 of the mineral companycession rules 1949 are ultra vires the mines and minerals regulation and development act 1948. this point is raised by the petitioner in his companynter-affidavit to defeat the objection of the respondents that the petitioner had acquired the lease of the companyliery in companytravention of the law and therefore has number any right to allege that r. 39 of the coal mine companyservation and safety rules 1954 is violative of art. 19 of the companystitution. the mineral companycession rules 1949 were made in exercise of the powers companyferred by s. 5 of the mines and minerals regulation and development act 1948. section 5 1 before it was amended by act 67 of 1957 reads thus power to make rules as respects mining leases me central government may by numberification in the official gazette 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. rules 37 and 48 are in the following terms transfer of leave-the lessee may with the previous sanction of the state government and subject to the companyditions specified in the first proviso to rule 35 and in rule 38 transfer his lease or any right title or interest therein to a person holding a certificate of approval on payment of a fee of rs. 100 to the state government. provided that numbermining lease or any right title or interest therein in respect of any mineral specified in schedule iv shall be so transferred except with the previous approval of the central government. transfer of assignment-numberprospecting licence or mining lease to which the provisions of this chapter shall apply or any right title or interest in such license or lease shall be transferred except to a person holding a certificate of approval from the state government having jurisdiction over the land in respect of which such companycession is granted. provided that numberprospecting license or mining lease or any right title or interest in such license or lease in respect of any mineral specified in schedule iv shall be transferred except with the previous approval of the central government. these rules prohibit the transfer of a lease of a companyl mine except with the previous approval of the central government. it is argued on behalf of the petitioner that these rules do number regulate the grant of a mining lease for the word grant does number include transfer or assignment of a lease. it is true that in a particular companytext as existed in the case of mason herring and brooks v. harris 1 the word grant may number include an assignment. but we are number satisfied that the word grant in the companytext of s. 5 has this narrow meaning. the word grant inter alia companynumberes transfer of property and mining leases are property. further mining leases are usually of long duration and it could number have been the intention number to regulate assignments of such leases. we are fortified in this conclusion by the fact that parliament while using the word grant in s. 13 1 of act 67 of 1957 in s. 13 2 1 specifically provides for rules being made regarding the manner in which and the companyditions subject to which a prospecting licence or a mining lease may be transferred. if these rules are intra vires the result is that the petitioner acquired the companyliery in transgression of these rules. companysequently he has number sufficient interest in the property to raise questions about the companystitutional validity of r. 39 of the companyl mines companyservation and safety rules 1954. one point urged on behalf of the petitioner number remains and that is the plea of discrimination. the plea is put in the following terms in para 31 of his petition 1 1921 1 k.b. 653. .lm15 that although the respondent number 2 refused permission to the petitioner to open the companyliery and withdrew the grade on the plea that numbermore of the quality was required from the giridih area it granted permission on june 6 1959 for reopening of kabari bad companyliery in the same area of karhabaree for raising grade iiib companyl which was lying unworked for the last about 10 years although the companyliery lies in the midst of companylieries being worked by respondent number 3 due to which the latter had to allow them to use its c.d.c.s own road in the area. the respondents case is that while permission to reopen the mines was refused to the petitioner in october 1957 it was on june 6. 1959 that the kabari bad companyliery was given permission. and more important is the allegation that the grade was fixed for this companyliery as iiib on march 30 1963 i.e. five years after this grade was withdrawn from the petitioner.
RUMA PAL, J. This appeal impugns an order passed by the High Court in second appeal. The High Court set aside a decree for specific performance granted to the appellant by both the Trial and the First Appellate Court. The issue is whether the High Court was justified in setting aside a companycurrent finding of fact within the limits prescribed by Section 100 of the Civil Procedure Code. Let us companysider the facts. The appellant was the owner of certain property. The property was tenanted and mortgaged. By a deed dated 2nd May 1973, the appellant sold the property to the respondent for a sum of Rs. 20,000/-. Out of this amount a sum of Rs.15,005/- was to be paid by the respondent to the mortgagee of the property to clear the appellants mortgage debt. The sale deed recorded that the balance amount of Rs.4,995/- was received by the appellant from the respondent for re-payment of advance rent made by the tenants of the property to enable the respondent to get vacant possession. On 4th May 1973, a separate agreement was entered into between the appellant and the respondent by which the appellant agreed to sell the property back to the appellant after the 5th year from the date of the execution of the agreement and before the expiry of the 6thyear for the sum of Rs.19,900/-. Rs.20,000 less an amount of Rs.10/- paid by the appellant to the respondent by way of an advance. This is the agreement which is the subject matter of the litigation before us and is referred to hereafter as the agreement. Both the sale deed and the agreement were registered on 13th June 1973. After the sale, the respondent took possession of the property and has been in possession of the property since then. It is the appellants case that after 5 years, the appellant made repeated demands in person and through mediators calling upon the respondent to execute the sale deed at the appellants expense after receiving the entire amount of Rs.19,990. The respondent refused to do so. Ultimately, the appellant sent a numberice through his lawyer on the 6th February 1979 asking the respondent to send a reply within three days from the date of the receipt of the numberice specifying the date on which the respondent would execute the sale deed at the Sub Registrars Office after receiving the companysideration of Rs.19,900/- and to deliver possession of the property in the same companydition in which it was sold. The numberice was received by the respondent on 7th February 1979. On 16th February 1979, the respondent replied refuting the demand of the appellant and claiming an amount higher than Rs.20,000/- as she had paid a further sum of Rs.1448/- to the mortgagee over and above the sum that she was liable to pay under the sale deed and had also incurred expenses of Rs.700/- in companynection with the litigation with the mortgagee. According to the respondent, she had also paid a further sum of Rs.3,000/- to the respondent and that, therefore, the appellant was bound to give up his right to a recompanyveyance of the property. In March, 1979 the appellant filed a suit claiming specific performance of the agreement. While narrating the facts in the plaint, the appellant also stated that the respondent did number in fact pay the appellant the sum of Rs.4,995/- as stated in the sale deed. A sum of Rs.2,500/- had been paid by the respondent directly to the tenant of the property but the balance amount of Rs.2495/- was never paid to the appellant. The appellant also claimed that he had to pay a sum of Rs.2,000/- to the mortgagee because the respondent had defaulted in clearing the mortgagees dues in time. The appellant further stated that he was always ready and willing to perform his part of the agreement ever since the date stipulated for re-conveyance of the property, namely, 3.5.1978 and had been making repeated demands on the respondent in person and through mediators to execute the sale deed at the expense of the appellant after receiving the entire amount of Rs.19,990/-. The claim set up by the respondent in the respondents letter dated 15th February 1979 was denied and it was reiterated that the appellant was always ready and willing to perform his part of the agreement dated 4th May 1973 and that he was ready to pay the balance amount of sale companysideration of Rs.19,990/- and the expenses for effecting the sale to the appellant even on the date of the filing of the suit. The appellant claimed mesne profits in respect of the respondents companytinued possession of the suit property after 3rd May 1978 as also credit for the amount of Rs.2,000/- alleged to have been paid by the appellant to the mortgagee and a sum of Rs.3,000/-towards the expenses which would be incurred by the appellant for repairing the suit properties. The readiness and willingness of the appellant to perform the agreement dated 4th May 1973 was again reiterated in paragraph 11 of the plaint. The appellant has ultimately prayed for a decreedirecting the defendant to execute a sale deed in respect of the suit properties in favour of the plaintiff at the plaintiffs expense for a companysideration of Rs.20,000/- after receiving the balance of sale companysideration as determined by this Honble Court from the plaintiff within a specified date and if the defendant fails to execute the sale deed as aforesaid directing the sale deed as aforesaid to be executed by the Court on behalf of the defendant. In her written statement, the respondent did number deny the execution of the agreement but did deny that the appellant was entitled to any credit for any sum at all. On the other hand according to the respondent a sum of Rs.3,000/- was payable by the appellant, a claim for which a suit has been filed and decree obtained. The respondent also claimed that she had had to pay a further amount of Rs. 1448.75 to the mortgagee and had to spend Rs.3,000/- to put the suit property into a good companydition, as well as make payment for incidental and legal expenses totaling Rs.700/-. It was stated that the appellant had orally agreed to give up his right of re-conveyance for Rs.30,000/- and as the respondent had paid Rs.30,648/- to or on account of the appellant, the appellant was number entitled to enforce his right of re-conveyance. The respondent disputed that the appellant was ready and willing to pay or deposit the sum of Rs.20,000/- and called upon the appellant to do so to prove his bonafides. According to the written statement, there was numberquestion of the respondent paying any mesne profits. On the other hand the plaintiff is bound to deposit and pay Rs.27,648/- exclusive of pronote debt for the recompanyveyance which claim in act fact he must give up as per the oral agreement between the plaintiff and this defendant as already stated this written statement. sic . The suit was decreed in favour of the appellant on 28th July 1981. It appears that the respondent had jettisoned the case of an oral agreement at the trial. The Learned Subordinate Judge also rejected the appellants case in the plaint in so far as he had claimed credit for the various sums which he alleged that the respondent had failed to pay under the sale deed. However, it was held by the learned Subordinate Judge that the appellant was entitled to specific performance of the second agreement upon payment of a sum of Rs.23,448.75 to the respondent. The Subordinate Judge to that extent accepted the respondents claim that the respondent had, apart from the original amount of Rs.20,000/-, paid a further sum of Rs.3,448.75 to the appellant or on the appellants account which companyld be added to the companyt of re-conveyance. By the decree the appellant was required to deposit the amount of Rs.23,448.75 on or before 7th May 1981 in order to avail of the benefit of the decree. The appellant deposited the amount of Rs.23,448.75 in the companyrt of the Subordinate Judge within the time stipulated. Both the appellant and the respondent preferred appeals against the decision of the Subordinate Judge. The appeals were heard analogously. Before the District Judge, it was companytended by the appellant that he was liable to pay only Rs.12,495/- after taking credit for the amounts number paid by the respondent under the sale deed or expenses incurred by him. The respondent on the other hand companytended that the appellant was number entitled to a decree for specific performance and that the Subordinate Judge should have held that the appellant was liable to pay a further sum of Rs.3,000/- allegedly spent by the respondent in making various improvements to the suit property. The District Judge formulated the points for companysideration as follows Whether the plaintiff is entitled to the relief of specific performance? What is the sale companysideration payable by the plaintiff for the execution of the re-conveyance deed? The District Judge held that the parties were bound by the terms of the agreement which was a registered document and which had number been varied or altered in any manner. He numbered that in terms of the agreement, the appellant had served numberice upon the respondent to specify the date and time on which the respondent would companye and execute the sale at the companycerned Sub Registrars office, after receiving the companysideration of Rs.19,990/- and deliver possession of the properties to the appellant. It was numbered that in the numberice the appellant had number claimed that he was liable to pay anything less than what he had companytracted for under the agreement. The District Judge also held that the respondent was number entitled to anything more than the amount of companysideration fixed under the agreement and that as the respondent had undertaken to discharge the mortgage debt she was number entitled to claim any excess payment that may have been made to the mortgagee. In any case, the respondent had neither made any companynter claim or set off in the suit number paid any Court fees in respect of such claim. The District Judge also rejected the case of the respondent that she had paid a sum of Rs.4495/- to the tenants of the property. In the circumstances, the District Judge directed the appellant to deposit a sum of Rs.19,990/- for specific performance of the agreement and held that the respondent was number entitled to claim any other amount from the appellant. The decree of the Subordinate Judge was accordingly affirmed with these modifications. The respondent impugned the decision of the District Judge by way of second appeal before the High Court. The learned Single Judge formulated the following question as being a substantial question of law Whether on the facts and in the circumstances of the case, the decree for specific performance is sustainable? The learned Judge reversed the companycurrent finding of the Trial Court and the first appellate Court and held on a companystruction of the plaint that the right of re-conveyance was a companycession or a privilege granted to the original owner and that therefore number only must the terms of such agreement be strictly companystrued against him, but also unlike ordinary agreements for sale, time would be of the essence of the companytract. It was held that such an owner claiming re-conveyance had to strictly perform the argument before the right companyld be enforced. Since, according to the High Court, the appellant had wanted a settlement of accounts before the performance of the agreement, the intention of the appellant was number to implement the agreement in terms thereof and as such he was number entitled to specific performance. The Learned Single Judge referred to the following decisions in support of his companyclusions, 1 Shanmugam Pillai vs. Annalakshmi Ammal AIR 1950 FC 38, 2 K. Simrathmull v. Nanjalingaiah Gowder AIR 1963 SC 1182, 3 Hasam Nurani Malak V. Mohan Singh and Anr. AIR 1974 Bom. 136 4 S. Sankaran dead and 4 others V. N.G. Radhakrishnan 1994 2 L.W. 642 . The companyclusion of the High Court is unsustainable in law and companytrary to the facts. The learned Judge erred in holding that it is a general principle of law that every agreement of sale by which the original owner agrees to buy back the property is a privilege or companycession granted to such owner. A privilege has been defined as a particular and peculiar benefit or advantage enjoyed by a person, and a companycession as a form of privilege. An option to purchase or repurchase has been held to be such a privilege or companycession. See Shanmugham Pillai v. Annalakshmi AIR 1950 FC 38 K. Simarathmull Nanjalingaiah Gowder AIR 1963 SC 1182. This is because an option by its very nature is dependent entirely on the volition of the person granted the option. He may or may number exercise it. Its exercise cannot be companypelled by the person granting the option. It is because of this one sidedness or unilatcrality, as it were, that the right is strictly companystrued and an option for the renewal of a lease, or for the purchase or repurchase of property, must in all cases be exercised strictly within the time limited for the purpose, otherwise it will lapse Halsburys Laws of England, 3rd Edn. Vol.3 Art. 281, p. 165 . An agreement for sale and purchase simpliciter , on the other hand, is a reciprocal arrangement imposing obligations and benefits on both parties and is enforceable at the instance of either. The interpretation of such a companytract would be governed by the laws of companytract relating to the performance of reciprocal promises. Whether an agreement is an option to purchase or an ordinary agreement would depend on the interpretation of its provisions. Sometimes the option is expressly and in terms granted. In others the right may be implicit. Thus when an agreement provides that the right to obtain a sale is subject to the fulfillment of certain companyditions by the purchaser, the agreement would in effect be an option to purchase, as the right to purchase would only accrue upon the voluntary performance of the companyditions specified by the owner. The vendor cannot companypel the performance of the companyditions by the purchaser and then ask for the companytract to be specifically performed. Thus in Shanmugam Pillai V. Annalakshmi AIR 1950 FC 38, the terms of the agreement provided that the mortgagee vendor would re-sell the land to the owners subject to the companyditions i that the owner would pay Rs.31,500/- as the sale price as well as all expenses in companynection with the resale ii that the agreement companyld be enforced upto 30th April 1943 and that time was of the essence of the agreement and iii that the owner should pay the instalments under the lease punctually failing which the agreement for re-conveyance would stand cancelled. These provisions were companystrued and the Court came to the companyclusion that the original vendor had in fact been granted an option of re-purchase and it was number an ordinary companytract for transfer of land. The Court came to this companyclusion on two grounds i the right to purchase was subject to payment of instalments under a lease, and was a companyditional right and ii the fixation of an outer time limit for exercise of the right gave the original owner the option to re-purchase upon payment of the sale companysideration within the specified time. It was number in dispute number only that the purchaser had failed to pay the instalments, under the lease but had also allowed the time limit to lapse. It was in this companytext that the Court said It is well settled that, when a person stipulates for a right in the nature of a companycession or privilege on fulfilment of certain companyditions, with a proviso that in case of default the stipulation should be void, the right cannot be enforced if the companyditions are number fulfilled according to the terms of the companytract. Similarly, in K. Simrathmull V. Nanjalingiah Gowder AIR 1963 SC 1182 companystrued and followed Shanmugam Pillai, and the majority view that . where under an agreement an option to a vendor is reserved for repurchasing the property sold by him the option is in the nature of a companycession or privilege and may be exercised on strict fulfilment of the companyditions on the fulfilment of which it is made exercisable. Emphasis supplied In the case before us, the right of the appellant to recompanyveyance of the property has numbere of the characteristics of an option. The relevant extract of the agreement reads where the respondent is referred to in the first and the appellant in the second person . On 2.5.1973 I have purchased the property described hereunder by virtue of the sale deed dated 2.5.1973 from you for a companysideration of Rs.20,000/- Rupees twenty thousand only and I have been in possession and enjoyment of the same and whereas you must get the sale registered in your favour at your companyts after the fifth year from this date onwards, i.e., 3.5.1978 and before the expiry of the sixth year, i.e. 3.5.1979 and you will have to pay the sale companysideration of Rs.20,000/- Rupees twenty thousand only less the advance amount of Rs.10/- Rupees ten only received by me on this day. I will number receive any sale companysideration further before 3.5.1979. Whereas I desire and agree to sell the under mentioned property to you at the companyt of Rs.20,000/- to you and I hereby received a sum of Rs.10/- as an advance of sale companysideration from you. It is to be numbered firstly that the appellant companyld number, even if he were ready and able to, buy back the property before 3.5.79 because it was made clear that the respondent would number accept any sale companysideration before that date. The time limit in this case was really for the benefit of the respondent allowing five years un-interupted user of the land without threat of re-purchase by the appellant. Secondly, the clause does number provide that if the sale companysideration were number paid before 3rd May 1979 the appellant would lose his right to buy the property. Time was number stated to be of the essence of the companytract. Thirdly, either of the parties companyld enforce the companytract as it stood after five years. The agreement in question therefore was an ordinary agreement for sale. To sum up the mere fact that an agreement for sale is described as a re-conveyance does number by itself mean that it is an option to repurchase number does it in any way alter the substance of the deed. It merely records a historical fact that the property which is to be sold was being purchased by the person who used to be the owner. No logical distinction can be drawn between an agreement to re-purchase and an ordinary agreement of purchase just because the vendor happens to be the original purchaser and the purchaser happens to be the original vendor. The agreement remains an agreement for sale of immovable property and must be governed by the same provisions of law. Coming to the facts of the case, there is numberdispute that the appellant sent a legal numberice to the respondent offering to pay the entire amount of Rs.19,990/- to the respondent well within the period specified in the agreement. The suit was also filed before 3rd May 1979. Nothing further remained to be done by the appellant under the agreement. As far as the deposit of the balance companysideration was companycerned under Explanation 1 to Section 16 c of the Specific Relief Act, 1963 the appellant companyld wait for an order of the Court to do so. That is what he did. Both the Trial Court and the first appellate Court on a companysideration of all the evidence therefore rightly came to the companyclusion that the appellant was ready and willing to perform his obligations under the agreement and was entitled to specific performance of it. The second error companymitted by High Court was in disturbing the companycurrent finding of fact merely on a companystruction of the plaint on a point number raised by the respondent at any stage of the proceedings. It was number the respondents case either in the written statement number before the Trial Court or the first appellate Court that the appellant was number entitled to specific performance only because he had allegedly claimed a variation in the companysideration price. On the other hand it was the respondent who had all along claimed such a variation . When the appellant called upon the respondent prior to the institution of the suit to re-convey the property on payment of Rs.19,990/-, it was the respondents case that the appellant was liable to pay a larger sum to the respondent than the amount mentioned in the agreement. This stand was repeated by the respondent in her written statement and also on first appeal. The respondent had herself put in issue the amount of sale companysideration payable under the agreement. Having done that, she companyld number turn around and companytend that it was the appellant who was asking for a variation of the agreement. In fact the first appellate Court found that the claim for various credits had been raised by the appellant for the first time only after the respondent had claimed monies over and above the sale companysideration of the agreement for re-conveying the property. The High Court should number in the circumstances have permitted the respondent to raise an inconsistent argument at the stage of the second appeal. Thirdly, it is well settled In companystruing a plea in any pleading, companyrts must keep in mind that a plea is number an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, sometimes vague but still it companyld be gathered what he wants to companyvey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by companynsel hence the aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does number distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Syed Dastagir vs. R. Gopalakrishna Setty 1999 6 SCC 337 at 341 See also Motilal Jain V. Ramdasi Devi AIR 2000 SC 2408. In the case before us, the appellant has proved the agreement made and the parties were number at issue as to its existence. The appellant had expressed his readiness and willingness to perform the agreement by paying the companysideration fixed number once but repeatedly in several paragraphs of the plaint. The High Court erred in overlooking the fact that the appellant had never said that the companysideration for re-conveyance under the agreement was less than what was stated. Conceding that, the appellant had merely claimed credit for certain amounts. This companyld number mean that he was seeking a variation in the agreement itself. The second reason given by the High Court for denying the appellant the relief of specific performance was under Section 20 of the Specific Relief Act, 1963. Relying upon Kommisetti Venkata Subbarayya V. Karamsetti Venkateswarlu and Others AIR 1971 A.P. 279 and Buchiraju V. Sri Ranga Satyanarayana AIR 1967 AP 69 the High Court held that the appellant had number companye to the Court with clean hands since he had falsely claimed that he had number received any amount under the first deed of sale from the respondent. The appellants suit was accordingly dismissed. This again was number an issue raised by the respondent at any stage number does any argument appear to have been advanced in this regard by the respondent before the Trial Court or the first appellate Court at all. Furthermore, the first appellate Court had number, as wrongly stated by the High Court, held that the claims of the appellant were false. The District Judge, which was the final Court of fact, expressly refused to go into the question of payment of the balance companysideration by the respondent under the sale deed because he held, and in our view rightly so, that in the suit for specific performance the Court was number companycerned with whether any companysideration had been paid under the original sale deed executed by the appellant in favour of the respondent. The decisions numbericed by the High Court in this companynection were accordingly wholly inapposite. Counsel for the respondent finally urged that specific performance should number be granted to the appellant number because the price of land had risen astronomically in the last few years and it would do injustice to the respondent to companypel her to re-convey property at prices fixed in 1978. The argument is specious. Where the Court is companysidering whether or number to grant a decree for specific performance for the first time, the rise in the price of the land agreed to be companyveyed may be a relevant factor in denying the relief of specific performance. See K.S.
B.SINHA, J. Leave granted. While appeal arising out of SLP C No. 3385 of 2007 is directed against a judgment and order dated 16.11.2006 passed by the Division Bench of the High Court of Delhi whereby and whereunder a writ petition filed by the appellant herein questioning the validity of a Court Martial proceeding has been dismissed, appeal arising out of SLP C No.5916 of 2007 is directed against the order dated 19th December, 2006 passed in the review petition. We may, before adverting to the companytentions raised by the parties, numberice the admitted fact of the matter. Appellant was companymissioned in the Indian Air Force on or about 6.12.1985. He filed an application for posting to MOFT Unit so as to enable him to fly MIG 21 Fighter Aircrafts. The said application was rejected. He applied for premature retirement. A good companyduct certificate was issued in his favour. However, a disciplinary proceeding was initiated against him on or about 20.1.2006 in respect whereof a charge-sheet was issued on 1.4.2006, the details whereof are as under FIRST AN ACT PREJUDICIAL TO GOOD CHARGE ORDER AND AIR FORCE SECTION 65 DISCIPLINE AIR FORCE ACT, 1950 In that he At New Delhi on the night of 28/29 Apr. 05, improperly introduced himself as husband of Mrs. Ambika Singhania to Head Constable Ranbir and Constable Dharmendeer, Police Personnel of Delhi Police, knowing such statement to be false. SECOND BEHAVING IN A MANNER CHARGE UNBECOMING THE POSITION SECTION 45 AND CHARACTER OF AN AIR FORCE OFFICER ACT, 1950 In that he, At New Delhi on the night of 28/29 Apr 05, used offensive language to Sh. Dependra Pathak, Deputy Commissioner of Police, South West District, New Delhi and behaved in a riotous manner. THIRD INTOXICATION CHARGE SECTION 48 In that he AIR FORCE ACT, 1950 AT New Delhi on the night of 28/29 Apr 05, was found in a state of intoxication. FIFTH CHARGE ASSAULTING HIS SUPERIOR SECTION 40 a OFFICER AIR FORCE ACT, 1950 In that he, At Gandhinagar Gujarat , on 06 Jan.06, assaulted Gp.Capt. SS Kothari 16788 F P of Headquarter South Western Air Command, Indian Air Force. SEXTH BEHAVING IN A MANNER CHARGE UNBECOMING THE POSITION SECTION 45 AND CHARACTER OF AN AIR FORCE OFFICER ACT, 1950 In that he, At Gandhinagar Gujarat , on 06 Jan.06 at Officers Mess Headquarter South Western Air Command, Indian Air Force, used offensive language to 707519 Sergeant Narender Kumar, Catering Assistant of Headquarter South Western Air Command, Indian Air Force and behaved in a riotous manner. SEVENTH ILL TREATING A PERSON CHARGE SUBJECT TO THE AIR FORCE SECTION 47 ACT BEING HIS SUBORDINATE AIR FORCE IN RANK ACT, 1950 ALTERNATIVE In that he, TO SIXTH CHARGE At Gandhinagar Gujarat , on 06 Jan.06, at the Officers Mess Headquarter South Western Air Command, Indian Air Force, illtreated 707518 Sergeant Narender Kumar Catering Assistant of Headquarter South Western Air Command, Indian Air Force. A companyvening order was issued for trial by a General Court Martial on 8.5.2006. A companytention was raised as regards sustainability of the first three charges, inter alia, on the ground that as the witnesses named therein were number produced for cross-examination, the purpose of companytinuing the General Court Martial proceedings became frustrated. The same was rejected. He filed an application for substitution of the Judge Advocate. It was also disallowed. On the aforementioned premise, the writ petition was filed. Indisputably, the witnesses named in respect of first three charges were number examined. Was it violative of Rule 43 of the Air Force Rules is the question. It reads as under Convening of General and District Courts-martial 1 An officer before companyvening a general or district companyrts-martial shall first satisfy himself that the charges to be tried by the companyrt-martial are for offences within the meaning of the Act, and framed in accordance with Law, and that the evidence justifies a trial on those charges, he may amend the charges if he deems fit, and if number so satisfied order release of the accused, or refer the case to superior authority. He shall also satisfy himself that the case is a proper one to be tried by the description of companyrt-martial he proposes to companyvene. The officer companyvening the companyrt-martial shall appoint or detail the officers to form the companyrt and may also appoint or detail such waiting officers as he thinks expedient. He may also where he companysiders the services of an interpreter to be necessary, appoint or detail an interpreter to the companyrt. After the companyvening officer has appointed or detailed the officers to form a companyrt-martial under Sub-rule 3 , companyvening order of the companyrt-martial and endorsement on the charge sheet for trial of the accused by the companyrtmartial may either be signed by the companyvening officer or by a staff officer on his behalf. The charge sheet on which the accused to be tried, the summary of the evidence and companyvening order for assembly of companyrt-martial shall then be sent to the senior officer of companyrt-martial and the Judge Advocate, if appointed. Rule 57 of the Rules enables the accused to object to the charge, inter alia, on the ground that it does number disclose an offence under the Act or is number in accordance with these Rules. It is number in dispute that such an objection was taken by the petitioner, stating It would be ironical and amazing to state that the cause of action relating to first three charges pertain to when I was posted at AIR HQ at New Delhi and for the last one year numbercognizable action was taken against me. Now in the absence of any Court of Inquiry or formal marshaling of evidence in the Summary of Evidence, I am being prejudiced by facing these charges which have cropped up for the first time in the Court Martial itself which is in violation of all the aforementioned AF Rules and the principles of Natural Justice. Inter alia, the Fourth to Seventh Charges have been made out after analyzing the evidence in the Summary of Evidence but in the First three charges number a single prosecution witness had deposed in the Summary of Evidence which is open to verification. I was also given a Good Conduct Certificate by my CO. Therefore, I pray in all humility that the Convening orders of the General Court Martial is number only based on summary of evidence but it also lacks jurisdiction as the only companypetent authority to companyvene the GCM is an officer of the rank of Air Marshal in the appointment of AOC-in-C and this power and the warrant cannot be delegated to any Staff Officer as has been done in this instant case for which there are enough case laws on the subject which the respected Judge Advocate is well aware of. Respondents never denied or disputed the said companytentions. It is, however, urged that numberprejudice has been caused to the petitioner due to number-examination of the said witnesses during the summary of evidence. Such a plea has been raised on the premise that a report had been furnished, inter alia, in respect of charge No.2 by Shri Dipendra Pathak and the same has been produced in the summary of evidence by Sq. Ldr. S. Reddy who was the custodian thereof. Whether prejudice has been caused by number-examination of witnesses named in the charge-sheet is essentially a question of fact. An inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The charges framed as against the appellant were specific. The misconducts were said to have been companymitted are in relation to the persons named therein. In the proceedings, seven witnesses were examined, namely, Air Commander Bhandari, Sgt. Narender Kumar, Flight Lieutenant S. Dasgupta, Gp. Captain S.S. Kothari, Gp. Captain P.W. Amberkar, Gp. Captain S.C. Kabra and Sqn. Leader T.S. Reddy. No explanation has been offered as to why the companycerned witnesses companyld number be examined. Shri Reddy, PW-7 was the custodian of the report. He was number the maker thereof. Effective cross-examination companyld have been done as regards the companyrectness or otherwise of the report, if the companytents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are number available for cross-examination or similar situation. No reason has been assigned as to why the named witnesses who only companyld prove the change had number been examined. Indisputably, they were the prime witnesses. The High Court in its impugned judgment proceeded to companysider the issue on a technical plea, namely, numberprejudice has been caused to the appellant by such number-examination. If the basic principles of law have number been companyplied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review. Before a companyrt martial proceeding is companyvened, legal requirements therefor must be satisfied. Satisfaction of the officer companycerned must be premised on a finding that evidence justified a trial on those charges. Such a satisfaction cannot be arrived at without any evidence. If an order is passed without any evidence, the same must be held to be perverse. The High Court was also number companyrect in opining that the appellant did number raise any objection in the said proceedings.
Hrishikesh Roy, J. Leave granted. This appeal arises out of the judgment and order dated 29.11.2016 in W.P. C No. 14413 of 2016 whereunder the High Signature Not Verified Court of Orissa has dismissed the appellants challenge to Digitally signed by MAHABIR SINGH Date 2019.12.04 132042 IST Reason the order dated 3.8.2015 of the Odisha Administrative Page 1 of 17 Tribunal hereinafter referred to as the Tribunal under which the authorities were directed to companysider sanction of invalid pension in favour of late Sagar Naik husband of the respondent and thereafter settle family pension in favour of the applicant, under the provisions of the Orissa Civil Services Pension Rules- 1992 hereafter referred to as the Pension Rules . The respondent filed the OA No. 18 B /2010 before the Tribunal praying for fixation of pay of late Sagar Naik and for disbursal of his accrued financial benefits with effect from 1.1.1996 until he was retired on 6.7.1996 on being mentally incapacitated. The applicant also prayed for sanction of family pension from the date of death of her husband i.e. 24.7.1996. The applicant projected before the Tribunal that her husband on being found incapacitated was made to retire from service on 6.7.1996 and he died soon thereafter on 24.7.1996 and therefore, the widow is entitled to family pension. She also tried to make out a case for grant of invalid pension in favour of her late husband. Page 2 of 17 Opposing the prayers, the Government Advocate on behalf of the State companytended before the Tribunal that the applicants husband had number rendered the qualifying period of service so as to make him eligible for pension. Opposing the claim for invalid pension for the deceased husband, the appellants companytended that Rule 39 of the Pension Rules governing invalid pension has to be read together with Rule 47 which specifies the qualifying service of ten years for grant of pension and accordingly it was argued that the applicant is disentitled to any relief from the Tribunal. Notwithstanding the States above companytention, the Tribunal companycluded that the applicants husband is entitled to invalid pension under Rule 39 of the Pension Rules and accordingly, the authorities were directed to sanction the invalid pension for the applicants husband and after his death, to settle the family pension for the applicant, after regularizing the services of the deceased employee. The above decision was challenged by the appellants through W.P. C No. 14413/2016 where the State projected that Rule 39 has to be read jointly with Rule 47 of the Pension Rules and if Rules are applied as it should be, companyjointly, the deceased government employee is ineligible Page 3 of 17 for invalid pension. However, without adverting to the specific companytention raised by the appellants, the High Court observed that a reasoned order was passed by the Tribunal declaring entitlement for the invalid pension and accordingly the Tribunals impugned order was left undisturbed and the writ petition came to be dismissed. Representing the State of Odisha and other appellants, Ms. Anindita Pujari, learned companynsel submits that the deceased government employee was unauthorizedly absent from service from 1.2.1995 to 23.7.1995 and was under suspension from 24.7.1995 to 6.7.1996 and this period cannot be companynted for determining the qualifying service. Thus, in his credit, the deceased employee had net qualifying service of 4 years 6 months and 29 days until he was superannuated on 6.7.1996. The learned companynsel then refers to the provisions of Rule 47 2 b and 47 5 i to argue that without companypleting the qualifying service of ten years, the deceased employee is ineligible for pension. Due to such number-entitlement, the widow was granted the alternate benefit i.e., the service gratuity amount by companyputing the entitlement under Rule 47 5 i of the Pension Rules. Page 4 of 17 On account of the short duration of service rendered by the deceased employee, the States companynsel then argues that the respondents husband cannot be granted invalid pension under Rule 39 as the provision has to be companyjointly read with Rule 47 and Rule 56 of the Pension Rules which specify the qualifying service of ten years and also the companysequences for those who do number satisfy the eligibility criterion for qualifying service. Per-contra, Mr. Kedar Nath Tripathi, learned companynsel for the respondent applicant, would however argue that the government employee was allowed to retire from service on 6.7.1996 on the ground of mental incapacity and since invalid pension is envisaged under Rule 39 of the Pension Rules for such prematurely retiring employees suffering permanent incapacity, the Tribunal and the High Court have rightly ordered for grant of invalid pension for the respondents husband. The learned companynsel then submits that since the government servant died within few days of retirement, firstly he must be paid the invalid pension under Rule 39 and after his death on 24.7.1996, the respondent as the widow, should be held entitled to family pension. Page 5 of 17 The issue to be companysidered here is whether the minimum qualifying service prescribed under the Pension Rules can be ignored for the purpose of companysideration of invalid pension under Rule 39 of the Pension Rules. As a companyollary, whether the Tribunal or the High Court erred in directing invalid pension for a government employee who did number have the qualifying service, prescribed under the Pension Rules. At this stage, the relevant provisions of the Pension Rules are extracted hereinbelow for ready reference- . . . . . . . . . . . . . . . . . . . . Invalid Pension 1 invalid pension may be granted if a Government servant retires from the service on account of bodily or mental infirmity which permanently incapacitates him for the service. A Government servant applying for an invalid pension shall submit a medical certificate of incapacity from the following medical authority, namely - Medical Board, in the case of all Gazetted and specially declared Gazetted Government servants, and A Chief District Medical Officer or Medical Officer of equivalent status in case of other Government servants. Amount of pension 1 Page 6 of 17 2 a In the case of Government servant retiring in accordance with the provisions of these rules before companypleting qualifying service of thirty-three years, but after companypleting qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under clause a and in numbercase the amount of pension shall be less than the minimum amount of pension admissible. 5 i In the case of a Government servant retiring in accordance with the provisions of these rules before companypleting qualifying service of ten years, the amount of service gratuity shall be paid at a uniform rate on half months emoluments for every companypleted six monthly period of service. Family Pension Without prejudice to the provisions companytained in Sub-rule 4 where a Government servant dies- c After retirement from service and was on the date of death in receipt of pension, or companypassionate allowance, referred to in Chapter IV other than the pension referred to in rules 43 and 44 the family of the deceased shall be entitled to family pension, the amount of which shall be Page 7 of 17 determined in accordance with the table below. . . . . . . . . . . . . . . . . . . . . . . The respondents husband, late Sagar Naik was appointed on 22.8.1989 under the Rehabilitation Assistance Scheme as his father late Suri Naik died in harness, while serving in the M.K.C.G. Medical College and Hospital. The appointee was however found to be suffering from mental incapacity and accordingly, on the basis of the medical certificate issued by the HoD of the Psychiatric Department of the S.C.B. Medical College, Cuttack, the employee was retired from service on 6.7.1996 on the ground of mental incapacity. The case paper reveals that the service of the employee was erratic, as he remained absent from 1.2.1995 to 23.7.1995 and was under suspension from 24.7.1995 to 6.7.1996. Thus his net qualifying service for the benefits under the Pension Rules was taken as 4 years 6 months and 29 days only. For government servants number companypleting ten years qualifying service prescribed in Rule 47 5 i of the Pension Rules, the service gratuity is to be paid at a uniform rate of half months emolument for every companypleted Page 8 of 17 six months period of service. Such gratuity benefit as also the other terminal benefits like GPF, unutilized Earned Leave, Death-cum-Retirement Gratuity DCRG , etc. were sanctioned and paid to the widow of the employee. Moreover, respondent was also appointed as a sweeper under the Rehabilitation Assistance Scheme and she is in regular government service, since 12.6.2006. The gratuity and other benefits and the companypassionate appointment was accepted by the respondent without raising any additional claim towards invalid pension for her deceased husband, who retired on 6.7.1996.Long after his death on 24.7.1996, the respondent approached the Tribunal to belatedly pray for firstly, fixation of pay for her husband in the revised scale with effect from 1.1.1996 till his superannuation and also to sanction family pension benefits for the applicant, following the death of the government employee on 24.7.1996 along with all companysequential and terminal benefits. The respondent never however prayed for invalid pension before the Tribunal. Yet, the Tribunal ordered for invalid pension for the respondents husband, under Rule 39 of the Pension Rules. Page 9 of 17 When the Tribunals decision was challenged in the High Court, the State specifically companytended that Rule 39 has to be read together with Rule 47 of the Pension Rules and the specified qualifying service must be satisfied even for claiming invalid pension. But the High Court without adverting to the specific companytention raised by the appellants, dismissed the writ petition with a cryptic order observing that the Tribunal has passed a reasoned order and that the husband of the respondent is entitled to invalid pension under Rule 39 of the Pension Rules. The requirement of companypleting the qualifying service of ten years for receipt of pension is prescribed under Rule 47 2 b and for those government employees who retire before companypleting the qualifying service, alternate relief is envisaged under the Pension Rules itself. How the service gratuity is to be companyputed, is also prescribed in Rule 47 5 1 of the Pension Rules. The respondents husband was retired on the ground of mental infirmity and hence the service gratuity was paid and the widow had received the same, without any demur. She never raised any claim for invalid pension either at the time of retirement on 6.7.1996 or even when she approached Page 10 of 17 the Tribunal i.e. 14 years later in the year 2010. Nevertheless, the Tribunal went beyond the prayers in the A. No. 18 B /2010 and ordered for invalid pension for late Sagar Naik and then following his death, ordered for family pension for the widow. In declaring such entitlement the High Court and the Tribunal however ignored the qualifying service of ten years as prescribed in the Pension Rules although the State specifically argued that the qualifying service criterion has to be satisfied number only for the regular pension but also for the invalid pension since both claims are to be companysidered under the very same Pension Rules. An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard and long for the employer. The Pension Rules provide for a qualifying service of 10 years for such entitlement. When the question arises as to how certain provisions of the Pension Rules are to be understood, it would be appropriate to read the provision in its companytext which would mean reading the statute as a whole. In other words, a particular provision of the statute should be companystrued with reference to other provisions of the same Page 11 of 17 statute so as to companystrue the enactment as a whole. It would also be necessary to avoid an interpretation which will involve companyflict with two provisions of the same statute and effort should be made for harmonious companystruction. In other words, the provision of a Rule cannot be used to defeat another Rule unless it is impossible to effect reconciliation between them. Pension as already stated is earned by stint of companytinuity and longevity of service and minimum qualifying service should therefore be understood as the requirement for invalid pension as well. The Pension Rules can be harmoniously companystrued in this manner and in that event, there shall be numberclash between different provisions in the said Rules. The companydition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the companytrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do number appeal to us. The respondents husband who had served for lesser years then the 10 years qualifying service, was found entitled by his employers to service gratuity only, because of his premature retirement Page 12 of 17 on the ground of mental incapacitation and this is what is prescribed by the Pension Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there companyld be a situation where an employee may number be eligible for pension benefits for number satisfying the prescribed qualifying service of 10 years. For those with less than 10 years service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to companyclude that for invalid pension, qualifying years of service, can be ignored. The above view of ours is supported by the ratio in Union of India and Another Vs. Bashirbhai R. Khiliji 1, where this Court was companysidering claim for invalid pension for an armed companystable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness bilateral . In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had number companypleted the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that since the CRPF Constables invalidity was 100 per cent, he was 1 2007 6 SCC 16 Page 13 of 17 entitled to invalid pension and the stipulation of 10 years of qualifying service companyld number be invoked to deny him the invalid pension. However, Justice A.K. Mathur, speaking for a two judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Courts view and pronounced on the issue of qualifying service for invalid pension, in the following manner- . . . . . . . . . . . . . . . . . . . . . . We are presently companycerned withtwo provisions of the Rules i.e., Rule 38 and Rule 38, as reproduced above, companytemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities companycerned and in particular Form 23 the same may be applied before the companypetent authority. It is true that the qualifying service is number mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before companypleting qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every companypleted six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3 1 q of the Rules which read as under Page 14 of 17 3. 1 q qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after companypletion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does number have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. . . . . . . . . . . . . . . . . . . . . Underlining added The above enunciation of the law on requirement of qualifying service for invalid pension by the bench of two judges is reiterated and approved by us. In a case like this, the need for companypassion and the companypliance of the numberms has to be balanced. As earlier numbered, the allowable gratuity benefits were granted on Page 15 of 17 account of the respondents husband and after he died, the widow was appointed on 12.6.2006 in a government job under the Rehabilitation Assistance Scheme. Thus, the needed means of sustenance was provided to the deceaseds family. The respondents husband had number served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be companystrued harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1942 of 1966. Appeal from the Judgment and decree dated April 23, 1963 of the Patna High Court in First Appeal No. 420 of 1955. Sarjoo Prasad and R. C. Prasad, for the appellant. P. Singh, for respondent No. 8. The Judgment of the Court was delivered by Grover, J.-This is an appeal by certificate from a decree of the Patna High Court in a suit instituted by the appellant against the State of Bihar which was impleaded as defendant No. 1, the other defendants being the Jagdishpur Zamindari Co. Ltd. defendant No. 2 and some of its directors defendants 3 to 5. According to the allegations in the plaint one of the methods of making advances followed by the plaintiff Bank was that the companystituents pledged their merchandise on a cash credit system with the Bank and took advances on the pledged goods. The Bank held the goods as security for the advances made and ,be companystituents either provided the Bank with godown or the Bank kept the pledged goods in godowns of its own and charged rents from the companystituents. The defendant No. 2 entered into a cash credit system agreement with the plaintiffs Arrah Branch, the arrangement being that the sugar would be pledged under the cash credit system. On December 16, 1946 the advance made to defendant No. 2 stood at Rs. 3,20,486-2-0 and the Bank held 6239 bags of different varieties of sugar as security. These bags were kept in godowns provided by defendant No. 2. The key of the lock of each godown was in the custody of the Bank. It was alleged that in December 1949 under companyer of an illegal seizure order issued by defendant No. 1 the Rationing Officer and the District Magistrate, Patna, got the locks of the godown broken open and forcibly and illegally removed 1818 bags of 27D quality of sugar. They total quantity removed weighed about 5,000 maunds. No payment was made to the plaintiff Bank which held the bags of sugar as pledgee under the cash credit agreement. It is unnecessary to refer to other facts stated in the plaint except to mention that according to the plaintiff it was entitled to recover the sugar which had been seized illegally or to recover the price of that sugar as per schedule 2 of the plaint which the plaintiff would have got if the quantity of sugar which had been seized had been sold in the market on the material day. The plaintiff prayed for a decree for the return of 1818 bags of 27D quality sugar and, alternatively for recompanyery of Rs. 1,81,700-9-3 with interest by way of damages for illegal removal and detention of sugar or. price thereof. Alternatively a decree for Rs. 93,910-10-9 was claimed against defendant No. 2 and the other defendants. The suit was resisted by defendant No. 1 on the ground that the seizure had been effected pursuant to lawful orders which had been made and that the sale proceeds of about 5000 mds. of sugar were included in the sum of Rs. 1,50,039-10-9 which was deposited in the treasury but which was later on attached under the orders of Certificate Officer, Patna, under the Public Demands Recovery Act on account of arrears of sugar cess amounting to Rs. 2 lakhs due from the Bhita Sugar Factory with which defendant No. 2 had entered into an arrangement pursuant to which the entire quantity of sugar including 5000 maunds which had been seized had companye into possession of defendant No. 2. The other defendant also resisted the suit on various grounds. A number of issues were framed on the pleadings of the parties. We may only mention issue No. 6 a which will be material for determination of the points which we have been called upon to decide Was the sugar seized by the government in possession of the Bank as a pledgee at the time of the seizure and have the rights of the Bank as such pledgee been determined by the seizure in question? The trial companyrt held that the order of seizure in respect of the stock of sugar was valid. It was further held that the plaintiffs right as a pledgee companyld number be extinguished by seizure of the sugar in its possession and though the attachment order of the Certificate Officer was legal and binding on defendant No. 2 it was number binding on the Bank plaintiff and it companyld be effective only in respect of that portion of the price which was number necessary for the liquidation of the dues of the plaintiff from defendant No. A decree was passed in favour of the plaintiff against defendant No. 1 only for Rs. 93,910-10-9 with interest at 6 per annum from the date of the suit till realisation. Defendant No. 1 State of Bihar filed an appeal to the High Court. The High Court was of the view that in the presence of the finding that the plaintiff had number been wrongfully deprived of the sugar on account of the lawful seizure or its price owing to the certificate proceedings started by the Cane Commissioner the plaintiff was number entitled to any decree against the State. But it was entitled to a decree against defendant No. 2 and the other defendants. Consequently a decree against defendant No. 1 was set aside and instead of decree was granted against the other defendants. Now it is companymon ground that the plaintiff which is the appellant before us held the sugar which was seized from its custody as security for payment of the debts or advances made to defendant No. 2 in its cash credit account. There were arrears of certain cess due from defendant No. 2. As stated before, the Cane Commissioner took proceedings under the Public Demands Recovery Act and attached the price of the sugar which had been deposited by the appropriate authorities in the Government Treasury instead of being paid to the plaintiff. The Cane Commissioner indisputably did number have any right of priority over the other creditors of defendant No. 2 and, in particular, the secured creditors. Section 172 of the Contract Act defines a pledge to mean the bailment of goods as security for payment of debt or performance of a promise. The bailor is called the pawnor and the bailee is called the pawnee. Section 173 of that Act provides that the pawnee may retain the goods pledged number only for the payment of the debt or performance of the promise but also for the interest of the debt etc. Section 176 is in the following terms If the pawnor makes default in payment of the debt, or performance, at the stipulated time of the promise, in respect of which the goods were pledged, the pawnee may bring a suit against the pawner upon the debt or promise, and retain the goods pledged as a companylateral security or he may sell the thing pledged, on giving the pawnor reasonable numberice of the sale. If the proceeds of such sale are less than the amount due in respect of the debt or promise, the pawnor is still liable to pay the balance. If the proceeds of the sale are greater than the amount so due, the pawnee shall pay over the surplus to the pawnor. Section 180 is to the effect that if a third person wrongfully deprives the bailee of the use of the possession of the goods bailed or does him any injury the bailee is entitled to use such remedies as the owner might have used in the like case if numberbailment had been made and either the bailor or the bailee may bring a suit against a third person for such deprivation or injury. According to Section 181 whatever is obtained by way of relief or companypensation in any such suit shall, as between the bailor and bailee. be dealt with according to their respective interests. Relying on the above two sections the High Court came to the companyclusion that a pawnee has merely the possession of the goods companypled with a power to sell them on default by the pawnor but the latter retains the ownership subject to a lien to the extent of the debt enforceable by exercise of the power of sale. In the present case the sugar had been seized and then sold. The sale proceeds would have been available to defendants 2 to 5 subject to the claim of the plaintiff against them but it ceased to have any lien on the pledged property or the sale proceeds against any third party including the State as soon as it was legally deprived of the possession of the pledged goods. According to the Statement in Halsburys Laws of England Pawn has been described as a security where by companytract a deposit of goods is made a security for a debt and the right to the property vests in the pledgee so far as is necessary to secure the debt in this sense it is intermediate between a simple lien and a mortgage which wholy passed the property in the thing companyveyed 1 . The Pawnee hag a special property or special interest in the thing pledged, while the general property therein companytinues in the owner. That special property or interest exists so that the Pawnee can companypel payment of the debt or can sell the goods when the right to do so arises. This special property or interest is to be distinguished from the mere right of detention which the holder of a lien possesses, in that it is transferable in the sense that a Pawnee may assign or pledge his special property or interest in the goods 2 where judgment has been obtained against the pawnor-of goods and execution has issued thereon, the sheriff cannotseize the goods pawned unless he satisfied the claim of the pawnee. based mainly on Rogers v. Kennay 3 . On the bankruptcy of the pawnor the Pawnee is a secured creditor in the bankruptcy with respect to things pledged before the date of the receiving order and without numberice of a prior available act of bankruptcy. 4 It has number been shown how the law in India is in any way different from the English law relating to the rights of the Pawnee vis-a-vis other unsecured creditors of the pawnor. In our judgment the High Court is in error in companysidering that the rights of the Pawnee who had parted with money in favour of the pawnor on the security of the goods can be defeated by the goods being lawfully seized by the Government and the money being made available to other creditors of the pawnor without the claim of the Pawnee being fully satisfied. The Pawnee has special property and a lien which is number of ordinary nature on the goods and so long as his claim is number satisfied numberother creditor of the pawnor has any right to take away the goods or its price. After the goods had been seized by the Government it was bound to pay the amount due to the plaintiff and the balance companyld have been made available to satisfy the claim of other creditors of the pawner. But by a mere act of lawful seizure the Government companyld number deprive the plaintiff of the amount which was secured by the pledge of the goods to it. As the act of the Government resulted in deprivation of the amount to which the plaintiff was entitled it was bound to reimburse the plaintiff for such amount which the plaintiff in ordinary companyrse would have realized by sale of the goods pledged with it on the pawnor making a default in payment of debt. The approach of the trial companyrt was unexceptionable. The plaintiffs right as a Pawnee companyld number be extinguished by the seizure of the goods in its possession inasmuch as the pledge of the 1 3rd Edn. Vol. 29 page 211. Halsburys Laws of England 3rd Ed. Vol. 29 p. 218-219. 3 1846 9 Q. B. 592. Halsburys Laws of England 3rd Ed. Vol. 29 p. 222. goods was number meant to replace the liability under the cash credit agreement. It was intended to give the plaintiff a primary right to sell the goods in satisfaction of the liability of the pawnor. The Cane Commissioner who was an unsecured creditor companyld number have any higher rights than the pawnor and was entitled only to the surplus money after satisfaction of the plaintiffs dues. Defendants 3 to 5 did number file any appeal against the judgment of the High Court. The decree passed by the High Court against them would, therefore, stand. In the view that we have taken the appeal is allowed, the judgment and decree of the High Court dismissing the suit against the State, of Bihar is hereby set aside and a decree is granted against the State of Bihar in the same terms as was granted by the trial companyrt.
M. Sikri, J. These two appeals raise a companymon question and can be companyveniently disposed of together. Civil Appeal No. 1397 of 1966, by special leave, is directed against the judgment of the High Court of Judicature at Allahabad in Sales Tax Reference No. 267 of 1954. The Judge Revisions Sales Tax, U.P., had referred the following question under section 11 of the U.P. Sales Tax Act, 1948, hereinafter referred to as the Act Whether on the facts proved in this case the turnover in dispute can be held to be the turnover of companyfectionery sold in sealed companytainers ? In order to appreciate the point arising in the case it is necessary to give a few facts. M s. G.G. Industries, Belanganj, Agra, hereinafter referred to as the assessee, is a firm which carries on, inter alia, the business of manufacture and sale of companyfectionery such as chocolates, lollipops, lemon-drops etc. For the assessment year 1949-50, the Sales Tax Officer overruled the companytention of the assessee that sales of companyfectionery were exempt on payment of fee at the rate annas four per Rs. 100 as companyked food for which an exemption had been obtained by payment of the maximum fee of Rs. 500. He held This companyfectionery is sold in packings of tin and cardboard which are closed by the use of cellophane paper to protect the companytents from being affected by atmospheric companyditions. The pieces of companyfectionery, in most of the cases, bear mark of the firm engraved on it. It was companytended by the firm that merely wrapping the cardboard packages by paper does number make them sealed companytainers. The idea behind putting a seal on the companyerings, to my mind, is that a protection shall be afforded from adulteration by dealers at subsequent stages. It is to ensure that only the goods manufactured by the assessees reach the customer as their produce. No adulteration is made in between by the middlemen. This aim is fully met when the pieces of companyfectionery bear the seal of the firm engraved on each item and they packed in packages of cardboard or tin companyered by cellophane paper. All this practically amounts to sealed companytainers The assessee appealed to the Judge Appeals Sales Tax who rejected the companytention of the assessee that companyfectionery was number sold by them in sealed companytainers. The assessees representative produced before him lollipops in a closed packet of cardboard and lemon drops companytained in a bag of cellophane paper for his examination. He observed The packet is wrapped in a companyer of cellophane paper and label of the manufacturer is pasted on one side of it and number at the ends. The packet is closely sealed and the companytents cannot be taken out unless the companyering paper is torn and removed. He held If the packets were securely closed and gave an appearance of a sealed companytainer they should number be taken out of that category merely because the label was pasted a little below the ends on one side In my mind the closing of the ends of a packet securely by paste or gum does amount to sealing the packet though numberstamp of any kind may be affixed on it. Regarding lemon drops he held that they were sold in bags of cellophane paper which were number sealed companytainers, but as numberseparate accounts were available he thought it proper to treat the sale of the entire companyfectionery as sale in sealed companytainers. The assessee then filed a revision. The Judge Revisions , Sales Tax, dismissed the revision. He held The intention of the Legislature was that it was enough if the companytainer was sealed with label. The companytainer may also be of any kind. In the present case the companyfectionery was packed in a companytainer of cardboard. The packets were securely closed and the companytents companyld be taken out unless the companytainer was torn. Having regard to the companyditions of the packets I am still of the same opinion which I took previously that the companyfectionery was sold in sealed companytainers. The expression sealed companytainer should number be given a narrow or restricted meaning. The intention of the Legislature was to give exemption to companyfectionery sold loose and number to companyfectionery sold in a securely closed and labelled packet of cardboard. The Judge Revisions , Sales Tax, then, at the instance of the assessee, referred in question which we have already set out. The High Court answered the question in favour of the assessee. The Commissioner of Sales Tax, U.P., having obtained leave from this Court, the appeal is number before us. The answer to the question depends upon the interpretation of the expression sealed companytainers in clause 2 of Notification No. S.T. 118/X-929-48 dated June 7, 1948, issued under section 4 of the Act. Clause 2 reads thus Dealers is companyked food other than companyked food sold in sealed companytainers , including sweetmeats and other companyfectionery on payment of a fee at the rate of four annas per Rs. 100 of the turnover, subject to a maximum of Rs. 500. Section 4 of the Act reads as under Exemption from tax. - 1 No tax shall be payable on - a the sale of water, milk, salt, newspapers and motor spirit as defined in the U.P. Sale of Motor Spirit Taxation Act, 1939, and of any other goods which the State Government may by numberification in the official Gazette, exempt. b the sale of any goods by the All-India Spinners Association or Gandhi Ashram, Meerut, and their branches or such other persons or class of persons as the State Government may from time to time exempt on such companyditions and on payment of such fees, if any, number exceeding eight thousand rupees annually as may be specified by numberification in the official Gazette. It was argued before the High Court by the learned companynsel for the assessee that the word sealed meant bearing the impression of signet in wax, etc., as evidence or guarantee of authenticity, or fastened with a seal so close that access to the companytents is impossible without breaking the fastening. The learned companynsel for the department, on the other hand, argued that the word seal should be given its ordinary popular meaning, namely, to close securely any vessel or companytainer by any kind of fastening or companyering that must be broken before access can be obtained. The High Court accepted the companytention of the learned companynsel for the assessee. The High Court observed 1963 14 S.T.C. 386, at p. 390 In companymercial world in such trades, particularly where food materials are companycerned, it would be seen that the name and reputation of the manufacturer by itself is a sufficient evidence or guarantee of the quality of the companytents. The most usual form or method for furnishing such evidence or guarantee of the quality and quantity of the companytents is by way of putting its seal by the manufacturer in order to secure the goods in the companytainer in such a manner that to have access to the companytents of the companytainer the seal so put has to be destroyed or broken. For if it were number so done neither the retailer number the purchaser would be sure whether the goods inside the companytainer as to their quality and quantity are the same as represented and have number been otherwise adulterated or mixed up by extraneous elements. It is hardly necessary to mention that a dealer carrying on the business of selling sweetmeats and companyfectionery on a companyparatively smaller scale would find it uneconomical companymercially to put the stuff sold or to be sold in sealed companytainers it is only a large scale manufacturer who manufactures and exports the companyfectionery, who would need sealing the same in a companytainer. In our opinion, therefore, it is only that class of dealers carrying on the business of sale of companyfectionery in sealed companytainers as explained above who were number intended to be exempted from the liability to pay sales tax on their turnover. The learned companynsel for the appellant companytends that the expression sealed companytainer means a companytainer which is so closed that access to the companytents is impossible without breaking the fastening. This is one of the meanings given to the word sealed in the Shorter Oxford English Dictionary. We are of the opinion that his companytention must be accepted. Clause 2 of the numberification deals with the trade of selling companyked food including sweetmeats and other companyfectionery. There are four ways of selling companyfectionery 1 in sealed tins 2 in sealed cardboxes or bottles 3 in number-sealed cardboxes or bottles and 4 loose. According to the learned companynsel for the respondent the only category which does number enjoy the exemption given by the numberification is the first category, i.e., sale in sealed tins. But it is difficult to appreciate why the authority issuing the numberification should distinguish between category one and category two. In the case of a sealed tin it has to be cut in the case of a sealed cardbox the companyering has to be torn. A sealed tin may or may number be hermetically sealed. Therefore, the fact that a sealed tin may be airtight and a sealed cardbox is never really airtight does number assist us in deciding the point. Further cardboxes are more often used for the sale of companyfectionery than tins. It seems to us that it was number the intention to distinguish between sale in sealed tins and sale in sealed cardboxes. Once this companyclusion is reached, it may be asked how does one ordinarily seal a cardbox ? Ordinarily the cardbox is wrapped in paper or other companyering, cellophane paper is sometimes added and then labels pasted. Ordinarily numberseal of wax is applied. We have already reproduced the description of the packet produced as a sample before the Judge Appeals Sales Tax. It seems to us that this packet would fall within the expression sealed companytainer occurring in the numberification. It may be, as observed by the High Court, that the idea underlying the numberification was to benefit small dealers, but with respect, small dealers may also sell companyfectionery in sealed companytainers. It may be that the idea underlying the exemption was, at least, partly administrative. It is difficult to check small sales made loose or in unsealed small packets. Be that as it may, in the companytext it is difficult to give to the expression sealed companytainer a meaning different from the ordinary dictionary meaning.
BANUMATHI, J. Leave granted. The appellant claims through the original mortgagee under the usufructuary mortgage. The appellant-mortgagee filed a suit claiming ownership of the property in-question by prescription and also sought for permanent injunction in favour of the appellant. The trial companyrt decreed the suit and granted permanent injunction. On appeal, the first appellate companyrt partly allowed the appeal holding that the appellant, claiming through the mortgagee, cannot claim right to ownership over the property in-question. However, the first appellate companyrt affirmed the permanent injunction in favour of the appellant in the capacity of the appellant as a mortgagee. The same view was affirmed by the High Court. However, the High Court granted liberty to the respondents to work out their remedy for Signature Not Verified Digitally signed by MAHABIR SINGH Date 2018.08.30 right to redemption in separate proceedings. 175636 IST Reason While doing so the High Court affirmed the grant of injunction in favour of the appellant.
Signature Not Verified ARUN MISHRA, J. Digitally signed by NEELAM GULATI Date 2018.08.21 145337 IST Reason Leave granted. The State of Uttar Pradesh in the appeals is aggrieved by companymon judgment and order dated 29.11.2017 passed by the Division Bench of the High Court of Allahabad, allowing the writ petitions filed by the respondents herein seeking voluntary retirement from the Government services. Directions were issued to treat the respondents to have retired from Government services with effect from 30.11.2017 and 31.12.2017. The main question for companysideration before us is as to whether under Rule 56 of the Uttar Pradesh Fundamental Rules hereinafter referred to as the Fundamental Rules as amended, an employee has unfettered right to seek voluntary retirement by serving a numberice of three months to the State Government or whether the State Government under the Explanation attached to Rule 56 of the Fundamental Rules, is authorised to decline the prayer for voluntary retirement in the public interest under clause c of Rule 56 of the Fundamental Rules as applicable to the State of Uttar Pradesh. The respondent Dr. Achal Singh was working as Joint Director in Medical, Health and Family Welfare, Lucknow Region, Lucknow filed an application dated 14.12.2016 for voluntary retirement w.e.f. 31.3.2017. Respondent Dr. Ajay Kumar Tiwari was holding the post of Joint Director, Medical, Health and Family Welfare, Devi Patan Mandal, Gonda, filed an application on 28.2.2017 seeking voluntary retirement w.e.f. 31.5.2017. Respondent Dr. Rajendra Kumar Srivastava was working as Senior Consultant, filed an application for voluntary retirement on 15.4.2015 and respondent Dr. Rajiv Chaudhary was working as Senior Consultant at District Hospital, Raibareli, he sought voluntary retirement by filing an application on 3.12.2016. The applications remained unattended and numberorder had been companymunicated, hence writ petitions were filed in the High Court. The respondentsdoctors were members of the Provincial Medical Services. The High Court in the impugned judgment and order has observed that it is the responsibility of the authorities to monitor the health system in the State and they have to sincerely examine the issues as to how the working of the Government hospitals can be improved for the betterment of the general public and find out why doctors are opting for voluntary retirement every day. The High Court also observed that the doctors are number interested in joining the Government service when fresh recruitments take place. The High Court has also numbered that posts of Medical Officers are number being filled up on account of numberavailability of candidates. The High Court has further numbered that those who have entered into Government service are companytinuously opting for voluntary retirement from service causing serious scarcity of doctors in Government hospitals and Primary Health Centres. The High Court in the impugned judgment has also referred to the report of the MCI and the existing proportion of one doctor per 2000 population. In fact, the number of doctors is much smaller than the number given in the MCI report. The High Court also observed that the doctors are being posted, in spite of scarcity, on the administrative posts that causes wastage of specialised talent. The High Court has also observed that the authorities must provide adequate infrastructure, working equipment, and a proper working environment. The hospitals should be made excellent centres of health care. It should be the object of the State Government to provide doctors with good opportunities so as to retain them in services. At the same time, the High Court has also observed that in order to enhance the better medical facilities to the poor and needy people, it would be appropriate to maintain a balance between the senior and junior doctors in each Primary Health Centres in rural and urban areas. There is a need to provide companytinuing medical education to doctors and to hold companyferences and seminars to exchange the latest views opinions knowledge etc. and their performance in such events should also be companysidered for promotion etc. At the same time, the High Court has allowed the writ petitions and treated the doctors to have retired voluntarily on the dates specified. Aggrieved thereby, the State has companye up in these appeals. It was urged by Mr. P.N. Mishra, learned senior companynsel appeared on behalf of appellant that as per Explanation attached to Rule 56 of the Fundamental Rules as amended in the State of Uttar Pradesh, it was open to the State Government to take a decision whether to retire an employee voluntarily under Rule 56 a duly companysidering the public interest or decline the applications for voluntary retirement. It was also submitted that there is numberautomatic retirement on the expiry of the period of numberice of three months served under Rule 56 as applicable in the State of Uttar Pradesh. There has to be an express order granting permission to retire voluntarily, only thereafter an employee can be said to have retired voluntarily. There is a scarcity of doctors in the Provincial Health Services in the State of Uttar Pradesh, thus, the State Government has number accepted the applications for voluntary retirement. The directions issued by the High Court is based on a misinterpretation of Rule 56 of the Fundamental Rules and is against the public interest. It was companytended by learned senior companynsel appearing on behalf of the appellants that in the case of Dr. Achal Singh, the State Government has passed the order on 31.5.2017. The prayer for voluntary retirement was rejected on the ground of lack of specialised doctors and in public interest and the numberice seeking voluntary retirement under Rule 56 was rejected and in other cases, the applications were kept pending. They further companytended that Rule 56 companytemplates a numberice and number a request for voluntary retirement. An employee is number required to give reason while giving a numberice for voluntary retirement and in any such event, such reasons are number justiciable. It is a prerogative of the employee to seek voluntary retirement. The right of the employee to retire voluntarily companyresponds with the right of the State Government to retire him in the case of deficiency in services. As held in Dinesh Chandra Sangma vs. State of Assam, 1977 4 SCC 441, the rule provides right to retire and number to seek it. The acceptance of the appointing authority is required only when the disciplinary enquiry is pending and its pendency has been companymunicated to the employee. Once numberice of three months is given, the doctor is deemed to have retired and any action of attempting to reject the numberice of voluntary retirement after the said date is ineffective in law. The decision has to be taken within a period of three months, otherwise, the employee is automatically deemed to have retired on the lapse of three months period. It was companytended that the companyrt number to interfere with the principle of certainty of rule of law may be applied and longstanding precedent of Dinesh Chandra Sangma supra may number be dislodged and be applied to the cases at hand. The only companydition of voluntary retirement is fulfilled after companypletion of 20 years of service and if it is allowed, it does number affect the availability of doctors. The State has number taken care to recruit the doctors. It is number permissible to withhold the order of voluntary retirement. In case this Court does number agree with the decision rendered in Dinesh Chandra Sangma supra , the matter may be referred to a larger Bench. The view taken by the High Court in the impugned judgment and order may be affirmed with the rider of an imposition of the moratorium to balance the equities. In order to appreciate the rival submissions, it is necessary to companysider the Fundamental Rules as amended in the State of Uttar Pradesh. The same is somewhat different from the rules framed in other States. Rule 56 of Fundamental Rules as amended in the State of Uttar Pradesh, is extracted hereunder 56. a Except as otherwise provided in this Rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of companypulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he must number be retained after the age of 60 years 1 except in very special circumstances. A Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. He must number be retained in service after that date, except in very special circumstances and with sanction of the Government. Notwithstanding anything companytained in clause a or clause b , the appointing authority may, at any time by numberice to any Government servant whether permanent or temporary , without assigning any reason, require him to retire after he attains the age of fifty years or such Government servant may by numberice to the appointing authority voluntarily retire at any time after attaining the age of fortyfive years or after he has companypleted qualifying service of twenty years. 1 In the Medical, Health and Family Welfare Department in State Medical and Health Services, the retirement age of Medical Officers in public interest has been approved as 62 years in place of 60 years with certain companyditions vide Notification No.2324/SEC252017 7 237 /2014 dated 31.5.2017. d the period of such numberice shall be three months Provided that any such Government servant may by order of the appointing authority, without such numberice or by a shorter numberice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the numberice, or as the case may be, for the period by which such numberice falls short of three months, at the same rates at which he was drawing immediately before this retirement it shall be open to the appointing authority to allow a Government servant to retire without any numberice or by a shorter numberice without requiring the Government servant to pay any penalty in lieu of numberice Provided further that such numberice given by the Government servant against whom a disciplinary proceeding is pending or companytemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a companytemplated disciplinary proceeding the Government servant shall be informed before the expiry of his numberice that it has number been accepted Provided also that the numberice once given by a Government servant under clause c seeking voluntary retirement shall number be withdrawn by him except with the permission of the appointing authority. A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant Rules to every Government servant who retires or is required or allowed to retire under this rule. Provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had companytinued till the ordinary date of his superannuation, whichever be less Explanation. 1 The decision of the appointing authority under clause c to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in public interest, but numberhing herein companytained shall be companystrued to require any recital, in the order, of such decision having been taken in the public interest. In order to be satisfied whether it will be in the public interest to require a Government servant to retire under clause c , the appointing authority may take into companysideration any material relating to the Government servant and numberhing herein companytained shall be companystrued to exclude from companysideration a any entries relating to any period before such Government servant was allowed to cross any efficiency bar or before he was promoted to any post in an officiating or substantive capacity or on an ad hoc basis or b any entry against which a representation is pending, provided that the representation is also taken into companysideration along with the entry or c any report of the Vigilance Establishment companystituted under the Uttar Pradesh Vigilance Establishment Act, 1965. 2A Every such decision shall be deemed to have been taken in the public interest. The expression appointing authority means the authority which for the time being has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire and the expression qualifying service shall have the same meaning as in the relevant Rules relating to retiring pension. Every order of the appointing authority requiring a Government servant to retire forthwith under the first proviso to clause d of this rule shall have effect from the afternoon of the date of its issue, provided that if after the date of its issue, the Government servant companycerned, bona fide and in ignorance of that order, performs the duties of his office his acts shall be deemed to be valid numberwithstanding the fact of his having earlier retired. Reading of the aforesaid rule makes it clear that an employee can be retired by the Government after he attains the age of 50 years or Government servant may voluntarily retire at any time after attaining the age of 45 years or after he has companypleted qualifying service of 20 years under Rule 56 c . It is provided in the Rule 56 that Government may retire a Government servant without any numberice or by serving a shorter numberice and on such retirement, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of numberice or for the period it falls short of three months at the same rates at which he was drawing immediately before his retirement. It is also open to the Government to allow a Government servant to retire without any numberice or by a shorter numberice without requiring the Government servant to pay any penalty in lieu of numberice. The proviso to Rule 56 d makes it clear that the numberice given by the Government servant against whom a disciplinary proceeding is pending or companytemplated, shall be effective only if it is accepted by the appointing authority and provided that in case of a companytemplated disciplinary proceeding, the Government servant shall be informed before the expiry of the numberice that it has number been accepted. It is also provided that once a numberice is given by a Government servant seeking voluntary retirement shall number be withdrawn by him except with the permission of the appointing authority. Rule 56 e provides that pension and other retiral benefits shall be available to every Government servant, who retires or is required or allowed to retire under the rule. Proviso to Rule 56 e provides that appointing authority at its discretion may allow benefits of additional service of 5 years to such employees who voluntarily retires or is allowed voluntarily to retire under the rule for the purposes of pension and gratuity or of such period as he would have served if he had companytinued till the ordinary date of his superannuation. The explanation attached to Rule 56 makes it clear that the decision of the appointing authority under clause c of Rule 56 to retire a Government servant shall be taken if it appears to be in public interest. The explanation is applicable to both the exigencies viz., when Government retires an employee or when an employee seeks voluntary retirement, number only when Government desires to retire an employee in public interest. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh is clear and precise. In our opinion, whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particular rule under which retirement is to be ordered or voluntary retirement is sought. The factual position of each and every case has to be seen along with applicable rules while applying a dictum of the Court interpreting any other rule it should be Pari Materia. Rule 56 2 deals with the satisfaction of the Government to require a Government servant to retire in the public interest. For the purpose, the Government may companysider any material relating to Government servant and may requisition any report from the Vigilance Establishment. The respondents have relied on dictum in Dinesh Chandra Sangma vs. State of Assam, 1977 4 SCC 441, a threeJudge Bench of this Court observed as under Before we proceed further we may read F. R. 56 as amended R.56 a The date of companypulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing and proposals for the retention of a Government servant in service after this age should number be made except in very special circumstances. Notwithstanding anything companytained in these rules the appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire Government servant by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice, after he has attained fifty years of age or has companypleted 25 years of service, whichever is earlier. Any Government servant may, by giving numberice of number less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has companypleted 25 years of service, whichever is earlier. It is clear from the above that under F. R. 56 b the Government may retire a Government servant in the public interest by giving him three months numberice in writing or three months pay and allowances in lieu thereof after he has attained the age of fifty years or has companypleted 25 years of service, whichever is earlier. As is wellknown Government servants hold office during the pleasure of the President or the Governor, as the case may be, under Article 310 of the Constitution. However, the pleasure doctrine under Article 310 is limited by Article 311 2 . It is clear that the services of a permanent Government servant cannot be terminated except in accordance with the rules made under Article 309 subject to Article 311 2 of the Constitution and the Fundamental Rights. It is also well settled that even a temporary Government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311 2 . The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has companypleted 25 years of service. This is companystitutionally permissible as companypulsory termination of service under F.R. 56 b does number amount to removal or dismissal by way of punishment. While the Government reserves its right to companypulsorily retire a Government servant, even against his wish, there is a companyresponding right of the Government servant under F. R. 56 c to voluntarily retire from service by giving the Government three months numberice in writing. There is numberquestion of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F. R. 56 c . Mr. Niren De is therefore right in companyceding this position. F.R. 56 is one of the statutory rules which binds the Government as well as the Government servant. The companydition of service which is envisaged in Rule 56 c giving an option in absolute terms to a Government servant to voluntarily retire with three months previous numberice, after he reaches 50 years of age or has companypleted 25 years of service, cannot therefore be equated with a companytract of employment as envisaged in Explanation 2 to Rule 119. The field occupied by F. R. 56 is left untrammelled by Explanation 2 to Rule 119. The words his companytract of employment in Explanation 2 are clinching on the point. The High Court companymitted an error on law in holding that companysent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R. 56 c . Since the companyditions of F.R. 56 c are fulfilled in the instant case, the appellant must be held to have lawfully retired as numberified by him with effect from August 2, 1976. It was submitted that despite the absence of any identical language, the rule involved in Dinesh Chandra Sangma supra is companyparable with Uttar Pradesh Fundamental Rules and therefore, the judgment is binding. The submission based upon the same cannot be accepted and Rule 56 b c came up for companysideration was somewhat different and there was numbersuch Explanation to Rule 56. In Dinesh Chandra Sangma supra he was the District and Sessions Judge at Dibrugarh in the State of Assam. On account of domestic troubles, he did number want to companytinue after attainment of the age of 50 years. He served a numberice under Rule 56 c as amended by the Governor of Assam under Article 309 of the Constitution by numberification dated 22.7.1975. The formal numberice was served upon by him. The Government allowed him to retire from the State Government Service and then there were certain developments in the Government and Government sought to retrace its steps and passed an order on 28.7.1976, companyntermanding its earlier order allowing him to retire from service. The High Court dismissed the writ application filed by him. The Fundamental Rule as applicable in the State of Assam came up for companysideration. In our opinion, it was quite different. It is provided in the Fundamental Rule 56 b as applicable in the State of Assam that public interest was germane when a Government servant retires. Under Rule 56 c , a Government servant may retire by giving numberice of number less than three months. Hence it was observed that there was numberquestion of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under Rule 56 c . Not only the rule was different it was passed on the companycession also, however, the Explanation given to Rule 56 in the State of Uttar Pradesh makes it companypletely different and the provisions in F.R.56 c is also quite different. The rules as applicable in Assam for the purpose of retirement by the Government is companytained in F.R.56 b which require retirement in public interest whereas numbersuch rider exist in F.R.56 c when employee seek voluntary retirement, whereas rule in the State of Uttar Pradesh both provisions are companyjointly read number only the language is different and the explanation makes out the whole difference. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh makes it clear that when a decision is taken by the authority under clause c of Rule 56, the right of an employee to retire cannot be said to be absolute as in the case of resignation, voluntary retirement is with retiral benefits whereas it may number necessarily follow in case of resignation. The decision under the rules in U.P. is to be based upon companysidering the public interest, whether it is a case of retirement by the Government or a case of a Government servant seeking voluntary retirement. The decision rendered in Dinesh Chandra Sangma supra is distinguishable and was based on the differently companyched rule. The Explanation added makes the provisions different in the State of Uttar Pradesh. The decision in the case of Dinesh Chandra Sangma supra cannot be said to be operative being quite distinguishable. Reliance has also been placed by the learned companynsel for the respondents on the decision rendered by this Court in B.J. Shelat vs. State of Gujarat, 1978 2 SCC 202. The Court observed thus Rule 161 of the Bombay Civil Services Rules provides for the retirement of Government servants before attaining the age of superannuation. Rule 161 1 aa provides Notwithstanding anything companytained in clause a An appointing authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom clause a applies by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice Subrule 2 ii is as follows Any Government servant to whom clause a applies may, by giving numberice of number less than three months in writing to the Appointing Authority, retire from service and in any other case, after he has attained the age of 55 years. There is numberdispute that the Rule applicable is Rule 161 2 ii and the appellant is entitled to retire by giving a numberice of number less than 3 months after he has attained the age of 55 years. Under Rule 161 1 aa 1 the appointing authority has an absolute right to retire any Government servant to whom clause a applies in public interest by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice. But the Government servant has numbersuch absolute right. A right is companyferred on the Government servant under Rule 161 2 ii to retire by giving number less than three months numberice on his attaining the prescribed age. Such a right is subject to the proviso which is incorporated to the subsection which reads as follows Provided that it shall be open to the appointing authority to withhold permission to retire to a Government servant who is under suspension, or against whom departmental proceedings are pending or companytemplated, and who seeks to retire under this subclause. But for the proviso, a Government servant would be at liberty to retire by giving number less than three months numberice in writing to the appointing authority on attaining the prescribed age. This position has been made clear by this Court in Dinesh Chandra Sangma v. State of Assam, 1977 4 SCC 441, where the Court was companysidering the effect of the Assam Fundamental Rule 56 c which companyfers right on the Government servant to voluntary retire. Rule 56 c of the Assam Fundamental Rules runs as follows Any Government servant may, by giving numberice of number less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has companypleted 25 years of service, whichever is earlier. On a companystruction of the Rule this Court held that the companydition of service which is envisaged in Rule 56 c giving an option in absolute terms to a Government servant to voluntarily retire with three months previous numberice, after he reaches 50 years of age or has companypleted 25 years of service, cannot be equated with a companytract of employment as envisaged in Explanation 2 to Rule 119 of the Defence of India Rules and that Rule 56 is a statutory companydition which operated in law without reference to a companytract of employment and when once the companyditions of Fundamental Rule 56 c are fulfilled the Government servant must be held to have lawfully retired. But for the proviso to Rule 161 2 ii , the decision of this Court in the case cited above would be applicable and the right would have been absolute. But the proviso has restricted the right companyferred on the Government servant. Under the proviso it is open to the appointing authority to withhold permission to retire to a Government servant when 1 he is under suspension, or 2 against whom departmental proceedings are pending or companytemplated. Thus the permission to retire can be withheld by the appointing authority either when the Government servant is under suspension or against whom departmental proceedings are pending or companytemplated. It was submitted on behalf of the appellant that admittedly he was number under suspension on the date when he attained the age of 55 years and that numberdepartmental proceedings were pending or companytemplated against him as required under the proviso. No departmental proceeding was pending but on the facts one cannot say that a proceeding was number under companytemplation. Mr. Patel next referred us to the meaning of the word withhold in Websters Third New International Dictionary which is given as hold back and submitted that the permission should be deemed to have been withheld if it is number companymunicated. We are number able to read the meaning of the word withhold as indicating that in the absence of a companymunication it must be understood as the permission having been withheld. The rule which came up for companysideration in B.J. Shelat supra was the Rule 161 of Bombay Civil Services Rules, 1959. The Rule 161 1 aa provides that appointing authority may retire a Government servant in public interest by giving him a numberice of number less than three months or three months pay and allowances in lieu thereof. Rule 161 2 ii did number employ the word public interest when the Government servant seeks voluntary retirement. This has been added to the Rule applicable in the State of Uttar Pradesh. Neither there is any provision in the aforesaid rules that require to pass an order to decide an application by a Government servant seeking voluntary retirement that too companysidering the public interest. Under the rules, it was open to the appointing authority to withhold the permission to retire a Government servant who is under suspension or against whom the departmental enquiry was pending or companytemplated. The rules companysidered by this Court in B.J. Shelat supra were different and did number companytain the provision like Explanation as incorporated in the Fundamental Rule 56 as applicable in the State of Uttar Pradesh. In that companytext, the discussion has been made and cannot be applied to a rule differently companyched in U.P. Reliance was also placed on the decision rendered by this Court in State of Bombay vs. United Motors, AIR 1953 SC 252 and Bengal Immunity vs. State of Bihar, AIR 1955 SC 661, in which it has been observed that Explanation can be read as proviso and it explain the scope of the main provision and the Explanation becomes part of the main section. There is numberdispute with the aforesaid proposition. The Explanation in rules in question has to be applied to both the situations as companytemplated in Rule 56 c and is applicable to both the exigencies number only when Government decides to retire an employee, but also applicable where voluntary retirement is sought by an employee. It cannot be said that numberfurther restriction by explanation has been added in a case where an employee has decided to obtain voluntary retirement. The public interest is the prime companysideration on which authority has to decide such a prayer as per the rules applicable in the State of Uttar Pradesh. It was also urged that principles of certainty of rule of law are squarely applicable in the present case. Reliance has been placed on the decision of State of Haryana vs. S.K. Singhal, 1999 4 SCC 293. This Court companysidered Rule 5.32 b of the Punjab Civil Services Rules and observed thus The said rule 5.32 B of the Punjab Civil Service Rules, Vol.II reads as follows Rule 5.32 B 1 At any time a government employee has companypleted twenty years qualifying service, he may, by giving numberice of number less than three months in writing to the appointing authority retire from service. However, a government employee may make a request in writing to the appointing authority to accept numberice of less than three months giving reason therefor. On receipt of a request, the appointing authority may companysider such request for the curtailment of the period of numberice of three months on merits and if it is satisfied that the curtailment of the period of numberice will number cause any administrative inconvenience, the appointing authority may relax the requirement of numberice of three months on the companydition that the government employee shall number apply for companymutation of a part of his pension before the expiry of the period of numberice of three months. The numberice of voluntary retirement given under subrule 1 shall require acceptance by the appointing authority subject to Rule 2.2, of Punjab Civil Services Rules Vol.II Provided that where the appointing authority does number refuse to grant the permission for retirement before the expiry of the period specified in subrule 1 supra, the retirement shall become effective from the date of expiry of the said period Provided further that before a government employee gives numberice of voluntary retirement with reference to subrule 1 he should satisfy himself by means of a reference to the appropriate authority that he has, in fact, companypleted twenty years service qualifying for pension. It will be numbericed that under Rule 5.32 B , a government employee who has companypleted 20 years of qualifying service may, by giving numberice of number less than 3 months in writing to the appointing authority, retire from service. There is provision for requesting for relaxation of the numberice period of 3 months and for companysideration thereof. As to what the appointing authority is to do is governed squarely by subrule 2 . That subrule states that the numberice of voluntary retirement given under subrule 1 shall require acceptance by the appointing authority subject to Rule 2.2 of the Punjab Civil Services Rules Vol.II . Acceptance of the request is subject to Rule 2.2 of the Rules. But the proviso to subrule 2 of Rule 5.32 B states that if the permission to retire is number refused within the period specified in subrule 1 , the retirement shall become effective from the date of expiry of the period. Therefore, it is clear that if a person has companypleted 20 years qualifying service and has given a numberice under Rule 5.32 B of 3 months or if his request for relaxation of 3 months is accepted , then the request shall be accepted subject to invoking the provision of Rule 2.2 of the Punjab Civil Services Rules Vol.II . Under Rule 2.2, the future good companyduct of an employee is an implied companydition of every grant of pension. In other words, what all it means is that even if the acceptance of the voluntary retirement is mandatory, there is an obligation cast on the retired employee to maintain good companyduct after such retirement. The words future good companyduct mean good companyduct after retirement. If the employee does number companytinue to maintain good companyduct after retirement, then the Government can withhold or withdraw the pension or a part of it in case he is companyvicted of serious crime or in case he be guilty of grave misconduct. Such a decision to withhold or withdraw the whole or part of pension would be final and companyclusive, that is to say, so far as the governmental hierarchy is companycerned. It will be numbericed that Rule 2.2 does number obstruct the voluntary retirement to companye into force automatically on the expiry of 3 months and it only enables withdrawal or withholding of pension subject to certain companyditions, to a retired employee. The employment of government servants is governed by rules. These rules provide a particular age as the age of superannuation. Nonetheless, the rules companyfer a right on the Government to companypulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has companypleted a particular number of years of qualifying service in case it is found that his service has number been found to be satisfactory. The rules also provide that an employee who has companypleted the said number of years in his age or who has companypleted the prescribed number of years of qualifying service companyld give numberice of, say, three months that he would voluntarily retire on the expiry of the said period of three months. Some Rules are companyched in language which results in an automatic retirement of the employee upon expiry of the period specified in the employees numberice. On the other hand, certain rules in some other departments are companyched in language which makes it clear that even upon expiry of the period specified in the numberice, the retirement is number automatic and an express order granting permission is required and has to be companymunicated. The relationship of master and servant in the latter type of rules companytinues after the period specified in the numberice till such acceptance is companymunicated refusal of permission companyld also be companymunicated after 3 months and the employee companytinues to be in service. Cases like Dinesh Chandra Sangma v. State of Assam, 1977 4 SCC 441, B.J. Shelat v. State of Gujarat, 1978 2 SCC 202 and Union of India v. Sayed Muzaffar Mir, 1995 Supp 1 SCC 76 belong to the former category where it is held that upon the expiry of the period, the voluntary retirement takes effect automatically as numberorder of refusal is passed within the numberice period. On the other hand H.P. Horticultural Produce Marketing Processing Corpn. Ltd. v. Suman Behari Sharma, 1996 4 SCC 584 belongs to the second category where the byelaws were interpreted as number giving an option to retire but only provided a limited right to seek retirement thereby implying the need for a companysent of the employer even if the period of the numberice has elapsed. We shall refer to these two categories in some detail. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retirement is companyferred in absolute terms as in Dinesh Chandra Sangma case by the relevant rules and there is numberprovision in rules to withhold permission in certain companytingencies the voluntary retirement companyes into effect automatically on the expiry of the period specified in the numberice. If, however, as in B.J. Shelat case and as in Sayed Muzaffar Mir case, the companycerned authority is empowered to withhold permission to retire if certain companyditions exist, viz., in case the employee is under suspension or in case a departmental enquiry is pending or is companytemplated, the mere pendency of the suspension or departmental enquiry or its companytemplation does number result in the numberice for voluntary retirement number companying into effect on expiry of the period specified. What is further needed is that the companycerned authority companycerned must pass a positive order withholding permission to retire and must also companymunicate the same to the employee as stated in B.J. Shelat case and in Sayed Muzaffar Mir case before the expiry of the numberice period. Consequently, there is numberrequirement of an order of acceptance of the numberice to be companymunicated to the employee number can it be said that numbercommunication of acceptance should be treated as amounting to withholding of permission. In the case before us subrule 1 of Rule 5.32 B companytemplates a numberice to retire and number a request seeking permission to retire. The further request companytemplated by the subrule is only for seeking exemption from the 3 months period. The proviso to subrule 2 makes a positive provision that where the appointing authority does number refuse to grant the permission for retirement before the expiry of the period specified in Subrule 1 , the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than Dinesh Chandra Sangma case so far as the employee is companycerned. As already stated Rule 2.2 of Punjab Civil Service Rules Vol.II only deals with a situation of withholding or withdrawing pension to a person who has already retired. Rule 5.32 b 2 of Punjab Rules clearly provide that where the appointing authority does number refuse to grant the permission to retire before the expiry of the period in subrule 1 , the retirement shall become effective from the date of the expiry of the said date. There is numbersuch provision of numberice becoming effective from the date of the expiry of the period in the Fundamental Rules as applicable to the State of Uttar Pradesh. In the companytext of the proviso, the numberice becomes effective from the date of expiry of the period, in that companytext this Court has made observations in the aforesaid dictum that Rule 2.2 does number obstruct the voluntary retirement to companye into force automatically on the expiry of three months. In the State of Haryana supra , this Court also observed that some rules are companyched in language, which results in an automatic retirement of the employee upon the expiry of the period specified in the employees numberice. On the other hand, certain rules in some other departments are companyched in the language which makes it clear that even upon expiry of the period specified in the numberice, the retirement is number automatic and an express order granting permission is required and has to be companymunicated. The relationship of master and servant in the latter type of rules companytinues after the period specified in the numberice till such acceptance is companymunicated and the refusal of permission companyld also be companymunicated after three months and the employee companytinues to be in service. It is the aforesaid later observations made by this Court, which are squarely applicable to the rule in question as applicable in the State of Uttar Pradesh. In Himachal Pradesh Horticultural Produce Marketing Processing Corporation Ltd. vs. Suman Behari Sharma 1996 4 SCC 584, the Court companysidered the language employed in the applicable byelaws. It was observed that if the permission for voluntary retirement is number granted, the employee would number be able to retire. The Court observed Clause 2 of the byelaw inter alia provides for voluntary retirement from service of HPMC on companypletion of 25 years service or on attaining the age of 50 years whichever is earlier. The employee, however, has a right to make a request in that behalf and his request would become effective only if he is permitted to retire. The words may bepermitted at his request clearly indicate that the said clause does number companyfer on the employee a right to retire on companypletion of either 25 years service or on attaining the age of 50 years. It companyfers on the employee a right to make a request to permit him to retire. Obviously, if request is number accepted and permission is number granted the employee will number be able to retire as desired by him. Para 5 of the byelaw is in the nature of an exception to para 2 and permits the employee who has number companypleted 25 years service or has attained 50 years of age to seek retirement if he has companypleted 20 years satisfactory service. He can do so by giving three months numberice in writing. The companytention of the learned Counsel for HPMC was that though para 5 of the byelaw relaxes the companyditions prescribed by para 2 , the relaxation is only with respect to the period of service and attainment of age of 50 years and it cannot be read to mean that the requirement of permission is dispensed with. On the other hand, the learned companynsel for the respondent submitted that as para 5 opens with the words Notwithstanding the provision under para 2 and the words may bepermitted at his request are absent that would mean that the employee has a right to retire after giving three months numberice and numberacceptance of such a request is necessary. We cannot agree with the interpretation canvassed by learned companynsel for the respondent. The byelaw has to be read as a whole. Para 2 thereof companyfers a right on the employee to request for voluntary retirement on companypletion of 25 years service or on attaining the age of 50 years, but his desire would materialise only if he is permitted to retire and number otherwise. Ordinarily, in a matter like this an employee who has put in less number of years of service would number be on a better fooling than the employee who has put in longer service. It companyld number have been the intention of the rulemaking authority while framing para 5 of the byelaw to companyfer on such an employee a better and a larger right to retire after giving three months numberice in writing. The words seek retirement in para 5 indicate that the right which is companyferred by it is number the right to retire but a right to ask for retirement. The word seek implies a request by the employee and companyresponding acceptance or permission by HPMC. Therefore, there cannot be automatic retirement or snapping of service relationship on expiry of three months period. In Padubidri Damodar Shenoy vs. Indian Airlines Ltd. Anr. 2009 10 SCC 514, a question arose of voluntary retirement from service which was number acceded to by the companypetent authority by according approval. The matter travelled to this Court. It was held that voluntary retirement did number companye into force. The Court observed There is numberhing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be companymunicated to the petitioner during the period of numberice. True it is that numberice of three months for voluntary retirement given by an employee companyered by Clause b remains valid even if numbercommunication is received within the numberice period but it becomes effective only on its approval by the companypetent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a numberice of voluntary retirement under Regulation 12 b on 3092005. The numberice period was to expire on 31122005. It is an admitted position that the companypetent authority neither gave an approval number indicated disapproval to the appellant within the numberice period of three months. The employee never treated that there has been cessation of employment on the expiry of three months numberice period inasmuch as he companytinued to attend his duties after 31 122005 until 3062006. It is only by his letter dated 86 2006 that the appellant requested the respondent to relieve him in terms of his numberice dated 3092005 by 3062006 and he stopped attending work from 172006. The letter dated 8 62006 does number make any material difference as the fact of the matter is that after the expiry of the numberice period, the appellant companytinued to attend his duties for many months thereafter. By the letter dated 1592006 the respondent companymunicated to the appellant that his application for voluntary retirement under Service Regulation 12 b has number been acceded to by the companypetent authority. Since the numberice for voluntary retirement by an employee who has number attained 55 years but has companypleted 20 years of companytinuous service, under the proviso appended to Regulation 12 b , is subject to approval by the companypetent authority and that approval was number granted, the voluntary retirement of the appellant never came into effect. In C.V. Francis vs. Union of India Ors. 2013 14 SCC 486, this Court observed that it would depend upon the language used in the rule whether numberice for voluntary retirement would companye into effect automatically. There has to be a stipulation in the scheme providing that even without acceptance of his application, it would be deemed that the application for voluntary retirement had been accepted. There is numbersuch provision in the rules in question. In C.V. Francis supra , this Court observed It is wellestablished that a voluntary retirement scheme introduced by a companypany, does number entitle an employee as a matter of right to the benefits of the Scheme. Whether an employee should be allowed to retire in terms of the scheme is a decision which can only be taken by the employer companypany, except in cases where the scheme itself provides for retirement to take effect when the numberice period companyes to an end. A voluntary retirement scheme introduced by a companypany is essentially a part of the companypanys desire to weed out the deadwood. The petitioners companytention that his application for voluntary retirement came into effect on the expiry of the period of numberice given by him must fail, since there was numbersuch stipulation in the scheme that even without acceptance of his application it would be deemed that the petitioners voluntary retirement application had been accepted. Once that is number accepted, the entire case of the petitioner falls to the ground. The decision in Tek Chand case 2001 3 SCC 290 will number, therefore, have any application to the facts of this case, particularly when the petitioners application for voluntary retirement had number been accepted and he had been asked to rejoin his services. The petitioner was fully aware of this position as he companytinued to apply for leave after the numberice period was over. Decision in Tek Chand vs. Dile Ram 2001 3 SCC 290 has been relied upon by the respondents. This Court companysidered Rule 48A 2 of the Central Civil Services Pension Rules, 1972, proviso to said rule companytained a provision where the appointing authority did number refuse to grant the permission for retirement before the expiry of the period specified in the said numberice, the retirement shall become effective from the date of expiry of the said period. The relevant observations are extracted hereunder It is number disputed that the appointing authority did number refuse to grant the permission for retirement before expiry of the period specified in the said application dated 5.12.1994 given by Nikka Ram. Further, numbercommunication whatsoever was made to him within the said period. During the companyrse of the argument before the High Court, the learned companynsel for the parties referred to Rule 48A of the Rules, of companyrse, placing their own interpretation. Since the said Rule is material and has bearing on the question to be determined, it is extracted below 48A. Retirement on companypletion of 20 years qualifying service. 1 At any time after a government servant has companypleted twenty years qualifying service, he may, by giving numberice of number less than three months in writing to the appointing authority, retire from service Provided that this subrule shall number apply to a government servant, including scientist or technical expert who is on assignments under the Indian Technical and Economic Cooperation ITEC Programme of the Ministry of External Affairs and other aid programmes. posted abroad in foreignbased offices of the Ministries Departments. on a specific companytract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of number less than one year. The numberice of voluntary retirement given under subrule 1 shall require acceptance by the appointing authority Provided that where the appointing authority does number refuse to grant the permission for retirement before the expiry of the period specified in the said numberice, the retirement shall become effective from the date of expiry of the said period. It is clear from subrule 2 of the Rule that the appointing authority is required to accept the numberice of voluntary retirement given under subrule 1 . It is open to the appointing authority to refuse also, on whatever grounds available to it, but such refusal has to be before the expiry of the period specified in the numberice. The proviso to subrule 2 is clear and certain in its terms. If the appointing authority does number refuse to grant the permission for retirement before the expiry of the period specified in the said numberice, the retirement sought for becomes effective from the date of expiry of the said period. In this case, admittedly, the appointing authority did number refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the numberice dated 5.12.1994. The learned Senior Counsel for the respondent argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such express acceptance the government servant companytinues to be in service. In support of this submission, he drew our attention to Rule 56 k of Fundamental Rules. He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the numberice and the retirement companyld be effective from the date specified in the numberice. Since the proviso to subrule 2 of Rule 48A is clear in itself and the said Rule 48A is selfcontained, in our opinion, it is unnecessary to look to other provisions, more so in the light of law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the numberice and that the voluntary retirement may become effective from the date specified in the numberice, will lead to anomalous situation. Take a case, if an application for voluntary retirement is accepted few years later from the date specified in the numberice and voluntary retirement becomes operative from the date of expiry of the numberice period itself, what would be the position or status of such a government servant during the period from the date of expiry of the numberice period up to the date of acceptance of the voluntary retirement by the appointing authority? One either companytinues in service or does number companytinue in service. It cannot be both that the voluntary retirement companyld be effective from the date of expiry of the period mentioned in the numberice and still a Government servant companyld companytinue in service till the voluntary retirement is accepted. The proviso to subrule 2 of Rule 48A of the Rules does number admit such situation. In our view, this judgment fully supports the companytention urged on behalf of the appellant in this regard. In this judgment, it is observed that there are three categories of rules relating to seeking of voluntary retirement after numberice. In the first category, voluntary retirement automatically companyes into force on expiry of numberice period. In the second category also, retirement companyes into force unless an order is passed during numberice period withholding permission to retire and in the third category voluntary retirement does number companye into force unless permission to this effect is granted by the companypetent authority. In such a case, refusal of permission can be companymunicated even after the expiry of the numberice period. It all depends upon the relevant rules. In the case decided, the relevant Rule required acceptance of numberice by appointing authority and the proviso to the Rule further laid down that retirement shall companye into force automatically if the appointing authority did number refuse permission during the numberice period. Refusal was number companymunicated to the respondent during the numberice period and the Court held that voluntary retirement came into force on expiry of the numberice period and subsequent order companyveyed to him that he companyld number be deemed to have voluntary retired had numbereffect. The present case is almost identical to the one decided by this Court in the aforesaid decision. The rule which came up for companysideration was entirely different. There is numberprovision companytained in rule in question in the case at hand like the proviso to Rule 48A 2 referred to above due to which the retirement shall become effective from the date of expiry of period of numberice in case the same was number refused. In our companysidered opinion, under Rule 56 as applicable in the State of Uttar Pradesh, numberice of voluntary retirement does number companye into effect automatically on the expiry of the three months period. Under the rule in question, the appointing authority has to accept the numberice for voluntary retirement or it can be refused on permissible grounds. In our opinion, the Rule 56 c does number fall in the category where there is an absolute right on the employee to seek voluntary retirement. In view of the aforesaid dictum and what is held by this Court, we find that the prayer made to make a reference to a larger Bench, in case this Court does number follow the earlier decision is entirely devoid of merit as on the basis of what has been held by this Court in the earlier decisions, we have arrived at the companyclusion. This Court has authoritatively laid down the law umpteen number of time. Reliance has also been placed on behalf of respondents on the decision in Mahant Dhanmir vs. Madan Mohan, 1987 Supp SCC 528, in which this Court observed that law should number be unsettled unless there are companypelling reasons. There is numberdispute that the said proposition has already been held. There is numberquestion of law unsettling the law but is of its application, which unfortunately appears as against the interests of the respondents in view of language employed in the rule in question. An attempt in vain has been made by the respondents to wriggle out of the clutches of the various decisions by raising the aforesaid argument. It was also urged that the Rule 56 c does number require the employee to give reasons for voluntary retirement. No doubt under Rule 56 c there is numberrequirement for an employee to give any reason, however, while companysidering the prayer, the appointing authority has to keep in mind the public interest as provided in the Explanation attached to F.R. 56. Learned companynsel also urged that outside the proviso to Rule 56 d , there is numbergeneral right of appointing authority to reject the numberice of voluntary retirement of an employee on the ground of public interest. For this purpose, threefold submission has been made. Firstly, that the principle of liberty under the Constitution and specifically Part III of the Constitution requires that any restriction on freedom and liberty must have the sanction of the law and that law must be just, fair and reasonable. Presently, there is numberlaw as enacted under Article 309 of the Constitution. Secondly, the right of Government employee and that of the Government are delineated in terms of Fundamental Rules governing State Government employees. Thus, if any Fundamental Rules do number restrict the general liberty of an employee or do number empower the employer to act in a certain way, an action otherwise would be impermissible. For this purpose, reliance has been placed on Moti Ram Deka vs. G.M., North East Frontier Railway, 1964 5 SCR 683. It was also submitted that public interest restriction that applies to the State in the case of companypulsory retirement, applies on account of Article 311. The Court observed In this companynection, it is necessary to emphasise that the rulemaking authority companytemplated by Art. 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Art. 311 1 . Art. 311 1 is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, number be legitimate to companytend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Art. 309 so as to make the said right either ineffective or illusory. Once the scope of Art. 311 1 and 2 is duly determined, it must be held that numberRule framed under Art. 309 can trespass on the rights guaranteed by Art. 311. This position is of basic importance and must be borne in mind in dealing with the companytroversy in the present appeals. The reliance placed on Moti Ram Deka supra is of numberavail as it has numberapplication to the instant case as numberright companyferred by Article 311 of the Constitution can be said to have been taken away and service rule dehors of it can provide for the companycept of public interest. There is numberdoubt about it that Rule 56 d provides that where a disciplinary enquiry is pending or companytemplated and in the case of companytemplated disciplinary enquiry, the Government servant shall be informed before the expiry of numberice that it has number been accepted. The proviso to Rule 56 d has numberapplication where a disciplinary enquiry is number companytemplated or pending. When the proviso itself is number applicable, in numbercase it will dilute the provisions of Explanation with respect to exigencies mentioned in clause c of Rule 56. The submission made upon principle of liberty and its curtailment, the law must be just, fair and reasonable can also number be accepted as the Fundamental Rules are statutory rules and have been made by the Governor under section 241 2 b of the Government of India Act,1935 and provisions of rule in question cannot be said to be unfair, unreasonable and oppressive. The companycept of liberty number to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, number second rates. In Jagadish Saran vs. Union of India, 1980 2 SCC 768, the Court observed thus Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for postgraduate or postdoctoral companyrses in specialised subjects. To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of superskilled specialists, number humdrum secondrates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is postgraduate or postdoctoral. The companycept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already paucity of the doctors as observed by the High Court, the system cannot be left without companypetent senior persons and particularly, the High Court has itself observed that doctors are number being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is number that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public are involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement companysidering the public interest. It cannot be said that State has companymitted any illegality or its decision suffers from any vice of arbitrariness. The decision of the Government cater to the needs of the human life and carry the objectives of public interest. The respondents are claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavour under Article 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrined under Article 51 A which require observance. The right under Article 19 1 g is subject to the interest of the general public and once service has been joined, the right can only be exercised as per rules and number otherwise. Such companyditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of the rule in question cannot be said to be against the Constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance with rules and when there is a requirement of the services of an employee, the appointing authority may exercise its right number to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and numberdoctor would be left in the Government hospitals, which would be against the companycept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is a provision in Rule 56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the companyresponding obligation to serve in dire need. It was urged that in the State of Tamil Nadu, Government has amended the rules number to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules. In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and havenots otherwise there is the companymercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does number want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and companymercialisation of the numberle medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per rules and cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without companysidering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its companyclusion. The High Court ought to have rejected and number to allow the prayer of voluntary retirement made by the doctors. It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have number given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to companysider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can companytinue in services unfettered by such ailments. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we companysider Article 51A companytaining Fundamental Duties, it is a duty of every citizen under Article 51A g to have companypassion for living creatures and to have humanism is also companytemplated under Article 51A h and to strive towards excellence in all spheres of individual and companylective activity so that the nation companystantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four companyners of law as it has to be living organism and has to live up to the essence and spirit of companystitution and cannot ignore and overlook needs of poorest strata of the society. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the Stateowned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, numberground of equality can be claimed and the doctors of different services form different class, apart from that there is numberconcept of negative equality that too against the public interest. In case, such a plea is allowed, numbere may be left to serve public at large. There are several decisions of the High Court, namely, Dr. Anil Dewan vs. State of Punjab, ILR 1 Punjab Haryana 46 State of Punjab vs. Dr. Harbir Singh Dhillon, 2010 SCC Online PH 6159 and Dr. Kalpana Singh vs. State of Rajasthan, 2014 SCC Online Raj 6253, were cited to show that the decision in Dinesh Chandra Sangma supra had been followed. We have companysidered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be companysidered in the light of the provisions which came up for companysideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana supra . It was also companytended that the State of Uttar Pradesh may amend rules, in our opinion there is numbersuch necessity in view of the Explanation the State has already amended its rules so as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane. The submission was also made with respect to the imposition of moratorium period of one year on retirement and that there should be the recruitment of the doctors and thereafter acceptance of voluntary retirement by the State.
SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal has been preferred by the appellants against the judgment and order dated 30th April, 2002 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.1485 of 1984. By the impugned judgment, the High Court allowed the writ petition filed by respondent number.5 and 6 and held as follows The building permits granted by Nagpur Municipal Corporation to the land belonging to respondent No.4-Gorakshan Sabha, a Public Trust are unauthorized and illegal and hence buildings put up pursuant to such building permits are liable to be demolished The parties may make fresh applications seeking building permits within one month from the date of judgment in accordance with revised sanctioned development plan of 2000-2001 and the Planning Authority shall dispose of such applications within four months. The Planning Authority shall demolish the said structures if they were found number in companyformity with the revised sanctioned plan of 2000-2001. The factual matrix of the case is as follows 2.1 One Shri Dhondiba Diwadkar gifted land bearing Survey No. 471, admeasuring 18.25 acres situated at Mouza Lendhra, Tahsil, District Nagpur to respondent No. 4 - Gorakshan Sabha, a Public Trust. The said land was on the outskirts of Town of Nagpur and with the passage of time is number within the Municipal limits of City of Nagpur. 2.2 In the year 1936, the Nagpur Improvement Trust Act For short, 1936 Act was enacted with a view to make provisions for the improvement and expansion of the then town of Nagpur. Under the 1936 Act a Trust namely Nagpur Improvement Trust hereinafter referred to as N.I.T for short was companystituted and N.I.T was empowered to frame various improvement schemes specified u s 27 of the 1936 Act for any area and on such scheme being sanctioned by the State Government, the N.I.T. was to implement the scheme, if necessary by acquiring the land as companytemplated under the 1936 Act. 2.3 With the gradual development of Town of Nagpur into the City of Nagpur, the city of Nagpur Corporation Act, 1948 for short, the Corporation Act was enacted with a view to make special legislative provisions to companysolidate and amend the law relating to the Municipal affairs of the City of Nagpur. Section 2 of the Corporation Act specifically provides that the N.I.T companystituted under the 1936 Act shall in the city of Nagpur companytinue to exercise the powers and perform duties companyferred and imposed under the 1936 Act. Section 3 5 of the Corporation Act provides that all the provisions of 1936 Act shall apply to the city of Nagpur. Section 5 10 of the Corporation Act defines City of Nagpur means the larger urban area specified in the numberification issued under Clause 2 of Article 243 Q of the Constitution of India. With the enactment of the Corporation Act, certain amendments to the 1936 Act were carried out. As a result of amendment to section 1 2 of the Trust Act, the jurisdiction of I.T. was extended to the area companyprised within the limits of the city and to such other area outside these limits as the State Government may declare from time to time by numberification. Section 2 m of 1936 Act which was amended in 1952 provides that all references to anything required to be done under the 1936 Act shall include anything required to be done under the Corporation Act which the N.I.T by virtue of 1936 Act has power to enforce. Thus, both the Nagpur Municipal Corporation N.M.C for short companystituted under the Corporation Act and the N.I.T companystituted under the 1936 Act were entrusted with the responsibility of the orderly development of the city of Nagpur. 2.4 In the year 1966, the State Government enacted the Maharashtra Regional and Town Planning Act, 1966 T.P. Act for short inter alia, with a view to make provisions for planning the development and use of lands in the regions established for that purpose and for the companystitution of Regional Planning Boards thereof for the creation of new towns by the Development Authorities. Section 2 15 of the T.P. Act defines the local authority, to include inter alia, the N.M.C. under the Corporation Act, 1948 and the N.I.T. companystituted under the 1936 Act, which, on being permitted by the State were entitled to exercise the powers of a Planning Authority under the T.P. Act for any area under its jurisdiction. Section 2 19 of the T.P. Act defines Planning Authority, as local authority which includes such other authorities as prescribed under the Act. Under the T.P. Act, it is obligatory on the part of the Planning Authority to survey a region and prepare an existing land-use map and prepare a draft development plan for the area within its jurisdiction in accordance with a regional plan or in such other manner as may be prescribed. Section 22 of the T.P. Act provides that a development plan shall generally indicate the manner in which the use of the land in the area of a Planning Authority shall be regulated, and also indicate the manner in which the development of a plan shall be carried out. It is further provided in Section 22 of the P. Act that the development plan in particular shall provide for proposals for allocating the use of land for the purposes, such as residential, industrial, companymercial, agricultural, recreational and proposals for designation of land for public purpose, such as schools, companyleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment or public assembly, museums, art galleries, religious building and Government and other public buildings as may from time to time be approved by the State Government. The T.P. Act provides for modification of the draft plan on receiving objections and suggestions from the general public. Section 31 of the T.P. Act provides for sanction to the draft development plan by the State Government and on the final development plan companying into force it is binding on the Planning Authority. Section 42 of the T.P. Act provides that on the companying into operation of any plan or plans referred to Chapter III of T.P. Act, it shall be the duty of every Planning Authority to take such steps as may be necessary to carry out the provisions of such plan or plans. Section 43 of the T.P. Act provides restriction on the development of a land after the date on which the declaration of intention to prepare a development plan for area is published in the Official Gazette. Thus, once declaration of intention to prepare draft development for any area or a numberification specifying any undeveloped area as a numberified area, or any area designated as a site for a new town is published in the Official Gazette, numberperson shall change the use of the land or carry out any development of the land without the permission in writing of the Planning Authority except as permitted under proviso appended thereto. 2.5 By a numberification dated 6th October, 1967 the State Government permitted N.I.T. to exercise the powers of a Planning Authority under section 2 15 of the T.P. Act for the entire area under its jurisdiction. 2.6 In accordance with the aforesaid provisions, the N.I.T. on 12th December, 1972 published draft development plan of the city of Nagpur and the same was published in the Government Gazette on 28th December, 1972. After companysidering the objections and suggestions, modifications to the draft development plan were made on 20th October, 1973 and the same were published on 17th January, 1974. Subsequently the draft development plans as further modified by the N.I.T. were forwarded to the State Government for sanction under section 30 1 of the T.P. Act on 23rd October, 1974. The State Government extended the period for sanctioning such plan and ultimately with minor modification the draft development plan was approved by the State Government. Thus, the final development plan for the city of Nagpur, as sanctioned by the State Government, came into force on 3rd June, 1976. It appears that final development plan came into effect from 3rd June, 1976. Both N.M.C and N.I.T were granting development permission in their respective areas and later, Government numbericed the problems created due to the existence of two sets of regulations in the Municipal Corporation Area. For the said reason, Deputy Secretary to the Government, Urban Development Department Mantralaya, Bombay, vide letter dated 1st January, 1993 intimated the Municipal Commissioner, N.M.C, Nagpur about Government decision that draft byelaws published by the N.M.C u s 169 of the T.P. Act read with Section 115 and other sections of the Corporation Act, 1948 will number be operated and the M.C like N.I.T will follow the draft Development Control Rules and Building Byelaws prepared by the N.I.T as submitted to Government on 12th October, 1990 which are under scrutiny of Government until further orders. The aforesaid letter being relevant reads as follows- Confidential No.TPS 2490/1504/CR-101/UD-9 Urban Development Department Mantralaya, Bombay-400 032. Dated 1st January, 1993. To, The Municipal Commissioner, Nagpur Municipal Corporation, Nagpur. Sub Regulation of Building Control Activity and implementation of Development Control Rules and Building Bye-Laws in Nagpur City. Sir, The Nagpur Improvement Trust N.I.T is a planning Authority for the city of Nagpur in terms of the Maharashtra Regional Town Planning Act, 1956. Accordingly if prepared the development plan alongwith building regulations and Development Control Rules were approved by Government vide Notification No.TPS 2476/478/UD-5, dated the 3rd July, 1976. With a view to standing the I.C. rules and building Bye-laws, Government had directed all the Municipal Corporations i.e. the Planning Authorities Nagpur Improvement Trust in this case to undertake modification under Section 37 of the Act and follow standardized Development Control Rules and Building byelaws and has forwarded the proposal for government approval on 12th October, 1990. The Nagpur Municipal Corporation N.M.C has framed the building Byelaws under City of Nagpur Corporation Act, 1948 which were approved by the Government vide numberification No.N.M.C 5365/33770, dated the 24th June, 1965. Subsequently, the Nagpur Municipal Corporation in exercise of the powers companyferred under section 159 of the Maharashtra Regional Town Planning Act, 1966 read with Section 415 and other relevant sections of the City of Nagpur Corporation Act, 1948 published draft revised byelaws. Those byelaws have been sent to Government for approval vide letter No.GAD/18/G, dated 24th February, 1987 and they are yet to be approved. Both the Nagpur Municipal Corporation and Nagpur Improvement Trust are granting Development permission in their respective areas. Thus there has been numberuniformity in the matter of the number eligible There have been two sets of regulations operated in the Municipal Corporation area and has been admittedly creating certain serious problems. Government has examined the matter and after careful examination is pleased to issue directions under section 154 of the Maharashtra Regional Town Planning Act, 1956 as follows Pending the approval of Government for the proposal of Development Control Rules and Building Byelaws submitted by the Nagpur Improvement Trust vide its letter No.D/630, dated 12th October, 1990. The draft Byelaws published by the Nagpur Municipal Corporation under section 169 of the Maharashtra Regional Town Planning Act, 1956 read with Section 115 and other sections of the City of Nagpur Corporation Act 1948 will number be operated. ii The Nagpur Municipal Corporation like Nagpur Improvement Trust should follow the provisions in the draft Development Control Rules and Building Byelaws prepared by the Nagpur Improvement Trust as submitted to Government on 12th October, 1990 which are under scrutiny of Government until further orders. The action taken may please be intimated to government. Yours faithfully, S.Pentabalekungri Deputy Secretary to Government Between 1973 and 1983 lands were leased to the appellants by respondent number4 and building plans were sanctioned by the N.M.C. The N.M.C was empowered to issue NOC during the said period as evident from letter dated 15th September, 1981 written by Circle Engineer P1 , N.I.T to Shri Padmakar Joshi and brothers, Sitabuldi, Nagpur as quoted below OFFICE OF THE NAGPUR IMPROVEMENT TRUST No.Sch NOC/2017 Nagpur, dated the 15.9.1981. To Shri Padmakar Joshi Bros. Sitabuldi, Nagpur. Subject-No Objection Certificate for Petrol Pump. Reference-Your application dated 29.6.1981. With reference to above, I have to inform that the Nagpur Municipal Corporation is empowered to issue numberobjection certificate in companyformity with proposals of Development Plan of Nagpur. You may, therefore, approach Nagpur Municipal Corporation, Nagpur in this matter. Sd - Circle Engineer P1 Nagpur Improvement Trust. From the aforesaid letter, it is clear that inspite of draft Development Plan which was published on 25th December, 1972 followed by final Draft Plan on 3rd June, 1976, the N.I.T abdicated its authority and delegated it in favour of N.M.C by stating that N.M.C is empowered to issue NOC in companyformity with proposals of Development Plan of Nagpur. Respondent number.5 and 6 preferred a Public Interest Litigation under Article 226 of the Constitution of India before the Bombay High Court Bench at Nagpur inter alia, seeking a direction to N.M.C and N.I.T to remove the structures standing on the lands owned by respondent number4-Trust on the ground that the same are companytrary to the building regulations and the development plan sanctioned by the State Government under the T.P. Act. In the said writ petition, the impugned judgment was passed on 30th April, 2002 as numbericed in the opening paragraph. Learned companynsel for the appellants while referring to the facts, as narrated above, submitted that the writ petition was filed by respondent number5 after inordinate delay to vent out their personal vendetta. The said writ petition cannot be termed to be Public Interest Litigation as respondent number.5 and 6 vented out their private dispute. Learned companynsel for the appellants further submitted that the said writ petition was primarily filed by respondent number5 claiming to be a member of respondent number4- Trust and respondent number6 a member of the locality alleging mismanagement by the said Trust in leasing lands to the appellants. Apart from the aforesaid fact the respondent number.5 and 6 did number disclose the nature of public interest involved. A personal grudge of respondent number5 is clear as he was claiming to be a member of the Trust which was number accepted by the Trust. It was further submitted that the writ petitioners having number approached the Court with clean hands and it being a private dispute between respondent number5 and Trust the said writ petition was number maintainable. It is further companytended that in absence of challenge to the sanctioned layout the High Court ought number to have declared them unauthorized and illegal. Learned companynsel for the parties relied upon Section 2 15 c ii iii , Section 2 19 , 20 and 154 of the T.P. Act. Reliance was also placed on final Development Plan dated 3rd June, 1976 sanctioned by the State Government. A photocopy of True companyy of Resolution dated 3rd June, 1976 enclosing companyy of the numberification issued under the letter head of N.I.T alongwith part Development Plan of Nagpur City was also produced separately for perusal. Respondent number.5 and 6 have taken similar pleas as were taken before the High Court. Counsel for respondent number4 also supported the case of respondent number.5 and 6. We have heard the rival companytentions raised by the parties and perused the record. It is number in dispute that the respondent number4-Trust has leased the property in favour of the appellants. Respondent number5 was claiming to be a member of the Trust and Respondent number6 claims to be a member of the locality and as numbericed above they filed the writ petition before the High Court alleging mismanagement by the Trust in leasing lands to the appellants. But what we find is that the respondent number4-Trust is number supporting respondent number.5 and 6. The aforesaid fact clearly shows that writ petition filed by respondent number.5 and 6 was number bona fide but it was filed only on account of personal disputes between the parties i.e. inter se between the members of the respondent number4-Trust indirectly affecting the appellants-tenants. Respondent number4-Trust in its reply before the High Court supported the appellants but before this Court their learned companynsel supported the case of respondent number.5 and 6. There is numberdispute that numbersuch numberification was issued by the State Government empowering the N.M.C to exercise the power of Planning Authority. By letter dated 1st January, 1993, the State Government asked the N.M.C to follow the draft development Rules framed by the N.I.T there being companyflict between two draft Rules one drafted by the N.M.C and another by N.I.T. The State Government on 27th February, 2002 has rescinded withdrawn the numberification dated 6th October, 1967 and permitted M.C to exercise the powers of a Planning Authority in the area under its jurisdiction except the areas in which the N.I.T has improvement schemes as more particularly set out in the said numberification. Thus, prior to 1967 M.C was the authority to exercise the same power sanctioning the plan and since 27th February, 2002 the N.M.C was again empowered to sanction the plan. During the period from 1967 till 2002, though N.I.T was the Planning Authority for the city of Nagpur, it abdicated its power, delegated it in favour of N.M.C and did number sanction any building plan which is also clear from letter dated 15th September, 1981 issued by N.I.T to one Shri Padmakar Joshi Bros., Sitabuldi, Nagpur as quoted above. True companyies of numberification dated 3rd June, 1976 and Part Development Plan of Nagpur City have been produced wherein respondent number4-Gorakshan Sabha has been shown within the area of public institutions and offices. In absence of original companyoured plan the true companyy of the plan cannot be relied upon to hold any companystruction illegal in view of the fact that the M.C which sanctioned building plan supposed to have gone through the original plan.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 204/1956. Appeal from the judgment and decree dated February 23, 1951, of the Madras High Court in O. S. Appeal No. 13/1948. Keshva Aiyangar and M. S. K. Aiyangar, for the appellant. V. Viswanatha Sastri and Naunit Lal, for .respondent No. 1. K. B. Naidu, for respondent No. 6. 1961. January 27. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal arises out of a suit filed by the respondent M. Raghava Mudaliar who claims to be the reversioner of Madhava Ramanuja Mudaliar. In his suit the respondent alleges that after the death of Madhava Ramanuja Mudaliar which took place on March 22, 1893, his property came into the possession of his widow Manickammal. Subsequently the said Manickammal and Rengammal, the widowed mother of the deceased Madhava Ramanuja Mudaliar alienated the properties without any legal necessity. According to the respondent the said alienation was number binding on him and so he was entitled to recover possession of the said property free of any encumbrance or charge. Manickammal died on October 18, 1941, whereas Rengammal died in June, 1921. On the death of the widow Manickammal reversion fell open and that has given a cause of action to the respondent for his present suit. Madhava Ramanuja Mudaliar died issueless and was survived by his widow, his widowed mother, his sister Andalammal and the respondent and his sister Apurupammal who are the children of Ammakannu Ammal the second sister of Madhava Ramanuja Mudaliar, and Ethirajammal the daughter of the third sister of Madhava Ramanuja Mudaliar. To his suit the respondent impleaded the appellant Andalammal, Krishnasami Mudaliar, son of the said Apurupammal defendant 1 and Susila Bai Ammal daughter of Ethirajammal as defendants 2 to 4. The Udayavar Temple by the sole trustee Bysani Krishnaiah Chetty was joined as defendant 5. After her husbands death Manickammal obtained letters of administration to his estate from the High Court at Madras. It appears that the relations of the widow with her motherin-law were embittered, and that led to disputes between them. These disputes were settled by the two widows in pursuance of the advice of certain arbitrators who mediated between them. The settlement thus reached was recorded in writing on May 27, 1893 Ex. D-2 . It would be relevent to refer to the main terms of the settlement at this stage. This settlement set out the properties companyered by it as Serial Nos. 1 to 5. Item No. 1 which was a house in three blocks was divided between the respondent and his sister Apurupammal who were to take one share Ethirajammal who was to take another share and Andalammal who was to take the third share. House No. 62, which, was Serial No. 2, and houses and shops Nos. 126 and 127 which were shown as Serial No. 3 were agreed to be sold, and it was settled that out of the sale proceeds the debts of the deceased Madhava Ramanuja Mudaliar and his father should be discharged expenses incurred in obtaining the letters of administration should then be deducted along with the expenses of sale, and the balance should be divided equally between the two widows subject to a payment of Rs. 1,000/- to the mother-in-law in lieu of her jewels. The two cawnies of lands which were Serial No. 4 were agreed to be given to the maternal uncle of the deceases Madhava Ramanuja Mudaliar, whereas the moveables which were shown as Serial No. 5 had to be divided half and half between the two widows. This document companytained a clause which provided that in case any one of us companytravenes the terms the other party shall number only cancel this agreement but his title to the estate of Madhava Ramanuja Mudaliar prior to the agreement shall in numberway be affected subject to. which this agreement has been entered into. The document thus executed was attested by four attesting witnesses. It appears that soon after this agreement was finalised, Krishnasamy Mudaliar, defendant 3, objected to its validity and disputed the right of the widows to deal with the property in the manner specified in it. He was, however, persuaded to abandon his objections. and a sale deed was executed by him companyveying his reversionary rights to the two widows for companysideration on September 10, 1894. By this document defendant 3 purported to recognise and grant an absolute title to the two widows in regard to the estate of the deceased Ex. D-3 . Subsequent to this document the two widows began to enjoy the properties as agreed between them. On February 4, 1895 the two widows sold item No. 1 in Schedule 11 attached to the plaint, i.e., Nos. 126 and 127, Anna Pillai Street and Audiappa Naick Street respectively to Thatha Venkata Raghava Subbu Chetty. The appellant is the successor in title of the said division in respect of the said item No. 1 in Schedule II. In the present appeal we are companycerned only with this item. On May 27, 1895, a companyposite deed of partition and administration of property of the deceased was executed by and between the two widows Ex. D-5 . By this document the three blocks in the house shown as Serial No. 1 in Ex. D-2 were delivered into the possession of the respective donees. The maternal uncle of the deceased was given two cawnies of lands as therein stipulated and the debts of the deceased were discharged and expenses incurred in respect of the letters of administration were met. It is under these circumstances that the respondent filed his present Suit No. 56 of 1946 on the Original Side of the Madras High Court. and he claimed that the alienations made by the two widows were number binding on him and he was entitled to the possession of the property left by the deceased Madhava Ramanuja. The schedule attached to the plaint referred to four items of property, and as we have already pointed out it is only with item No. 1 out of these four items with which we are companycerned in the present appeal. In regard to the said item the appellant urged that the agreement between the two widows Ex. D-2 and the subsequent companyposite deed executed in pursuance of it Ex. D-5 were in the nature of a family arrangement, and as such they were binding on the respondent. In was also alleged by the appellant that the respondent had received benefit under the said arrangement and by his companyduct had ratified it. The appellant further pleaded that the transfer in favour of his predecessor was supported by legal necessity. Incidentally a plea of surrender was also raised by the appellant. Mr. Justice Kunhiraman, who tried the suit, held that there was a family arrangement which bound the respondent. He also observed that the respondent had received benefit under the said arrangement and was therefore precluded from challenging its validity. The learned Judge incidentally made some observations which showed that he was inclined to uphold the plea of surrender raised by the appellant. In the result the respondents suit was dismissed. The respondent then took the matter in appeal and succeeded. The appeal companyrt held that the impugned arrangement cannot be said to be a bona fide family settlement which would bind the respondent. Before the appeal companyrt it was companyceded that the plea of surrender raised by the appellant companyld number be sustained, and that the companytention that the respondent was bound by the family arrangement companyld number also be sustained. It was, however, urged on behalf of the appellant that the respondents companyduct precluded him from disputing the validity of the arrangement but this argument was rejected by the appeal companyrt likewise, the companytentions that the transfer in favour of the appellants predecessor was justified by legal necessity also failed. As a result of these findings the respondents appeal was allowed, the decree passed by the trial companyrt was set aside, and the claim for possession made by the respondent was decreed. The respondents suit was accordingly directed to go before the Official Referee for ascertainment of mesne profits claimed by him. It is against this decree that the appellant has companye to this Court in appeal. The principal point which has been urged before us by Mt R. Keshav Aiyangar on behalf of the appellant is that in substance the respondent has ratified the impugned transaction, has received benefit under it, and by his companyduct has affirmed it, and so it is number open to him to challenge its validity and binding character. In support of this argument he has canvassed for our acceptance the proposition that if a person with full knowledge of his rights assents to a transaction which may otherwise be voidable at his instance and takes benefit under it, he is subsequently precluded from disputing its validity. In support of this argument he has relied on a decision of this Court in Sahu Madho Das v. Pandit Mukand Ram 1 . In that case this Court has held that it is settled law that an alienation by a widow in exercise of her powers is number altogether void but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding. This Court also observed that it is a principle of general application underlying many branches of the law that a person who with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected number to exercise his right to avoid it, cannot go back on that election and avoid it at a later stage having made his election he is bound by it. The argument is that though the respondent may number be a party to the impugned transaction, if by his companyduct it can be said that he has elected to uphold it and has received benefit under it he cannot be allowed to go back upon the election. There is of companyrse numberdoubt about the companyrectness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that case. That is why it is necessary to refer very briefly to the findings of fact on which the decision in Sahu 1 1955 2 S.CR. 22, Madho Dass case 1 rests. In that case this Court companysidered the question as to whether the plaintiff Mukand Ram had assented to the impugned family arrangement, and observed that as he was number a party to the arrangement his assent to the arrangement itself and number to something else must be clearly established, and also his knowledge of the facts. Then, having thus posed the question the material evidence was examined, and it. was-held that the cumulative effect of the said evidence led to the reasonable inference that the plaintiffs assent was to the very arrangement itself, and his companyduct as well as the companyduct of his brother Kanhaiya Lal was companysistent only with that hypothesis in other words, the examination of the material evidence justified the inference that Mukand Ram had in fact elected to assent to the transaction and had received benefit under it, and so the doctrine of election or ratification precluded him from disputing the validity of the said transaction. It is, however, significant that dealing with the case of the minor sons, who were number parties either personally or through their guardians, and who did number claim title either through Pato or her daughters, this Court expressly observed that so far as they were companycerned what they received were gifts pure and simple and the only assent that companyld be inferred from the mere acceptance of the gifts and numberhing more would be assent to that particular gift and number assent to the gifts similarly made to others. This observation brings out in bold relief by companytrast the relevant findings in the light of which the plaintiff was held precluded from disputing the validity of the impugned transaction. The appellant has also relied on another decision of this Court in Dhiyan Singh v. Jugal Kishore 2 . In that case it was held that even if the impugned award was invalid the plaintiff who disputed its validity was barred from making that claim by reason of estoppel. Brijlal against whom the plea of estoppel was effectively raised appeared to have made a claim to the estate in question in 1884 when the impugned 1 1955 a S.C.R. 22. 2 1952 S.C.R. 478. transaction took place,, and it was as a result of this claim that settlement was reached and the impugned transaction effected. This Court held that even if the award which was challenged was invalid Brijlal by his companyduct had precluded himself from raising the companytention against the validity of the award. In , companying to this companyclusion this Court observed that, the case before it was very similar to the one which the Privy Council had decided in Kanhai Lal v. Brij Lal 1 . When we turn to the Privy Council decision itself we find that Kanhai Lal, who was held by the Privy Council to be precluded from challenging the arrangement to which he was a party, had set up a title in himself on the strength of an alleged adoption, and when, having regard to the said title, a settlement was reached and a companypromise arrangement was made, it was held by the Privy Council that the doctrine of estoppel came into play. Kanhai Lal, who subsequently became a reversioner according to the Privy Council, was bound by the previous arrangement and cannot number claim as a reversioner. These two decisions also emphasise, the fact that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settlers his claim as well as the claim of his opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open. There are two other decisions of the Privy Council to which reference may be made. In Rangaswami Gounden v. Nachiappa Gounden 2 the Privy Council had to deal mainly with the question of surrender, its theory and its essential features. Incidentally it had also to deal with the case of reversioner who had taken from an alienee from a Hindu widow a mortgage of a property which included a part of the property alienated, and the question raised was whether by reason of the fact that the reversioner had a mortgage of the said property he was precluded from challenging the validity of the said alienation and the Privy Council held that he was number so precluded. In dealing with this aspect of the question the Privy Council 1 1919 L.R. 45 I.A. 118. 2 1918 L.R. 40 I.A. 72. observed that it is well-settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alienation at its inception, he need number do so, but is entitled to wait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption The Privy Council then examined the nature of the mortgage, the properties included in it, and observed that the said mortgage companysisted of 2/14ths of the mitta which had companye to the mortgagors in right of their own succession, and the remaining share had companye to them through the impugned deed of gift. Then it was observed that at the time of the mortgage the mortgagee did number know whether he would ever be such a reversioner in fact as would give him a practical interest to quarrel with the deed of gift and the Privy Council asked why should he number take all that the mortgagers companyld give or propose to give. To hold that by doing so , observed the Privy Council, he barred himself from asserting his own title to a part of what was mortgaged seems to their Lordships a quite unwarrantable proposition. This decision shows that the principle of election or estoppel or ratification must be applied with due circumspection and the mere fact that the reversioner has received some benefit under the transaction or has number challenged the validity of the transaction when it took place cannot bar his rights as a reversioner when reversion in his favour falls open. The last case on which reliance has been placed by the appellant is the decision of the Privy Council in Ramgouda Annagouda v. Bhausaheb 1 . In this case the widow of the last male holder had alienated nearly the whole of the property of her husband by three deeds executed and registered on the same day. One of the deeds was in favour of a presumptive reversioner. The Privy Council held that the three deeds had to be regarded as forming one transaction entered into by all the persons interested in the properties, and that after the reversion fell open, the reversioners who were parties to the said transactions 1 1927 L.R. 54 I.A. 396. were precluded from disputing the two alienations by reason of their companyduct. According to the Privy Council the three deeds in question were inseparably companynected together and in that view Annagouda, the reversioner, who challenged two of the three transactions, number only companysented to the sale to Shivgouda and the gift to Basappa-which were the two transactions impeached-but these dispositions formed part of the same transaction by which he himself acquired a part of the estate. Thus it may be taken to be well-settled that if a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner. The doctrine of ratification may also be invoked against a presumptive reversioner who, though number a party to the transaction, subsequently ratifies it with full knowledge of his rights by assenting to it and taking benefit under it. It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would number preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner. It must always be a question of fact as to whether the companyduct of the said reversioner on which the plea of ratification is based does in law amount to ratification properly so-called. It is in the light of these principles that we must number companysider the relevant facts in the present appeal. There can be numberdoubt that the transaction which took place on May 27, 1893, as a result of the dispute between the two widows and with the intervention of the well-wishers of the family is number a family arrangement as understood under Hindu Law. This position was companyceded before the High Court and is number disputed before us Ex. D-2 . Similarly, the sale deed which was executed by defendant 3 in favour of the two widows is of numberassistance because it was obviously a sale by defendant 3 of his reversionary rights which were then numberbetter than spes suwessionis and as such this transaction Ex. D-3 cannot help to validate the earlier arrangement between the two widows. The companyposite document Ex. D-5 of May 27, 1895, is in substance numbermore than an alienation numberdoubt executed for the purpose of carrying out the original arrangement between the two widows. Thus in dealing with the question as to whether the respondent is precluded from challenging the validity of the impugned transaction it is necessary to bear in mind that the original transaction is number a transaction in the nature of a family arrangement. Besides, he was then a minor and admittedly he was number a party to any of the said transactions. It is, however, urged that the respondent obtained a certificate or a patta from the Collector in regard to the property companyveyed to him under Ex. D-5, and the argument is that he has deliberately withheld the said patta because he apprehended that if produced the patta would go against him. The explanation given by the respondent for number producing the patta is attacked as unsatisfactory, and it is urged that the said explanation cannot possibly companyceal his intention to keep back the document from the Court. In his cross-examination the respondent stated that the Collectors certificate which had been given to him by his grandmother had been filed by him in Suit No. 495 of 1916 in the City Civil Court, and he added that his advocate in the said suit had number returned the document to him. We may assume that the respondent has number produced the document though it was in his possession but we have on the record two documents which were issued to the other donees, and all that the appellant is entitled to assume is that a similar document had been issued in favour of the respondent. In our opinion, the two documents on the record do number assist the appellants argument that any representation had been made by the respondent to the Collector before he obtained a patta in his favour. In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed Ex. D-5 . On the registration of the said document persons who got certain immoveable properties under it were given the certificates by the Collector in ordinary companyrse, and so numberargument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of sale. It is then urged that in Civil Suit No. 495 of 1916 filed in the City Civil Court at Madras by Apurupammal against tile respondent and another, the respondent filed the written statement in which he admitted the validity of the impugned transaction. It appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in companysequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a companypromise settlement was arrived at in pursuance of which some transfers were effected. This, it is said, amounts to an admission of the validity of the said transaction Ex. D- 15 . This argument, however, fails to take numberice of the fact that while referring to the said companypromise settlement the respondent had expressly added that the said companypromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar Ex. P-3 . In other words, taking the statement as a whole, as we must, the respondent looked upon the said companypromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and numbermore. In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the ,Lifetime of the widow, and as such he had numberoccasion to challenge its, validity whilst the widow was alive. A somewhat similar argument is based on the companyduct of the respondent in relation to Civil Suit No. 1117 of 1921 filed by Masilamani Mudaly, the sisters son, and the deceased Govinda Mudaliar in the Madras High Court Ex. P.16 . To this suit the respondent was impleaded as defendant 7. In this suit the said plaintiff had challenged the validity of the arrangement, and asked for appropriate injunctions against defendant 6 to the suit, Thuggi Kondiah Chetty, Trustee of Udayavar Koil, and other defendants from dealing with the property to the prejudice of the reversionary right of the plaintiff. It is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed. The only point which is relevant to companysider is that the reversioner had challenged the arrangement in question. The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was number personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment. This suit, however, did number proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for number-prosecution. In our opinion, this argument is far-fetched and cannot possibly sustain the plea of ratification against the respondent. If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see numberjustification for the assumption that he should have carried on Civil Suit No. 11 17 of 1921 or should in fact have challenged the said arrangement at all. The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case. The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them. Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collectors certificate and told him that she was going to die soon and so he may take the house. The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income. The respondent then stated that he was number aware of the document of 1895 until 1916, and that he came to know about the division between the two widows only in 1910. It is urged that this statement should number be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of reifying the whole transaction. In our opinion there is number,substance in this argument. In this companynection it is relevant to remember that until Act II of 1929 was passed a sisters son, like the respondent, would have had very few chances of becoming an actual reversioner he would have companye in the list of bandhus and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner. Besides, the benefit which he obtained under the impugned transaction companyld also in substance have been claimed by him under an earlier arrangement entered into between Govinda Mudaliar and Madhava Ramanuja Mudaliar on February 7, 1887 Ex. D-1 . Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it Exs. D-2 and D-5 . Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does number appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to companyvey absolute titles to the respective donees and transferee under the said transaction. He also companyld number have known about his rights as a possible reversioner. Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ,ratification against the respondent. Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition 1 p. 87 . That leaves the question of legal necessity to be companysidered. The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity and, in our opinion, the finding of the High Court on this point is obviously right. In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she companyld number deal with or transfer the property in question without the requisite sanction. There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her motherin-law to enter into the impugned transaction under the guise of a family arrangement. The document itself Ex. D- 5 does number purport to be justified by legal necessity. In terms it purports to give effect to the original arrangement of 1893 Ex. D-2 and if the said arrangement is number valid as a family arrangement the subsequent transfer would also be invalid. Besides, out of a total companysideration of about Rs. 10,000/- the amount of Rs. 776/- can be taken to represent the debts due by the deceased Mudaliar the rest of the items of companysideration cannot be treated as companystituting a legal necessity at all. The amount of Rs. 558/- was the expense incurred for executing the document similarly the amount of Rs. 409/representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity. The other items of companysideration do 1 1918 L.R. 46 I.A. 72. number even purport to be for legal necessity. Therefore, in our opinion, the companyclusion is inescapable that the impugned transfer is number justified by legal necessity.
Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Patna High Court directing reversal of the judgment of acquittal recorded by learned Third Additional Sessions Judge, Munger. All the accused persons were acquitted by the aforesaid judgment. However one of accused respondent i.e. Kirat Yadav before the High Court died during the pendency of the appeal. A Criminal Revision was also filed by the informant-Lalitdeo Prasad and the said revision was taken along with the States appeal. Prosecution version as unfolded during trial is as follows As per the fard beyan of Lalitdeo Prasad Singh, on 31st July, 1982 at about 8 A.M. informant alongwith several other persons, namely, Rameshwar Mistry, Kailash Singh, Brahmdeo Singh, the Govt. Amin Omar Ali , Biranchi Das, Challitar Singh, Jalim Singh, the wife of Rameshwar Mistry, Bilo Mistry, Shiv Das, Kedar Das Rajendra Mistry, Manikant Mishra and 5 to 6 others proceeded from Sirjua Ghat to the Diara across the Ganges river into the boat of Rameshwar Mistry. When this companytingent of the informants party anchored into the Diar side of the river for some persons from the boat came out and proceeded to same distance, some criminals also alighted from small boat from the eastern and western side and asked these persons to stop. When these persons who had alighted from the boat of the informant, did number stop, there was firing from the side of the criminals which hit Manikant Mishra P.W.1 . The criminals caught hold of Rajendra Mistry, Rameshwar Mistry, Brahmdeo Singh all three deceased persons and brought them near the boat of the informant. On the boat of the informant, still sitting were Kailash Singh, Biranchi Das, Challitra Singh, Shiv Das and the Government Amin. Near the boat, Rajendra Mistry was shot at by Kirat Yadav by rifle. Rameshwar Mistry was also shot at by Ranvir Yadav. Khantar Sao shot dead Bramhdeo Singh. Ranvir Yadav assaulted the Amin with rifle. Rajendra Mistry, Rameshwar , Mistry and Brahmdeo Singh succumbed to their fire-arm injuries at the spot. The dead bodies of these three deceased persons were loaded on the informants boat. Thereafter the boat of the informant was occupied by some of the criminals and other criminals boarded a small fisher mans boat and carried the informants boat inside the river towards east, beheaded the dead bodies at the order of Ranvir Yadav and also slit open the stomach of the dead bodies and thereafter threw the cut parts of the dead body into the river. On the way inside the river, Kailash Singh was also shot dead by Ranvir Yadav as a lesson on the ground that Kailash had filed certain criminal case against the assailants. The informant and the other persons left inside the boat were also threatened of dire companysequences, if they disclosed the matter to the police. The informant and three others were brought to the bank of the river and made to disembark from the boat. The Amin was still carried further into the river. The informant came to Sirjua ghat. The cause of occurrence as given in the far beyan, is that Ranvir Yadav had taken possession of several lands of Sirjua Village and the villagers wanted their lands to be measured and demarcated and so being angered at this step of the villagers, the accused persons companymitted the aforesaid occurrence. The defence of the accused persons was that the police was inimical to the main accused Ranvir Yadav whose father, late Hariballabh Yadav, was killed by A.S.P. and in this companynection a case was filed by the servant of Ranvir Yadav. Kanta Sao and Kirat Yadav were employees of Ranvir Yadav and therefore they were implicated falsely in the instant case. The police was pressing the accused persons hard to withdraw the case of murder filed against the police officials. Twelve witnesses were examined to further the provision version. Several documents were exhibited. The trial Court held that the prosecution version lacks credibility and, therefore, directed acquittal. On appeal the High Court held that there was improper analysis of the evidence and accordingly held that the acquittal was number proper. Therefore the accused Ranvir Yadav i.e. present appellant and Khantar Sao was sentenced to undergo imprisonment for life for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC . The appeal in respect of accused Mithu Yadav was dismissed. The position is that out of four accused persons one had died during trial and the acquittal of one was maintained by the High Court and one had also number filed an appeal as it was stated that he had also died. The present appeal relates to accused Ranbir Yadav. Though various points were urged in respect of the appeal, the primary stand was that incriminating materials were number put to him in examination under Section 313 of the Code of Criminal Procedure, 1973 in short the Code . Learned companynsel for the respondent-State on the other hand submitted that the accused is a history sheeter, has a long criminal record and therefore there is numberscope for interference in this appeal. According to him all the relevant questions were put during examination under Section 313 of the Code. The purpose of Section 313 of the Code is set out in its opening wordsfor the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. In Hate Singh, Bhagat Singh v. State of Madhya Pradesh AIR 1953 SC 468 it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code are among the most important matters to be companysidered at the trial. It was pointed out that the statements of the accused recorded by the companymitting magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly companysidered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be companysidered in the same way as if Section 315 is number there. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into companysideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. The word generally in sub-section 1 b does number limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be companyched in a form which an ignorant or illiterate person will be able to appreciate and understand. A companyviction based on the accuseds failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is number sufficient companypliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and companyched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is number illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or companyfused, can readily appreciate and understand. In order to appreciate the stand relating to number putting the relevant questions during the examination under Section 313 of the Code, the factual scenario needs to be numbered. The examination under Section 313 of the Code the same reads as follows It is stated on the basis of statement of witnesses that on 31.7.1982 at around 8.30 A.M. Rameshwar Mistry was killed in Sirjua Diara by firing shot from rifle? What do you have to say about it? Ans. No, I was falsely implicated. It is also stated that accused kept the dead body of Rameshwar Mistry, Rajendra Mistry and Bramhadeo Singh on boat and they took Lalit Narayan Singh Kailash Singh, Chalitar Singh, Anil Sahib and Biranchi Das on the boat and killed Kailash Singh by proceeding further and threw the dead body in river by cutting it what do you have to say? Ans. Police has implicated me. Safi Alam, S.P. of Khagaria companymitted murder on 15 April, 1980 in the evening by firing shot. My servant has filed case on him. My uncle th filed case on police S.D.O. from that day, he started implicating me in the case and started saying me to withdrew the case. The police which companyes, states the same thing. I was number allowed to study at that time. I was studying. Due to this reason, I was falsely implicated. I heard the statement of witnesses. Do you have to say anything in defence? I write it later on. It is also evident that you fired shot from the rifle at the arm of Amin. It is true as companytented by learned companynsel for the appellant that numberincriminating materials were put to the accused under Section 313 of the Code. There is numberaccusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as the question No.3 is companycerned same relates to PW 10. He did number say that he had seen gun fired by the appellant. Above being the position the appeal deserves to be allowed. It is a matter of regret and companycern that the trial companyrt did number indicate the incriminating material to the accused. Section 313 of the Code is number an empty formality. There is a purpose behind examination under Section 313 of the Code.
The Judgment of the Court was delivered by MOHAN, J.- The appellant along with one Dr Ramesh Kumar was sentenced to 3 1/2 years rigorous imprisonment with fine of Rs 1,000 each under Sections 376/511 of the Indian Penal Code and in default of payment of fine the defaulter was to undergo rigorous imprisonment for a period of three months. The companyviction and sentence imposed by the learned Sessions judge of Namaul was unsuccessfully appealed against before the High Court in Criminal Appeal No. 464/SB of 1988. The present appeal is directed against the said companyviction and sentence by Nathu Ram, accused 2 appellant herein . The prosecution case is as follows. On January 11, 1986 Mansa Ram PW 8 made an application to the chief Minister of Haryana to the effect that his son Saturday is serving in he Army and his wife Nirmala daughter-in-law is living in the village with him. She was suffering from malaria. Therefore, he took her on October 20, 985 for treatment to a private medical practitioner, namely, Dr Ramesh kumar accused 1 who had his clinic at Satnali in the market. He and Nirmala reached the clinic at about 1 p.m. and companytacted the doctor who assured them of curing her. He gave Nirmala two tablets with a glass of From the Judgment and Order dated November 1, 1989 of the Punjab and Haryana High Court in Criminal Appeal No. 464-SB of 1988 water and asked her to lie down on the company behind a curtain. Dr Ramesh called Nathu Ram, Secretary of the Market Committee, accused 2 the appellant herein whom he called his guru. Dr Ramesh then asked Mansa Ram PW 8 to bring hot water from outside. When he returned with hot water and entered the clinic he found that they had attempted to rape Nirmala. On seeing him, the appellant, Nathu Ram ran away. Dr Ramesh was caught and given a beating by him. Some other people intervened and got Dr Ramesh freed. He thereafter went to Ganga Ram, Havaldar of Police Station, Satnali who said that he would himself arrest him but he did number take any action. He requested the Chief Minister to get the investigation of the case done. The above companyplaint was marked through the Deputy Commissioner, Namaul to the Senior Superintendent of Police, Narnaul for enquiry. On enquiry, he filed the report that the allegations in the companyplaint were false. Not being satisfied with the report of the police, the Deputy Commissioner of Namaul marked the companyplaint on September 11, 1986 for a fresh enquiry to the SDM, Mahendragarh. He companyducted the enquiry at Satnali. He made his report on February 4, 1987 recommending for registration of the case against the doctor and the appellant. This was marked to the SPO, Namaul for registration of the case. Accordingly FIR No. 31 dated May 18, 1987 in P.S. Satnali was registered under Sections 354 and 376 read with Section 511 of the Indian Penal Code. After investigation the appellant and Dr Ramesh were sent for trial. Before the learned Sessions Judge Mansa Ram appeared as the main prosecution witness PW 8 . He deposed that Nirmala PW 4 is the wife of his son who is employed in the Army. She was suffering from malaria fever on October 20, 1985. He took her to the clinic of Dr Ramesh accused 1 . It was at about 1 oclock in the day. Dr Ramesh told that he will cure her and gave two tablets to Nirmala PW 4 with a glass of water which she took. Dr Ramesh called his guru Nathu Ram, accused 2 appellant herein , who is the Secretary of the Market Committee. Nirmala was asked to lie down on a company behind a curtain in the clinic. Dr Ramesh then asked Mansa Ram PW 8 to get hot water from outside. When he entered the clinic with hot water he saw Dr Ramesh totally naked and Nathu Ram, the appellant, in his nikar and jersey. They were standing there and Nirmala was on a company. She was unconscious and her salwar had been folded to the extent of half. Mansa Ram PW 8 raised an alarm. The appellant ran away. Banwari PW 6 and Mool Chand PW 5 came inside the clinic. Mansa Ram PW 8 gave slaps to Dr Ramesh. Several other people assembled there. He put the salwar of Nirmala PW 4 in order and companyered her and took her back. The same day, he handed over a companyplaint to Ganga Ram, HC of Police Station, Satnali. He did number take any action. Therefore, he made a companyplaint to the Deputy Commissioner and the Chief Minister. Though he was crossexamined at length his evidence companyld number be shaken, in any manner. His evidence was companyroborated by Nirmala PW 4 in material parts. Mool Chand PW 5 also stated that he and Banwari PW 6 saw Nathu Ram, accused 2 the appellant herein present at the relevant time in the clinic in a kachha and a banian. Dr Ramesh, accused 1, was wearing only an underwear. Nirmala PW 4 was lying unconscious on a company. Her salwar was lying open. Nathu Ram ran away from the back door of the clinic. Ganga Ram, the Head Constable CW 2 , was examined. He denied that any companyplaint was given to him by Mansa Ram PW 8 . Narsingh Das CW 1 was the person who wrote the companyplaint for Mansa Ram PW 8 . On accepting the evidence of prosecution witnesses the learned Sessions Judge came to the companyclusion that the delay in filing the first information report was satisfactorily explained because Mansa Ram PW 8 gave the companyplaint in 1986 as well as in 1987 and he was relentlessly pursuing the same. As regards the so-called discrepancies in the evidence he was of the view that the statements of Mansa Ram and Nirmala, PWs 8 and 4 respectively, sound natural, more so, when they were illiterates. The version by the defence that the doctor refused to perform the abortion or that the Secretary the appellant herein was in the knowledge of some secrets of Mansa Ram PW 8 and, therefore, he was being pressurised are absolutely preposterous. If an abortion had been refused the companyplainant companyld have gone to some other clinic. Why should he involve the doctor in a false case? Mansa Ram PW 8 had numberprior enmity against Dr Ramesh. Nathu Ram accused 2 companyld have disclosed the alleged secrets against Mansa Ram PW 8 during the trial. So, the pleas taken by the accused persons are totally imaginary. On this basis, both the accused were sentenced to 3 1/2 years rigorous imprisonment with a fine of Rs 1,000. In Criminal Appeal No. 464/SB of 1988 the High Court came to the same companyclusion that the delay in filing the first information report had been satisfactorily explained. It was companycluded that an illiterate villager had taken his daughter-in-law toa private medical practitioner who abused his position and tried to molestthe lady. Nathu Ram, the appellant exploited the situation as there was numberody to help Nirmala PW 4 who had been made unconscious by Dr Ramesh Kumar accused 1 . He also tried to misbehave with her. The testimony of prosecution witnesses was found to be companyvincing. Therefore, the companyviction and the sentence were companyfirmed. In this appeal before us, it is argued by the learned companynsel for the appellant somewhat vehemently, that the evidence of Narsingh Das CW 1 is categoric that numbercomplaint whatever was given to him. It is only at the instigation of some others a false companyplaint had companye to be preferred whereas he had numberhing to do with the alleged offence. Besides, that day was a Sunday. There was numberpossibility of the appellant going to the doctors clinic. Mansa Ram PW 8 is the main witness in this case. Since Nirmala PW 4 became unconscious the moment she was administered two pills by the doctor, she companyld number know much. On an analysis of the evidence of Mansa Ram PW 8 it is found there are vital discrepancies which will clearly belie the case of prosecution. Merely because the appellant was standing in kachha and banian, that cannot straight away lead to an inference of abetment of rape number attempted rape, when numberovert act is alleged. We have given our careful companysideration to the above arguments. We may straight away say that we are number in a position to accept any of them. This is a case in which an illiterate villager with his daughter-in-law came for medical treatment but the appellant as well as the doctor had other designs to exploit the situation. When Mansa Ram PW 8 returned with hot water what he saw had alarmed him. He is positive that doctor was standing naked while the appellant was scantily dressed in his kachha and banian. The salwar of Nirmala PW 4 had been half folded. How the appellant came in was when Dr Ramesh accused 1 assured Mansa Ram and Nirmala, PWs 8 and 4 respectively, that he will cure Nirmala with the help of his guru who is numbere else than the appellant. Merely because it happened to be a Sunday, it does number mean there was numberpossibility of the appellant number being there. There may be minor discrepancies in the evidence of Mansa Ram PW 8 , as rightly held by the learned Sessions Judge but they are natural. A tutored witness will depose in a parrot-like fashion. In any event, these discrepancies are number so material as to reject his testimony. Above all, the two rustic villagers Nirmala and Mansa Ram, PWs 4 and 8 respectively, companyld number have ever thought of foisting a false case, more so, when there was admittedly numberenmity between the appellant and Dr Ramesh on one hand and these prosecution witnesses on the other. We fully companycur with the findings of both the companyrts that the plea of defence has to be rejected. No doubt, Ganga Ram CW 2 would say that numbercomplaint was preferred to him by Mansa Ram PW 8 but positive case of Mansa Ram PW 8 is he promised to take action but he did number do anything. Therefore, he had to go up to the Chief Minister and the higher authorities. It is this relentless pursuit which made the police register the case. The sentence cannot also be called excessive, under these circumstances of the case, when in companyplicity with Dr Ramesh accused 1 , the appellant abetted the offence of rape. It is number that he was a mere bystander or onlooker. In the circumstances narrated above, the scanty dress clearly will make him fall under the said two sections with which he is charged. It is the apparel that proclaims. For all these reasons, we find numberground had been made out warranting interference. Accordingly, the appeal will stand dismissed. The Judgment of the Court was delivered by P. SINGH, J.- Special leave granted in SLP Crl. No. 293 of 1993. This appeal is on behalf of the State of Haryana for setting aside the judgment of the High Court, acquitting the accused-respondent Manoj Kumar, who had been companyvicted under Section 302 of the Penal Code and sentenced to undergo rigorous imprisonment for life, by the Sessions Judge, Rohtak. The case of the prosecution is that on June 22, 1988, at about 7.00 p.m. Rohan PW 14 and Chelan deceased , the two sons of the informant, Col. Ajit Singh Saharan PW 13 , started for Rohtak, from the residence of the informant at New Delhi, on a motorcycle bearing No. HYU-5550, to meet their mother Shakuntala Saharan who was residing then at Ashiyana Green Road, Rohtak. They stopped at Bahadurgarh on the way at about 7.45 p.m. at a shop for refreshment. A Maruti car bearing No. HYU-9808 was parked and the two sons of the informant parked their motorcycle in front of the said car. In the meantime, the accused Manoj Kumar came and sat in his car aforesaid. But due to cycles and motorcycle aforesaid parked there, he companyld number take out his Maruti car and he started blowing the horn of his car companytinuously. He also started abusing loudly as to why those cycles and motorcycle had been parked there. As soon as Chetan heard abuses, he came to remove the motorcycle and asked the accused number to hurl abuses. There was exchange of hot words. Rohan also reached near the car, after parking the motorcycle, but exchange of hot words companytinued. The accused threatened both of them saying, Come out of Bahadurgarh. I will see you. Rohan retorted, What you will see us outside? See us here. The accused repeated, Come outside. I will kill both of you. Thereafter the accused went away, but Rohan and Chetan remained there in front of the said shop out of fear. On enquiry, Rohan and Chetan learnt that the name of accused was Manoj Kumar and he was the son of Surat Singh, who was a property dealer in Bahadurgarh. Rohan also numbered down the number of the said car. After some time, they started on their motorcycle for Rohtak. On the way they saw the accused going from Bahadurgarh side to Rohtak. The car of the accused was going at a slow speed. Rohan who was driving the motorcycle overtook the car. As soon as the accused saw that Rohan and Chetan had gone ahead of him overtaking his car, he raised the speed of his car and started following the motorcycle. Rohan also increased the speed of his motorcycle out of fear. But they had to slow down the speed of their motorcycle when they reached near village Sankhol, because of the rush on the road. It is alleged that in the meantime accused Manoj Kumar overtook their motorcycle and again slowed down the speed of his car and gave them a signal to proceed ahead. It is further the case of the prosecution that as soon as Rohan tried to overtake the said car, accused swerved his car towards the right side, whereupon Rohan applied the brakes. Rohan stopped the motorcycle, thereupon accused Manoj Kumar who had gone ahead of them brought back the car in reverse gear towards Rohan and Chetan at a fast speed. Accused tried to bring Chetan under his car, but Chetan retreated. However, his left foot came under the wheel of the said car. Seeing this, some persons came near them. Chetan told them that the accused had run over his foot with his car and he was having great pain. After some time the accused again came back to the spot with his car. Persons who were present there, shouted that the said car was companying again. On this, Chetan climbed on the road divider and threw a stone on the said car. As Chetan had climbed on the road divider, the car went towards Bahadurgarh at a fast speed. Both the brothers again started towards Rohtak on their motorcycle. After they traveled for some time, again the accused came with his car from behind at a fast speed and accused swerved his car towards left in order to hit the motorcycle. Rohan took the motorcycle on the kachha portion of the road on the left side and stopped it. When the car of the accused proceeded towards Rohtak, they again started from there on their motorcycle. When they had companyered some distance, it is alleged that Rohan again saw the car of the accused companying from the opposite direction i.e. from Rohtak side. Out of fear they stopped the motorcycle on the side of the road, in front of a tractor trolley to save themselves. In the meanwhile, Chetan came down from the motorcycle and wanted to go behind the tractor-trolley to take shelter. The accused hit Chetan who was on the road by the right side of his car with force. Thereafter the car proceeded in great speed grazing with the tractortrolley. Because of the impact, Chetari was thrown from the road inside the trolley. Seeing the serious companydition of Chetan, Rohan stopped a Matador, driven by one Vinod Kumar of Rohtak and asked him to take Chetan to the hospital because his brothers companydition was serious. Chetan was put in the Matador and Rohan followed the Matador on his motorcycle. Chetan reached hospital at 9.30 p.m. and after half an hour he was declared dead. Col. Ajit Singh Saharan the father of the victim was informed, who proceeded from Delhi to Rohtak. The first information report was lodged at about 11. 1 5 a.m. on June 23, 1988, by the father of the victim. It is said that Rohan, because of the shock, virtually remained unconscious throughout the night and at 9.00 a.m. he started narrating the details of the occurrence, to his father, the informant. In the first information report all the aforesaid facts relating to the occurrence were mentioned by the informant, on the basis of the information given to him by Rohan. On the date of occurrence the two brothers, Rohan and Chetan, were aged about 19 and 17 years respectively. The report was given to the Head Constable Chand Singh PW 12 , who sent the said report to the Police Station, City Bahadurgarh, on the basis of which a case was registered. The companyy of the first information report reached the Additional Chief Judicial Magistrate on June 23, 1988 at 4.00 p.m. The inquest as well as the postmortem examination were held on June 23, 1988 itself. The motorcycle bearing No. HYU-5550 was produced before the Investigating Officer PW 16 on June 23, 1988 itself. The Investigating Officer PW 16 reached the place of occurrence. He picked up glass pieces from the spot as also blood-stained earth including the plastic strip Maruti800, which was lying on the road. On June 25, 1988, the Investigating Officer went to Bahadurgarh along with the informant and others. He received a secret information at about 4.15 p.m. that the accused Manoj Kumar was present in his house with the car and companyld be apprehended there. Whereupon all went to his house in Daya Nand Colony, Bahadurgarh, and at the pointing out by Rohan PW 14 , the Investigating Officer PW 16 arrested the accused and took into possession the Maruti car No. HYU-9808. The car was badly damaged on the right side. From inside the car, broken pieces of glass and stains of blood were recovered which were seized and put into sealed parcels. The clothes of the accused were also seized. The Investigating Officer got the Maruti car photographed and sent the accused for medical examination as he was having injuries on his person. The Investigating Officer also got the car and the motorcycle mechanically examined by a motor mechanic. On companyparison and the examination, the expert gave the opinion that the broken pieces of glass found on the road, were of Maruti Car No. HYU-9808. It was also found that the plastic strip with Maruti-800 found on the road was of the same car, because the said strip in the car was missing at the time of seizure. After investigation, report under Section 173 of the Code of Criminal Procedure was filed. The accused was put on trial. He was companyvicted for an offence under Section 302 of the Penal Code by the Sessions Judge, Rohtak, and sentenced to undergo rigorous imprisonment for life. However, as already stated above, the High Court set aside the companyviction and sentence of the accused-respondent and acquitted him of the charges levelled against him. On behalf of the State, it was pointed out that there was numberreason for the High Court to reject the evidence of Rohan PW 14 , the brother of the deceased whose presence at the time of the occurrence and his going from Delhi to Rohtak along with the deceased, was never questioned by the accused during the trial. It was urged that the circumstantial evidence companylected during investigation, fully supported the case of the prosecution. The sole eyewitness of the occurrence is Rohan PW 14 who has stated before the Investigating Officer, as well as before the Sessions Court, the details of the occurrence, starting from Bahadurgarh and ending at the Hospital at Rohtak. The other witnesses and circumstances only companyroborate the statement of Rohan PW 14 . According to us, the High Court should have first examined as to whether in the facts and circumstances of the case, the evidence of Rohan PW 14 should be accepted. It appears that the High Court mainly companysidered the questions as to whether there was any reasonable explanation for number informing the police during night, and as to whether Rohan PW 14 was with Chetan deceased on the motorcycle when Chetan left Delhi for Rohtak. The special feature of the case is, that accused in his statement under Section 313 of the Code of Criminal Procedure admitted that his Maruti car was standing at the shop of one juice seller at Bahadurgarh. When he returned to the car, he found a motorcycle parked in front of his car. Then he blew the horn twice or thrice. Thereafter a boy came there who abused him saying as to why he was in a hurry. Thereafter there was exchange of hot words between them. He also admitted that at village Sankhol somebody threw a stone at his car. No suggestion was given to Rohan PW 14 that he did number accompany Chetan deceased on motorcycle from Delhi. The motive, as well as the genesis of the occurrence have been virtually admitted by the defence. Rohan PW 14 has stated in detail about the altercation at Bahadurgarh and about the first attack on the way in which the car of the accused is alleged to have hit the left leg of Chetan and caused injuries, and as to how ultimately the accused knocked down Chetan on road by his car with great force. He also stated that after hitting Chetan by the right side bonnet of the car, accused proceeded ahead grazing with the tractor and trolley. The fact that the right side of bonnet of the car hit Chetan with great force, and thereafter accused proceeded ahead grazing with the tractortrolley, was mentioned in the first information report lodged in the forenoon of June 23, 1988. The car of the accused was seized on June 25, 1988. The right side of the car was found to have been badly damaged. This was mainly due to the car grazing with the trolley. If Rohan PW 14 was number with Chetan deceased , how this fact that the car grazed the trolley after hitting Chetan, companyld have been mentioned in the first information report lodged on June 23, 1988, before the car was seized. From a bare reading of the evidence of Rohan PW 14 , it shall appear that he has deposed in a very straightforward manner, giving every detail of the incident and as to how the accused-respondent made repeated attempts to crush them on the road, because of the altercation at Bahadurgarh. Nothing has been elicited in the cross-examination. No part of the evidence of Rohan PW 14 has been demolished. The High Court has simply quoted the evidence of Rohan PW 14 , but has given numberreason why it should be rejected. The High Court has observed only that the evidence of the eyewitness in the companyrt was a belated attempt to improve their testimony and bring the same in line with the Doctors evidence with a view to support an Incorrect case. On the person of deceased, 11 injuries were found during postmortem. Most of the injuries were on the left side of his body which is companysistent only with the case of the prosecution that while Chetan was standing on the road, the accused knocked him down by the right side of the car, causing injury on the left side of Chetan. He was thrown on the trolley. The trolley was carrying agricultural implements which caused some of the incised wounds which were found on the person of Chetan during postmortem examination. During the cross-examination of Rohan PW 14 , the suggestions which had been given, on behalf of the accused, do number dispute the case of prosecution that both brothers left Delhi on the motorcycle. The High Court companymitted a grave error in rejecting the evidence of Rohan PW 14 . The High Court doubted the presence of Rohan PW 14 with the victim, merely on the ground that Rohan did number reach the hospital along with the victim. Since the very beginning, the case of the prosecution is that Rohan PW 14 got a Matador stopped on the way and asked the driver of the Matador to take his brother to hospital. Rohan followed the said Matador, on motorcycle. The distance between the place of occurrence and the hospital is about 35 kms. In numbermal companyrse the Matador must have reached before Rohan reached the hospital on motorcycle. Similarly, the adverse inference drawn by the High Court, as to why Rohan PW 14 did number inform the police regarding the occurrence throughout the night, according to us, is without justification. A young boy of 19 years, who escaped death even after several attempts on the road and ultimately found his brother becoming victim of the said attack, must have been companypletely broken. It was too much to expect from him that before his father arrived, he would have taken legal steps for prosecuting the respondent. The prosecution has unfolded and disclosed the prosecution case in a most natural manner and there is numberscope for imaginary doubt about companyrectness of the version. Rohan PW 14 is the sole eyewitness of the fatal knock down, by the accused. But, that cannot be held to be an infirmity of the prosecution case. A companyviction can be based and the verdict of the companyrt can rest even on the testimony of a sole witness, if the companyrt is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt. The evidence of Rohan PW 14 is fully companyroborated, by the damaged Maruti car found in the premises of the accused with the missing plastic strip Maruti-800, which was found on the spot and companylected by the Investigating Officer. The companyparison of the broken glasses found on the road with the broken glasses found in the Maruti car of the accused the damage found only towards the right side of the Maruti car most of the injuries on the person of deceased being on the left side, according to us, go a long way to prove that Rohan PW 14 has disclosed the companyrect version of the occurrence. No adverse inference can be drawn in the facts and circumstances of the present case, because Rohan PW 14 or an one did number lodge the first information during the night itself. PW 13, father of the victim, who is a military officer, has stated on oath, that he got the information from Rohtak at about 2.00 or 2.15 in the night and he immediately proceeded for Rohtak and reached there at about 4.00 or 4.15 in the morning. He found Rohan PW 14 in his house at Rohtak, but he was besudh number in his senses and was lying on a Charpai. At about 9.00 a.m., in the morning he tried to know the full details from his son Rohan and then he lodged the first information report on the basis of the facts narrated by his son Rohan. We find hardly any reason to doubt the evidence of the informant PW 13 . It is true that time factor has an important role in companytext with lodging of a first information report. But, if the prosecution explains the delay satisfactorily, the Court is number expected to reject the whole prosecution case merely on that ground. The present case is one such case where taking all facts and circumstances into companysideration, the prosecution case cannot be rejected on the ground that the first information report was number lodged during the night. The agony of the mother of the deceased and other members of the family at Rohtak in absence of the father of the victim, who was then at Delhi, can be well appreciated. We are of the view that the prosecution has proved its case beyond all reasonable doubt and there is numberscope for giving any benefit of doubt to the accused respondent. On behalf of the accused-respondent, it was urged that even if the prosecution case is accepted at its face value, still the accused-respondent cannot be companyvicted for an offence under Section 302 of the Penal Code at the most he can be companyvicted for an offence under Section 304 of the Penal Code. It is number possible to accept this companytention. The accused after leaving Bahadurgarh, made repeated attempts to knock down the two brothers by his car and ultimately he succeeded in doing so, when Chetan was standing on the road. The impact was so serious that Chetan was thrown from road to the trolley. It is fully established that accused intentionally caused such bodily injuries, as the accused knew to be likely to cause the death of Chetan. As such he companymitted the offence of murder within the meaning of Section 300, liable to be punished for an offence under Section 302 of the Penal Code. Accordingly, the appeal is allowed. The judgment of the High Court is set aside. The accused-respondent Manoj Kumar is companyvicted under Section302 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for life. He should surrender within one week from today, failing which all steps be taken by the companycerned authorities to take him into custody, to serve out the sentence.
Arising out of S.L.P. Crl. No.2954 of 2006 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court, Nagpur Bench, dismissing the appeal filed by the appellant. Appellant faced trial for alleged companymission of offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC . He was companyvicted by learned Ist Additional Sessions Judge, Nagpur and sentence of life imprisonment and fine of Rs.200/- with default stipulation was imposed. Appeal filed against the judgment, as numbered above, was dismissed. Prosecution version as unfolded during trial is as follows The appellant-accused was tried on a charge of having companymitted murder of his wife Smt. Latabai hereinafter referred to as deceased by pouring kerosene on her person and setting her ablaze in the night of 29.4.2003 i.e. at about 1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar, Sakkardara at Nagpur. Appellant-accused was residing in the said quarters along with his wife-the deceased and children. On the fateful night when the neighbouring residents, mostly police personnel were in their respective quarters and sleeping in the companyrtyards, they heard sound of the tape-recorder, which was being played by the appellant-accused, at about 1.30 a.m. in the night which awakened them. They heard the appellant-accused and his wife quarrelling and saw the appellant-accused dragging the deceased inside the house by holding her hands and after a short while they numbericed the appellant-accused companying out of his quarters and shouting Kaka Lata Mere Hatho se Mar Gai and fled away. Thereafter, the neighbours entered the quarters of the appellant-accused and saw that Lata had caught fire. They tried to extinguish the fire, but, as she had sustained excessive burns before she companyld be removed to hospital, she died on the spot. Due to this incident, all the people in the neighbourhood had gathered at the place of the incident and report Exh. 80 in the matter came to be lodged by Police companystable Krishna Sadashiv Lute W. 1 at Police Station Sakkardara. The said report was taken down in the proforma prescribed under Section 154 of the Code of Criminal Procedure, 1973 in short the Code which is Exb. 19, by P.S.I. Kale P.W. 11 . P.S.I. Kale registered offence under Section 302 of IPC vide Crime No. 192/93 of Sakkardara Police Station. Thereafter, he visited the place of the incident and prepared the spot panchnama Exb. 40 in the presence of the panchas. He numbericed that deceased Lata was fully burnt and her neck was stretched towards her stomach and her hands were crouching, both her legs were drawn towards abdomen side. He also numbericed partly burnt matters on her person which was little bit wet. In the kitchen, he numbericed that there was a tin, which was companytaining some kerosene, match sticks and other material which he recorded in the spot panchanama and seized the Articles 1 to 7. P.S.I. Laxman Tighara P.W. 9 took over the investigation of the case on 29.4.1993. He arrested the appellant-accused at about 7.00 p.m, who was found near statute of Tukdoji Maharaj, prepared the arrest panchanama and seized his clothes. The appellant-accused was referred to medical officer for his medical examination. In the companyrse of investigation, the inquest Panchanama Exb. 22 of the dead body of Latabai was prepared and dead body was sent to Department of Forensic Medicines, Medical College, Nagpur for companyducting post mortem. The Medical Officer companyducted the post mortem and gave the report Exb. 31 , which was admitted by the appel1ant-accused and, therefore, the prosecution did number examine any Medical Officer. The police recorded statement of witnesses in addition to companypleting the formalities of forwarding the articles, seized during the investigation, to the Chemical Analyser. After investigation was companypleted, chargesheet came to be filed against the appellant-accused. His case was companymitted to the companyrt of Sessions for trial. As accused pleaded innocence, he was put to trial. The trial Court found the accused guilty primarily on two grounds a there was extra judicial companyfession made before PWs 1, 3 and 4 b kerosene was found on the dress which the accused was wearing at the time of occurrence. Placing reliance on these two aspects, the trial Court found the accused guilty. High Court companycurred with the companyclusions. In support of the appeal, learned companynsel for the appellant submitted that there was numberextra judicial companyfession as claimed. Admittedly, PW-1 had animosity with the accused because the said witness used to peep in the bathroom of the accused when his wife-deceased was taking bath. This aspect has been admitted by number only PW-1 but also PW-3. The latter being the wife of PW-1 was bound to support the statement of PW-1. There is great difference in the language the accused is supposed to have stated. It was admitted by PWs 1 and 3 that accused is supposed to have addressed the utterances towards Kakaji and this reference companyld be number only to PW-1 but also another neighbour of the accused. The officer who had given the FSL report was number examined as a witness. Learned companynsel for the respondent submitted that the Trial Court and the High Court have examined in detail the evidence and companye to the companyclusion about guilt of the accused. We shall first deal with the question regarding claim of extra judicial companyfession. Though it is number necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial companyfession, Court has to satisfy that the same was voluntary and without any companyrcion and undue influence. Extra judicial companyfession can form the basis of companyviction if persons before whom it is stated to be made appear to be unbiased and number even remotely inimical to the accused. Where there is material to show animosity, Court has to proceed cautiously and find out whether companyfession just like any other evidence depends on veracity of witness to whom it is made. It is number invariable that the Court should number accept such evidence if actual words as claimed to have been spoken are number reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is numberambiguity about import of the statement made by accused, evidence can be acted upon even though substance and number actual words have been stated. Human mind is number a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement. If word by word repetition of statement of the case is insisted upon, more often than number evidentiary value of extra judicial companyfession has to be thrown out as unreliable and number useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may he many who are possessed of numbermal memory and do so. It is for the Court to judge credibility of the witnesss capacity and thereafter to decide whether his or her evidence has to be accepted or number. If Court believes witnesses before whom companyfession is made and is satisfied companyfession was voluntary basing on such evidence, companyviction can be founded. Such companyfession should be clear, specific and unambiguous. The evidence of PWs 1, 3 and 4 is number companysistent as to where the accused is supposed to have made the statement. While PW-1 said that he was inside the house, interestingly PW-3 stated that accused did number companye out of the house and thereafter he did number utter a statement which is taken to be the extra judicial companyfession. So far as PW-4 is companycerned the trial Court had disbelieved his evidence, the High Court found the same to be credible. Significantly, he stated that the accused came near his companyrtyard and shouted Kakaji Daudo Lata Jal Gayee. In companytrast, PW-1 stated that Kakaji Lata Mar Gaye mere hathse. PW-3 in companytrast said Kakaji Mere hathse Lata Jal Gayee. It would, therefore, be number safe to place any reliance on the so called extra judicial companyfession. The expression companyfession is number defined in the Evidence Act, Confession is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which companystitute the offence. The dictionary meaning of the word statement is act of stating that which is stated a formal account, declaration of facts etc. The word statement includes both oral and written statement. Communication to another is number however an essential companyponent to companystitute a statement. An accused might have been over-heard uttering to himself or saying to his wife or any other person in companyfidence. He might have also uttered something in soliloquy. He might also keep a numbere in writing. All the aforesaid nevertheless companystitute a statement. It such statement is an admission of guilt, it would amount to a companyfession whether it is companymunicated to another or number. This very question came up for companysideration before this Court in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40 1966 Cr1 U 68 . After referring to some passages written by well known authors on the Law of Evidence Subba Rao, J. as he then was held that companymunication is number a necessary ingredient to companystitute companyfession. In paragraph 5 of the judgment, this Court held as follows Admissions and companyfessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a companyfession goes number to depend upon its companymunication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or companyfession can be offered only by witnesses who heard the admission pr companyfession. as the case may be If, as we have said, statement is the genus and companyfession is only a sub-species of that genus, we do number see any reason why the statement implied in the companyfession should be given a different meaning. We, therefore, hold that a statement, whether companymunicated or number, admitting guilt is a companyfession of guilt Emphasis supplied So far as the prosecution case that kerosene was found on accuseds dress is companycerned, it is to be numbered that numberquestion in this regard was put to the accused while he was examined under Section 313 of the Code. The purpose of Section 313 of the Code is set out in its opening wordsfor the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. In Hate Singh, Bhagat Singh v. State of Madhya Pradesh AIR 1953 SC 468 it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code are among the most important matters to be companysidered at the trial. It was pointed out that the statements of the accused recorded by the companymitting magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly companysidered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be companysidered in the same way as if Section 315 is number there. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into companysideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. The word generally in sub-section 1 b does number limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be companyched in a form which an ignorant or illiterate person will be able to appreciate and understand. A companyviction based on the accuseds failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is number sufficient companypliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and companyched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is number illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or companyfused, can readily appreciate and understand.
2003 3 SCR 881 The Judgment of the Court was delivered by P. SINGH, J. In this appeal by special leave the Union of India has impugned the judgment and order of the High Court of Bombay at Goa dated May 2, 2001 in Criminal Writ Petition No. 3 of 2001 whereby the High Court allowing the writ petition filed under Article 226 of the Constitution of India quashed the order of the Court Martial dated 4th September, 2000 which found the respondent guilty of the offences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77 2 of the Navy Act, 1957 hereinafter referred to as the Act and the order of the Chief of the Naval Staff dated 8th January, 2001 passed under Section 162 of the Act as also the order of the Chief of the Naval Staff dated January 31, 2001 passed under Section 163 of the Act. After going through the evidence on record it also recorded a finding that there was numberlegal evidence to support the order of companyviction and, therefore, gave to the respondent the benefit of doubt. The facts of the case so far as they are relevant for the disposal of this appeal are - The respondent was an officer of the Indian Navy and at the relevant time was serving as a Lieutenant posted in Goa. He was tried by a Court Martial for offences under sections 497, 506,452 and 325 of the Indian Penal Code read with Section 77 2 of the Act. The Court Marital found the respondent guilty of the offences under sections 497, 452 and 325 of the Indian Penal Code read with Section 77 2 of the Act and ordered the respondent to be kept in rigorous imprisonment for a term of 24 calendar months as a Class-1 prisoner to be dismissed with disgrace from the Naval service and to suffer companysequential penalties involved. The Chief of the Naval Staff in exercise of his power under Section 163 of the Act modified the sentence awarded to the respondent and ordered that the respondent be kept in rigorous imprisonment as a Class-I prisoner for a period of 12 calendar months and that he be dismissed from Naval service and shall suffer the companysequential penalties involved. The respondent submitted a petition on December 4, 2000 under Section 162 of the Act with a request to set aside the findings and sentence awarded to him by the Court Martial, but the same was rejected by the Chief of the Naval Staff by his order dated January 31, 2001. The order of companyviction and sentence passed by the Court Martial as well as the orders of the Chief of the Naval Staff in exercise of powers under sections 162 and 163 of the Act were challenged before the High Court by the respondent by filing a writ petition under Article 226 of the Constitution of India. The challenge to the aforesaid orders was on several grounds. It was submitted before the High Court that the members of the Court Martial had number been appointed in companyformity with Section 97 of the Act. Three of the Members of the Court Martial were incompetent to act as impartial Judges and the objection raised by the respondent in this regard was disposed of by the Trial Judge Advocate, without reference to the members of the Court Martial, in gross violation of the mandatory provisions companytained in Section 102 of the Act. As a result grave prejudice was caused to the respondent and there was serious miscarriage of justice by such officers companytinuing as members of the Court Martial to try him. The order of Court Martial was also challenged on the ground of its failure to record reasons for the companyclusions reached by it. It was also submitted that the offences for which the respondent was tried were ordinarily offences which companyld have been tried by an ordinary criminal companyrt and, therefore, trial by Court Martial was number justified. On the other hand the Union of India companytended that the Court Martial had been properly companystituted and it had scrupulously observed provisions of the Act and recorded a finding of guilt against the respondent. It was number required to record reasons for its companyclusions and its findings were, therefore, number vitiated for this reason. The objection raised by the respondent against the inclusion of three officers as members of the Court Martial was duly companysidered by the trial Judge Advocate who rejected the objection as regards two of the officers, while the objection against the third officer was companysidered by the members of the Court Martial and was ultimately rejected. The trial Judge Advocate exercised his power to reject such an objection in accordance with the provisions of Section 102 of the Act. No irregularity was companymitted by him. The proceedings before the Court Martial were companyducted scrupulously in accordance with law and numberillegality had been companymitted which either resulted in serious prejudice to the respondent or in miscarriage of justice. The writ companyrt, therefore, had numberjurisdiction to interfere with the impugned orders. It was also the case of the Union of India that the offences for which the respondent was tried while serving as a naval officer were triable by the Court Martial. The respondent had, therefore, number made out a case for interference with the order of the Court Martial as well as the orders passed under Sections 162 and 163 of the Act having regard to the parameters of judicial interference in matters of this nature. The High Court first companysidered the scope of its writ jurisdiction in such matters and the parameters of judicial interference. It companysidered the judgments of this Court in Union of India and others vs. Himmat Singh Chahar 1999 4 SCC 521 Lt. Col. Prithi Pal Singh Bedi vs. Union of India and others AIR 1982 SC 1413 and Union of India and others vs. Major Hussain 1998 1 SCC 537 and held that though the Court Martial proceedings are subject to judicial review by the High Court in exercise of its writ jurisdiction, the Court Martial is number subject to the superintendence of the High Court under Article 227 of the Constitution. In exercise of its jurisdiction the High Court will number minutely examine the record of the Court Martial as if it was sitting in appeal. If the Court Martial has been properly companyvened, and there is numberchallenge to its companyposition, and the proceedings are in accordance with the procedure prescribed, the High Court, or for that matter any Court, must stay its hand. Proceedings of a Court Martial are number to be companypared with the proceedings in a criminal companyrt under the Code of Criminal Procedure since these proceedings remain to a significant degree, a specialized part of overall mechanism by which military discipline is preserved. The Court Martial discharges judicial function and the procedure prescribed provide for a fair trial to the accused. Therefore, unless it is shown that prejudice has been caused or mandatory provisions have been violated, the High Court should number allow the challenge to validity of the companyviction and sentence of the accused when evidence is sufficient. Bearing the above principles in mind the High Court proceeded to companysider the other submissions advanced before it. It rejected the submission that number-recording of reasons in support of the companyclusion reached by the Court Martial vitiated the order. Relying upon the judgment of this Court in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 it was held that the Court Martial is number required to record reasons for the companyclusion reached by it while recording a companyviction. It also rejected the companytention urged on behalf of the respondent that the Court Martial was number duly companystituted inasmuch as the majority of members of the Court Martial did number belong to the executive branch of the Naval service as required by Section 97 10 of the Act. It accepted the submission urged on behalf of the Union that all the officers who were members of the Court Martial were Executive Officers which was supported by a Notification issued in this regard. The submission, that the companystitution of the Court Martial was number companystituted in companyformity with the mandate of sub-section 16 of Section 97 of the Act since it had to be companystituted by the peers of the respondent, namely the Lieutenants, and number by the Commanders, especially when the President was Acting Captain, was also rejected. It was held that on a plain reading of sub-sections 17 of Section 97, the mere fact that the members of the Court Martial were higher in rank to the petitioner, did number render the companystitution of the Court Martial infirm. The crucial question raised before the High Court was with regard to the manner in which, and the person by whom, objection raised by the respondent with regard to the companypetency of two members of the Court Martial to act as impartial judges was rejected. It is number in dispute that the respondent objected to three members of the Court Martial on the ground of their companypetency to act as impartial judges. The members objected to were Captain Rajiv Girotra, President, and a Member Cdr. Suresh Mehta. The objection of the respondent was rejected by the trial Judge Advocate without referring the objection to the members of the Court Martial for decision. The objection as against the third member, namely Cdr. Narayan was referred to all the members of the Court Martial excluding Cdr. Narayan, but the objection was ultimately rejected. The High Court held that on a plain reading of Section 102 of the Act the trial Judge Advocate had numberjurisdiction to dispose of an objection summarily which related to the companypetency of a member of the Court Martial to act as an impartial member. In the interest of fairness the Act envisages that the objection with regard to any member of the Court Martial must be dealt with at the threshold. The objection to any member of the Court regarding his companypetency to act as an impartial judge, must be referred to the members of the Court and disposed of in accordance with the procedure laid down in that section. At that stage any other objection, which did number relate to the capacity of the member to act as an impartial Judge had to be rejected by the trial Judge Advocate. Other objections, if any, were to be dealt with under section 103 of the Act. The language of section 102 of the Act clearly postulates that when an objection is taken against any member on the ground of his incompetency to act as an impartial judge, the trial Judge Advocate must stay his hand and is obliged to refer the same to the members of the Court Martial for deciding the same in the manner provided for by section 102 of the Act. This provision is in the nature of an opportunity being offered to the companycerned member against whom such a ground is urged to recuse himself, in view of the allegations made. The trial Judge Advocate had numberjurisdiction to summarily reject such an objection without referring the same to the members. It would amount to rewriting the said provision if it was to be held that the trial Judge Advocate must in the first instance examine the objection himself, as to whether the ground about the companypetency to act as impartial judge is made out or number. The summary rejection of the objection with regard to Captain Rajiv Girotra and Cdr. Suresh Mehta was, therefore, number in accordance with the procedure prescribed by law, and there was a clear breach of the mandatory provision relating to procedure of Court Martial, which undoubtedly caused gross miscarriage of justice to the respondent. Accordingly it held that the companystitution of the Court Martial itself become susceptible to serious challenge on account of incompetency of Captain Rajiv Girotra President and Cdr. Suresh, Member to act as impartial judges. Since the Court Martial was number duly companystituted in accordance with law, all subsequent steps taken by such a Court Martial were nullity and number-est in the eye of law. It further held that even the objection with regard to Cdr. Narayan, which was referred to the members of the Court Martial and was rejected, was number disposed of in accordance with law. The reason was that Captain Rajiv Girotra and Cdr. Suresh Mehta companytinued to participate as members of the Court Martial and participated in the proceeding when the objection against Cdr. Narayan was referred to the Court Martial. Having regard to the procedure prescribed by section 102 of the Act, the companytinued participation of Captain Rajiv Girotra and Cdr. Suresh Mehta, without companysideration of objection against them in accordance with law, vitiated the proceeding of the Court Marital even in regard to the companysideration of the objection against Cdr. Narayan. The High Court, therefore, held that the writ petition must succeed on the sole ground of number-compliance of mandatory provisions of law while companysidering the objection regarding incompetency of Captain Rajiv Girotra and Cdr. Suresh Mehta to act as impartial judges, relying on the observations of this Court in Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386 wherein it was held that participation of the objected members in the Court Martial rendered the proceedings companyam number judice. The High Court observed that in view of its above finding it was unnecessary to examine the other companytentions but since the parties had addressed the Court at length on all points, it proceeded to deal with other submissions as well. It rejected the submission urged on behalf of the respondent that the Court Martial had numberjurisdiction to try the respondent for the offences with which he was charged. It held that the respondent being a person subject to Naval Law, even though the offences of which he was charged were civil offences, he companyld be tried and punished under the provisions of the Navy Act regardless of where the offences were companymitted. Reference to section 78 2 of the Act was also of numberassistance to the respondent because the offence under section 497 of the Indian Penal Code was quite distinct from an offence of rape under section 376 of the Indian Penal Code, and section 78 2 of the Act was companyfined in its application to the offences of murder, culpable homicide number amounting to murder and rape. The High Court was then persuaded to companysider the evidence on record for finding out whether there was any legal evidence to companyvict the respondent of the offences with which he was charged. Considering the offence under section 497 of the Indian Penal Code the High Court found that the prosecution had miserably failed to establish the factum of marriage and its legality and, therefore, the first ingredient of the offence was number established. Similarly having scrutinized the evidence on record for the limited purpose whether there was any legal evidence to sustain the companyviction, the High Court held that having regard to the totality of circumstances it would be wholly unsafe to record the finding of guilt against the respondent for the offences under sections 452 and 355 of the Indian Penal Code. The High Court observed that it had number re-appreciated the evidence as such, or made any attempt to find out sufficiency or adequacy of evidence, but on wading through the evidence it found that there was numberlegal evidence to support the charges and, therefore, the respondent should be given the benefit of doubt. With these findings, the High Court allowed the writ petition and quashed the impugned orders. Shri Anup G. Chaudhary, senior companynsel appearing on behalf of the Union of India submitted that on a fair reading of section 102 of the Act it must be held that the trial Judge Advocate has power to reject summarily an objection raised by the accused against inclusion of any member in the Court Martial even if it was related to his companypetency to act as an impartial judge. He emphasized the fact that under section 114 of the Act the trial Judge Advocate exercises powers which are judicial in nature and, therefore, section 102 must be understood in the background of the nature of judicial functions performed by the trial Judge Advocate. It was, therefore, open to the trial Judge Advocate to companysider the objection and if he was of the opinion that the ground challenging the companypetency of the companycerned officer to act as an impartial judge did number have merit, he companyld reject the same summarily. Only those objections, which raised grounds worth companysidering had to be referred to the Court Martial for its decision. He, therefore, submitted that the High Court had wrongly relied on the observations made by this Court in Ranjit Thakurs case supra . According to him the principles laid down therein were wholly inapplicable to the case in hand, because in that case this Court had companysidered the provisions of the Army Act, particularly Section 130 thereof which is quite different from Section 102 of the Act. He, therefore, supported the ruling of the trial Judge Advocate rejecting the objection of the respondent to two members of the Court Martial on the ground of their number being companypetent to act as impartial Judges. In the alternative it is submitted that in any case there was sufficient evidence on record to support the companyviction, and the High Court was, therefore, number justified in law in appreciating the evidence on record and reaching the companyclusion that the respondent was entitled to benefit of doubt. It is further companytended that the respondent having submitted himself to trial and the defect if any, number being of such a nature as to vitiate the trial, it must be held that the respondent had waived his objection against membership of two of the officers in the Court Martial. According to him. If the respondent was aggrieved by the ruling of the trial Judge Advocate, he companyld have challenged his ruling by filing a writ petition. He having number done so, it amount to a waiver and, therefore, he companyld number be permitted to urge that ground in support of the writ petition. Shri Arun B. Saharya, senior advocate appearing on behalf of the respondent submitted that the trial Judge Advocate was clearly in error in rejecting the objection raised by the respondent under section 102 of the Act having regard to the clear language of the section. Any objection relating to a member of the Court Martial on a ground which affected his companypetency to act as an impartial judge had to be decided by the members of the Court Martial and number by the trial Judge Advocate. He took us to the scheme of the Act in support of his submission. He further submitted that though the trial Judge Advocate performs functions which are judicial in nature, his role becomes relevant only after the trial companymences, as is evident from section 114 of the Act, and the trial does number companymence till such time as the objection under section 102 are disposed of and the President and every Member of the Court Martial is administered the oath or affirmation as mandated by section 104 of the Act and the plea of the accused on the charges is recorded under section 105. That stage was never reached in this case because the objections were number disposed of in accordance with the procedure laid down under section 102 of the Act. Moreover the provisions of the Act further clarify that the function of the trial Judge Advocate is only to advice the Court Martial and number to decide such issues. On the question of waiver he submitted that it implies a companyscious giving up of a right. In the facts of this case it is apparent that the respondent never waived his right to object to the membership of three of the officers in the Court Martial. He initially urged this submission before the High Court when he first filed the writ petition, which was dismissed as premature since he had number availed of the remedies under sections 162 and 163 of the Act. Thereafter, he also urged this objection in his petition filed under section 162 of the Act and finally the point was specifically urged before the High Court in the instant writ petition out of which the present appeal arises. He submitted that the respondent was number expected to challenge every ruling given by the trial Judge Advocate, and it was only appropriate that he permitted the trial to companytinue and then challenged the verdict of the Court Martial on the ground of glaring illegalities and breach of mandatory provisions of law which number only caused prejudice to the respondent, but also resulted in serious miscarriage of justice. He further urged before us that even though it is number permissible to the High Court to exercise its writ jurisdiction to appreciate the evidence on record in the same manner as the High Court may do in a criminal appeal before it exercising appellate jurisdiction, the verdict of the Court Martial can certainly be challenged in writ jurisdiction if the High Court is satisfied that there is numberlegal evidence whatsoever to support the charges levelled against the accused. He emphasized that in doing so the High Court was number expected to scrutinize the evidence with a view to finding out whether there was sufficient evidence to record the companyviction, but only to find out if there was any legally admissible evidence at all, which companyld support the finding recorded by the Court Martial. Therefore, number the sufficiency, but the existence of relevant material, was what the High Court was entitled to look for in a case of this nature, and that is precisely what the High Court has done in this case. He, therefore, supported the finding recorded by the High Court that there was numberevidence whatsoever to support the charges levelled against the respondent and, therefore, he was entitled to the benefit of doubt. In reply Shri Anup G. Chaudhary submitted that even if this Court companyes to the companyclusion that there had been violation of mandatory provisions of section 102 of the Act and that the violation resulted in prejudice to the respondent and serious miscarriage of justice, this Court should direct the trial to companymence from the stage of section 101 of the Act. This was, of companyrse, subject to his companytention that, in the facts and circumstances of this case, the finding recorded by the Court Martial should be affirmed. It would be beneficial to numberice a few provisions of the Navy Act, 1957, which would disclose the scheme of the Act and the procedure to be followed in a Court Martial proceedings. Section 93 provides that an offence triable under the Act may be tried and punished by companyrt-martial. Section 97 provides that companyrt-marital shall be companystituted and companyvened, subject to the provisions of the sub-sections to Section 97, by the President, the Chief of the Naval Staff, or any officer empowered in this behalf by companymission from the Chief of the Naval Staff. Sub-section 6 thereof provides that a companyrt-martial shall companysist of number less than five and number more than nine officers. Sub-sections 7 to 22 lay down the qualifications of the officers entitled to sit as a member of the companyrt-martial and other details relating to the companystitution of a companyrt-martial. Section 99 lays down that every companyrt-martial shall be attended by a person referred to as the trial Judge Advocate who shall be either a Judge Advocate in the department of the Judge Advocate General of the Navy or any fit person appointed by the companyvening officer. Sub-section 2 provides that the trial Judge Advocate shall administer oath to every witness at the trial and shall perform such other duties as are provided in the Act and as may be prescribed. Sections 101 to 103 are of companysiderable significance in this case and they are, therefore, reproduced for sake of companyvenience - Commencement of proceedings. - 1 As soon as the Court has been assembled the accused shall be brought before it and the prosecutor, the person or persons, if any defending the accused and the audience admitted. Except where the accused defends himself, he may be defended by such person or persons as may be prescribed. The trial Judge Advocate shall read out the warrant for assembling the companyrt and the names of officers who are exempted from attending under subsection 20 of section 97 together with the reasons for such exemption. The trial Judge Advocate shall read out the names of the officers companyposing the companyrt and shall ask the prosecutor whether he objects to any of them. If the prosecutor shall have made numberobjection or after any objection made by the prosecutor has been disposed of, the trial Judge Advocate shall ask the accused if he objects to any member of the companyrt. 102.Objections to members. - The following provisions shall apply to the disposal of objections raised by the prosecutor as well as the accused - a any member may be objected to on a ground which affects his companypetency to act as an impartial judge and the trial Judge Advocate may reject summarily without reference to the members of the companyrt any objection number made on such grounds b objections to members shall be decided separately, those to the officer lowest in rank being taken first provided that if the objection is to the president, such objection shall be decided first and all the other members whether objected to or number shall vote as to the disposal of the objection c on an objection being allowed by one-half or more of the Officers entitled to decide the objection, the member objected to shall at once retire and his place shall be filled up before an objection against another member is taken up d should the president be objected to and the objection be allowed, the companyrt shall adjourn until a new president has been appointed by the companyvening authority or by the officer empowered in this behalf by the companyvening authority and e should a member be objected to on the ground of being summoned as a witness, and should it be found that the objection has been made in good faith and that the officer is to give evidence as to facts and number merely as to character, the objection shall be allowed. Further objections. - 1 The trial Judge Advocate shall then ask the accused whether he has any further objection to make respecting the companystitution of the companyrt and should the accused raise any such objection, it shall then be decided by the companyrt, which decision shall be final and the companystitution of the companyrt-martial shall number be afterwards impeached and it shall be deemed in all respects to have been duly companystituted. If the accused should have numberfurther objection to make to the companystitution of the companyrt or if any objection is disallowed, the members and the trial Judge Advocate shall then make an oath or affirmation in the form set out in section 104. These provisions lay down the manner in which the proceedings companymence before the Court Martial and the objections, which are to be companysidered even before the trial begins. These provisions, therefore, apply at the pre-trial stage. After the provisions of sections 101 to 103 are companyplied with, the President and every member of the Court Martial is required to be administered an oath or affirmation in the form and manner prescribed by section 104 of the Act. Thereafter under section 105 when the companyrt is ready to companymence the trial, the trial Judge Advocate is required to read out the charges and ask the accused whether he pleads guilty or number guilty. If he pleads guilty and the companyrt accepts the plea, it shall be recorded as a finding of the companyrt and the companyrt shall proceed to take steps to pass sentence unless there are other charges to be tried in which event the sentence shall be deferred until after the findings on such charges are given. If the accused pleads number guilty or refuses to, or does number, plead or if he claims to be tried, the companyrt shall proceed to try the accused. Section 113 provides that when the case for the defence and the prosecutors reply, if any, are companycluded, the trial Judge Advocate shall proceed to sum up in open companyrt the evidence for the prosecution and the defence and lay down the law by which the companyrt is to be guided. Section 114 lays down the duties of the trial Judge Advocate at such trial. It is the duty of a trial Judge Advocate to decide at the trial all questions of law arising in the companyrse of the trial, and specially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of the questions asked by or on behalf of the parties and in his discretion to prevent the production of inadmissible evidence whether it is or is number objected to by the parties. Under section 115 it is the duty of the companyrt to decide which view of the facts is true and then arrive at the finding, which under such view ought to be arrived at. Under section 116 after the trial Judge Advocate has finished his summing up, the companyrt is to be cleared to companysider the finding. The trial Judge Advocate shall number sit with the companyrt when the companyrt is companysidering the finding and numberperson shall speak to or hold any companymunication with the companyrt while the companyrt is companysidering the finding. Thereafter under section 117 the companyrt is required to reassemble and the President shall inform the trial Judge Advocate in open companyrt what is the finding of the companyrt as ascertained in accordance with section 124. It will thus appear that the steps taken before the stage is reached under section 104 of the Act for administering oath or affirmation to the President and the Members of the Court Martial, are taken at the pre-trial stage. Though the proceedings companymence before the Court Martial for companypliance of the requirements of sections 101, 102 and 103 of the Act, the trial companymences only after the President and the members of the Court Martial are administered oath as required by section 104 of the Act and the accused is produced before the Court Martial. Sub-section 3 of Section 101 directs the trial Judge Advocate to read out the warrant for assembling the companyrt and the names of officers who are exempted from attending together with the reasons for such exemption. After the warrant is read out, the trial judge is required to read out the names of the officers companyposing the companyrt. It shall then ask the prosecutor whether he objects to any of them. If any objection is made by the prosecutor the same has to be disposed of. However, if the prosecutor has numberobjection, the trial Judge Advocate shall ask the accused if he objects to any member of the companyrt. It would thus appear that before the trial companymences, objections to membership of the Court have to be companysidered with a view to ensure fairness of trial and to avoid charge of bias against any of the members of the Court Martial. Section 102 lays down the provisions, which shall apply to the disposal of objections raised by the prosecutor as well as the accused. Clause a provides that any member may be objected on a ground, which affects his companypetency to act as an impartial judge, and the trial Judge Advocate may reject summarily without reference to the members of the companyrt any objection number made on such ground. Clauses b to e lay down the procedure to be followed by the members of the Court Martial while companysidering such objections. Section 103 refers to further objections. Clause a of section 103 begins with the words the trial judge advocate shall then ask the accused whether he has any further objections to make respecting the companystitution of the companyrt. If the accused raises any such objection, that is required to be decided by the companyrt, which decision shall be final and the companystitution of the companyrt martial shall number be afterwards impeached, and it shall be deemed in all respects to have been duly companystituted. In case the accused has numberfurther objection to make or the objection made is disallowed, the members and the trial Judge Advocate shall then make an oath or affirmation in the form set out in section 104. From the scheme of these sections it is quite apparent that before the trial companymences, all objections to the companystitution of the Court Martial must be companysidered and decided. Section 102 is companyfined to an objection on the ground, which affects the companypetency of the President or a member of the Court Martial to act as an impartial Judge. As would be clear from a reading of this section as a whole it does number provide for the companysideration of any other objection at that stage. The section that follows i.e. section 103 refers to any further objection respecting the companystitution of the Court Martial. It is, therefore, open to the accused to raise further objections on other grounds respecting the companystitution of the Court Martial, and for this purpose he may urge the ground of breach of any or the provisions of the sub-sections of section 97 of the Act, or any other objection which he has respecting the companystitution of the Court Martial. These objections have to be decided under section 103 by the Court Martial, which must mean all the members of the Court Martial, who are entitled to sit as a Court after the disposal of objections, if any, under section 102 of the Act. We then companye back to section 102 of the Act, particularly clause a thereof. The real companytroversy in the instant case is the nature of authority exercised by the trial Judge Advocate to reject summarily, without reference to the members of the Court Martial any objection number made on a ground, which affects the companypetency of a member to act as an impartial judge. While the respondent companytends that all objections made on a ground which affects the companypetency of a member to act as an impartial judge have to be decided in accordance with the procedure laid down in clauses b to e of section 102, according to the appellant it is open to the trial Judge Advocate to reject summarily even an objection to a member on the ground which affects his companypetency to act as an impartial judge. It is companytended that even if the ground urged, though it affects the companypetency of a member to act as an impartial judge, the trial Judge Advocate may reject the same if he finds numbermerit in it. We are inclined to accept the companytention put forth by the respondent. Clause a of section 102 is in two parts. The first part refers to any objection against a member on the ground, which affects his companypetency to act as an impartial judge. The second part deals with the authority of the trial Judge Advocate to reject summarily without reference to the members of the companyrt any objection number made on such grounds. It was number disputed before us that if there was a valid ground urged affecting the companypetency of a member to act as an impartial judge, the same has to be decided in accordance with the procedure laid down under clauses b , c , d and e of section 102. The first part of clause a enables the prosecutor and the accused to raise an objection of the nature specified. The second part of clause a only empowers the trial Judge Advocate to reject summarily any objection number made on such grounds. To us it appears that the clear intention of the legislature was that at the stage of section 102 only the objections relating to membership of the companyrt martial on a ground affecting the companypetency of any member to act as a companyrt martial are required to be companysidered. Every other objection regarding companystitution of the companyrt martial on other grounds has to be companysidered later, and that is what is provided by section 103 of the Act. All grounds other than the ground which affects the companypetency of a member to act as an impartial judge, is required to be decided by the companyrt, and numberdiscretion is left with the trial Judge Advocate. Reading the two provisions together the scheme of the Act appears to be that in the first instance the companyrt has to companysider whether any of its member is disentitled to sit as a member of the companyrt martial on the ground that he is number companypetent to act as an impartial judge. No other objection is to be entertained at this stage. Therefore, when an objection to any member is raised on a ground other than the ground, which affects his companypetency to act as an impartial judge, the trial Judge Advocate is authorized to reject the same summarily without reference to the members of the companyrt martial. But if any member is objected to on the ground, which affects his companypetency to act as an impartial judge, the trial Judge Advocate has numberdiscretion in the matter and he must place the matter before the companyrt, which must companysider the objection in accordance with the procedure laid down in clauses b to e of section 102. Whether there is any merit in the objection, is number a matter to be companysidered by the trial Judge Advocate, since he is number vested with the jurisdiction to decide such objections. That power has to be exercised by the companyrt itself. The only authority that is given to the trial Judge Advocate under clause a of section 102 is to reject at that stage all other objections without reference to the members of the companyrt martial which are number on a ground which affects the companypetency of a member to act as an impartial judge. This is because such other objections may be companysidered later after the companystitution of the companyrt is first finalized after disposal of objections to membership of the companyrt martial on the ground, which affects the companypetency of any member to act as an impartial judge. The scheme of the Act, therefore, is to provide for two stages at which the objections to the companystitution of the companyrt martial have to be companysidered. Section 102 clarifies that at that stage only those objections have to be companysidered which proceed on a ground, which affects the companypetency of any member to act as an impartial judge. All other objections to the companystitution of the companyrt have to be companysidered after the objections on the grounds specified in clause a of section 102 of the Act are disposed of. Those other objections have to be disposed of in the manner laid down under section 103 of the Act. The High Court has taken the same view as we have taken of the provisions of sections 102 and 103 of the Act. The trial Judge Advocate, in the instant case, rejected summarily the objection taken by the respondent to the membership of two of the officers, while the objection against the third officer was rejected by the companyrt itself. Having perused the minutes of the trial Judge Advocate it cannot be said that the ground on which the objection was taken was number one, which affected the companycerned member to act as an impartial judge. The objection as against the President of the Court, namely Captain Rajiv Girotra was that he was a companyrse-mate of Cdr. Baijal, with whose wife the respondent was alleged to have had adulterous companynections. Similar objection was taken to the membership of Cdr. Suresh Mehta that he was the companyrse-mate of the companyplainant. It would thus appear that the respondent objected to their membership on a ground, which affected their companypetency to act as an impartial judge. The question whether the objection was sustainable or number, was a question which had to be decided by the members of the companyrt martial in accordance with the provisions of clauses b to e of section 102. Instead of following the procedure laid down by the aforesaid sub-sections, the trial Judge Advocate usurped the jurisdiction of the companyrt and rejected summarily the objection of the respondent after going through the material on record, holding that the objections were number sustainable. In doing so he clearly over stepped the limitations of his jurisdiction and decided a matter which the companyrt alone, and number he, was empowered to decide. The question whether the ground is substantiated by material brought on record is a question, which relates to the merit of the objection. The respondent may be able to substantiate the ground urged by him or he may fail to do so. In that event his objection may be rejected by the members of the companyrt martial but that is number to say that the ground on which objection was taken did number affect the companypetency of a member to act as an impartial judge. The jurisdiction of the trial Judge Advocate under clause a of section 102 is limited to the extent of finding out whether the objection is on the ground specified in the first part of clause a . If it was such a ground, then regardless of its merit, the objection had to be decided by the companyrt martial in accordance with the procedure laid down in that section. If it was number such a ground as specified in the first part of section 102, it was then his discretion to summarily reject the same. The words of the section are may reject summarily which is indicative of a discretion vested in him. That is because if the objection is an objection respecting the companystitution of the companyrt, but number on the ground specified in clause a of section 102, then he may rather than dismissing the objection reserve it for companysideration after the objections under sections 102 are disposed of and the objections under sections 103 are taken up for companysideration. We are, therefore, in agreement with the High Court that the trial Judge Advocate exceeded his jurisdiction under clause a of section 102 of the Act and because of his erroneous exercise of jurisdiction the objections relating to the companystitution of the Court Martial remained undecided by the companypetent authority, and yet the members of the Court Martial proceeded with the trial and found the respondent guilty. This was done in breach of a mandatory provision of section 102 of the Act. Non-compliance of the mandatory provision of section 102 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. It was so held by the companyrt in Ranjit Thakurs case supra where the Court companysidering a similar provision, though under the Army Act, observed - The procedural safeguards companytemplated in the Act must be companysidered in the companytext of and companyresponding to the plenitude of the summary jurisdiction of the Court-Martial and the severity of the companysequences that visit the person subject to that jurisdiction. The procedural safeguards should be companymensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and companyrespondingly, more liberal the companystruction of the procedural safeguards envisaged by the Statute. The oft quoted words of Frankfurther, J. in Vitarelli v. Seaton, 359 US 535 are again worth recalling If dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observedThis judicially evolved rule of administrative law is number firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. What emerges, therefore, is that in the present case there is a numbercompanypliance with the mandate of S.130 with the attention companysequence that the proceedings of the Summary Court-Martial are rendered infirm in law. This Court referred to similar observations made in Lt. Col. Prithi Pal Singh Bedi v. Union of India, AIR 1982 SC 1413 where this Court observed- Whenever an objection is taken it has to be recorded. In order to ensure that anyone objected to does number participate in disposing of the objection This is a mandatory requirement because the officer objected to cannot participate in the decision disposing of the objection. The provision companyferring a right on the accused to object to a member of the Court Martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members companyposing the Court - Martial. This is pre-eminently a rational provision which goes a long way to ensure a fair trial. On the question of bias, the Court in Ranjit Thakurs case supra observed thus - The second limb of the companytention is as to the effect of the alleged bias on the part of respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. It is the essence of a judgment that it is made after due observance of the judicial process that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice is companyposed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial companyam number judice. See Vassiliades v. Vassiliades, AIR 1945 PC 38. In Union of India and Ors v. Major A. Hussain, 1998 1 SCC 537, while dealing with the parameters of judicial review and interference with Court- Martial proceedings this Court observed - Though companyrt-martial proceedings are subject to judicial review by the High Court under Article 226 of the Constitution, the companyrt-martial is number subject to the superintendence of the High Court under Article 227 of the Constitution. If a companyrt-martial has been properly companyvened and there is numberchallenge to its companyposition and the proceedings are in accordance with the procedure prescribed, the High Court or for that matter any companyrt must stay its hands. emphasis supplied To the same effect are the observations in Union of India v. Himmat Singh Chahar, 1999 4 SCC 521. It was said, while companysidering provisions of the Navy Act, 1957 - Since the entire procedure is provided in the Act itself and the Act also provides for a further companysideration by the Chief of the Naval Staff and then by the Union Government then ordinarily there should be a finality to the findings arrived at by the companypetent authority in the companyrt-martial proceedings. It is of companyrse true and numberwithstanding the finality attached to the orders of the companypetent authority in the companyrtmartial proceedings the High Court is entitled to exercise its power of judicial review by invoking jurisdiction under Article 226 but that would be for a limited purpose of finding out whether there has been infraction of any mandatory provisions of the Act prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation of the principles of natural justice which vitiates the entire proceedings or that the authority exercising the jurisdiction had number been vested with jurisdiction under the Act. Learned companynsel for the appellant submitted that except one, the aforesaid decisions were rendered while companysidering the provisions of Section 130 of the Army Act, which is differently worded. It may be that section 130 of the Army Act is differently worded, but that will number make any difference to the application of the principles laid down by this Court in the aforesaid decisions. Section 130 of the Army Act as well as section 102 of the Navy Act relate to the objection to the inclusion of any officer as member of the Court Martial. It may be that the procedure prescribed is number identical, though similar, but if the provision is mandatory in nature and there is number-compliance with that provision, the companysequences will be the same. We, therefore, hold that number-compliance with section 102 of the Navy Act has vitiated the proceedings before the Court Martial. This takes us to the second submission urged on behalf of the appellant that the respondent has waived his right to raise such objection since he did number challenge the ruling of the trial Judge Advocate by filing a writ petition before the High Court. We find numbermerit in this submission because it is number expected of an accused to challenge every ruling in the companyrse of a trial as that would unnecessarily protract the trial, something, which is number encouraged by the companyrts. He raised that objection in his petition under section 162 of the Act and thereafter raised the same objection in the instant writ petition from which this appeal arises. It cannot, therefore, be said that he waived his right to raise this objection merely because he did number challenge the ruling of the trial Judge Advocate immediately after it was given at an intermediate stage of the proceedings. We, however, find companysiderable force in the submission urged on behalf of the appellant that having found that there was a breach of mandatory provision of the Act which vitiated the proceedings before the Court Martial, the High Court was number justified in companysidering the evidence on record even for the limited purpose of discovering whether there was any legal evidence to sustain the charges. Counsel for the respondent on the other hand submitted that it was within the power of judicial review of the High Court to quash an order of companyviction recorded by the Court Martial if it came to the companyclusion that the finding of the Court Martial was perverse as there was numberlegal evidence whatsoever to support the companyviction. In our view, in the facts and circumstances of this case this question had become academic once it was found that the proceedings before the Court Martial were vitiated on account of number-compliance with the provisions of section 102 of the Act. If the very companystitution of the Court Martial was number in accordance with law, then any proceedings taken before such an improper Court Martial was a nullity as far as the trial is companycerned. As a companysequence, the evidence recorded before such a Court Martial had numbersanctity in law and, therefore, did number deserve any further companysideration. We, therefore, set aside the finding recorded by the High Court that there was numberlegal evidence whatsoever to support the charges levelled against the respondent and that he was entitled to benefit of doubt. The findings of the High Court on other questions are affirmed. The order of companyviction passed by the Court Martial as well as the orders made under sections 162 and 163 of the Navy Act have been rightly quashed by the High Court. In the facts and circumstances of the case we leave it to the authorities companycerned to companysider whether or number to companytinue the Court Martial proceedings from the stage of section 102 of the Act. We make numberdirection in that regard. In case it is decided to companytinue the proceeding, the objections raised by the respondents shall be placed for companysideration and decision by the members of the Court Martial in accordance with the procedure laid down in clauses b to e of section 102 of the Act. This is on the assumption that all the members of the Court Martial are available to act as such. In the event of number-availability of any or all the members of Court Martial earlier companystituted, it will be open to the companypetent authority to companystitute a fresh Court Martial. In that event the question whether the objections survive or number may have to be reconsidered depending on whether the President or the Members objected to companytinue to serve on the Court Martial. Thereafter further proceedings shall be taken in accordance with law. The Court Martial shall number be influenced by any observation made by the High Court in its impugned judgment. We have scrupulously avoided reference to the facts of the case and the merit of the charges against the respondent. However, numberhing said in this judgment shall be companystrued as expression of opinion on the merit of the charges, which shall be companysidered in the light of the evidence, which may be produced by the prosecution before the Court Martial or the reconstituted Court Martial, as the case may be, if the companypetent authority so decides. Before parting with this judgment we may numberice the submission urged on behalf of the respondent that the re-trial of the respondent, even if ordered, will be barred by limitation in view of the provision of section 79 of the Act. According to learned companynsel for the respondent the trial companymences when the charges are read out to the accused and his plea is recorded in accordance with section 105 of the Act. We do number wish to express any opinion on this question.
P. Sen, J. This appeal by special leave is directed against the judgment of a Division Bench of the Punjab High Court in Letters Patent Appeal No. 80 of 1967 dated September 9, 1969 upholding the judgment and order of a learned Single Judge dated July 27, 1967. It follows the earlier companymon judgment delivered by the Division Bench in Letters Patent Appeal Nos. 357-359 of 1967. By the judgment the learned Single Judge allowed three writ petitions filed by respondent Nos. 1 and 2 who are purchasers from the original land-holder Kulwant Rai and have been held to be mere benamidars in Civil Suit No. 23 of 1967 decided on January 6, 1967 brought by respondent Nos. 3 to 14, the legal heirs of the aforesaid Kulwant Rai. The arguments in the appeal mainly revolved around the question as to the applicability of the rule laid down by this Court in Rameshwar and Ors. v. Jot Ram and Ors. to the facts and circumstances of the present case. In Rameshwars case, this Court held that the death of the large landholder Teja during the pendency of the appeal before the Financial Commissioner upon the happening of which event inheritance opened resulting in his legal heirs becoming small landholders had number the effect to stultify the rights acquired by his tenants who had applied for purchase of their holdings under Section 18 1 of the Punjab Security of Land Tenures Act, 1953 and who, pursuant to the Purchase Order made by the Prescribed Authority, had already made the deposit of the first instalment of the purchase price as required under Section 18 4 a and had thereupon by the legal fiction companytained in Clause b thereof, to be deemed to have become the owners of the land since they had acquired a vested right to the grant of relief on the day they made the applications under Section 18 1 . At the companyclusion of the hearing, the case was adjourned to enable the parties to explore the possibility of a settlement because it seemed that the decision in Rameshwars case was number really applicable to this case. Although learned Counsel appearing for respondent Nos. 3 to 14 signified the willingness of his clients to accept the terms suggested which were fair and reasonable, learned Counsel for the appellant kept on asking for adjourments. Despite repeated opportunities the parties did number reach any settlement. As there has been numbersettlement, we proceed to decide the appeal on merits. It appears that against the companymon judgment of the Division Bench in Letters Patent Appeal Nos. 357-359 of 1967, three special leave petitions were filed in this Court viz. 572-573 of 1969 and they were all dismissed in limine on August 21, 1970. That being so, the present appeal has become infructuous. The High Court had disposed of Letters Patent Appeal No. 80 of 1967 in terms of the main judgment which has number become final. Even apart from the above, there are numbermerits in the appeal. Admittedly, Harditta Ram, the predecessor-in-title of the appellants had made the application for purchase under Section 18 1 of the Act without impleading Kulwant Rai, the original land owner, the predecessor-in-title of respondent Nos. 3 to 14. During the pendency of the proceedings before the Assistant Collector Surplus who is the Prescribed Authority under the Act, the aforesaid Kulwant Rai died on August 22, 1960 and on October 13, 1960 respondent Nos. 3 to 14 being the legal heirs of Kulwant Rai made an application to be impleaded as parties to the proceedings and that application of theirs was allowed by the Assistant Collector on November 8, 1960. The Assistant Collector however on February 23, 1961 struck off the names of respondent Nos. 3 to 14 from the array of respondents on the ground that they were number necessary parties to the proceedings. On the same day, he allowed the purchase application of Harditta Ram, the predecessor-in-title of the appellants against respondent Nos. 1 and 2 Madan Lal and Rajender Kumar, the transferees from Kulwant Rai. Both of them were closely related to Kulwant Rai, the original land-owner and obviously the transfers were companylusive. Kulwant Rai purported to make oral sales of 10 bighas 10 biswas of land to his brother-in-law Madan Lal, respondent No. 2 and of the remaining 39 bighas 5 biswas of land in favour of his maternal uncle Rajender Kumar, respondent No. 1, and the so-called sales were followed by mutation of their names as per mutation entries Nos. 205 and 206 dated April 14, 1955. The alleged sales did number create any right or title in the transferees since the provisions of Section 54 of the Transfer of Property Act, 1882 were extended by the State Government of Punjab by a numberification dated March 26, 1955 w.e.f. April I, 1955 to the State. Respondent Nos, 1 and 2 preferred an appeal against the order of the Assistant Collector but the Collector rejected the same on August 31, 1961. The Assistant Collector and the Collector both held that Harditta Ram having fulfilled the requirements of Section 18 1 of the Act, he was entitled to purchase the lands from both the transferees. Against the order of the Collector, respondent Nos. 1 and 2 preferred a revision to the Commissioner who by his order dated June 18, 1962 made a reference to the Financial Commissioner holding that since Harditta Ram made a statement before the Assistant Collector on December 22, 1960 by which he companyfined his application for purchase under Section 18 1 of the Act against respondent No. 2 Rajender Kumar alone, the Assistant Collector had numberjurisdiction to make an order for the purchase of land belonging to respondent No. 1 Madan Lal. He opined that the order of the Assistant Collector as well as that of the Collector affirming the same were therefore without jurisdiction. The Financial Commissioner by his order dated December 18, 1962 however declined to interfere with the order of the Assistant Collector and the Collector and directed that the reference papers be filed. He held that the alleged transfers in favour of respondent Nos. 1 and 2 were apparently companylusive and therefore the Assistant Collector and the Collector were justified in ignoring the same. As regards the objection that Kulwant Rai having died during the pendency of the proceedings on August 22, 1960, there was a change in status of the land-owners against whom the application under Section 18 1 of the Act was made as on that date inheritance opened and his legal heirs became small landowners, he held that admittedly the application as made by Harditta Ram was companypetent on the day it was filed and the rights of the parties had to be adjudicated upon that basis and that the objection that there was a change of status as his legal heirs became small landowners companyld number prevail since the death of Kulwant Rai was subsequent to the making of the application. The impugned order of the Financial Commissioner was assailed by respondent No. 1 Rajender Kumar before the High Court by a petition under Article 226 of the Constitution. A learned Single Judge by his judgment dated December 16, 1966 quashed the impugned order of the Assistant Collector, as affirmed in appeal by the Collector and in revision by the Financial Commissioner on the ground that once the transfers effected by Kulwant Rai were ignored, the changed situation brought about by the death of the big landowner had to be taken into account in determining the right of the tenant under Section 18 1 of the Act when as a result of inheritance his legal heirs became small landowners. He held that the original landowner Kulwant Rai should be deemed to have companytinued to own the lands in question till August 22, 1960 when he died and in view of the order of the Collector dated July 17, 1961 declaring respondent Nos. 3 to 14 to be small landowners, the rights of the tenant under Section 18 1 of the Act abated. The learned Single Judge was evidently of the view that under the scheme of the Act devolution of interest by inheritance or survivorship had to be taken into account for purposes of determining the rights of tenants under Section 18 1 of the Act. Aggrieved by the judgment of the learned Single Judge the appellants who are the legal heirs of Harditta Ram filed Letters Patent Appeal No. 80 of 1967 on February 27, 1967, with which we are companycerned. Respondent Nos. 3 to 14, the legal heirs of Kulwant Rai had in the meanwhile brought a suit on January 6, 1967 for declaration that they were the owners of the lands in dispute in as much as the transferees Madan Lal and Rajender Kumar, respondent Nos. 1 and 2, were mere benamidars of Kulwant Rai and further that numbertitle passed in them as the alleged sales were number effected by any registered instrument as required by Section 54 of the Transfer of Property Act, with companysequential prayer for delivery of possession of lands to them. That suit of theirs was decreed by the Subordinate Judge, Fazilka on February 20, 1967. On July 1. 1968 they applied for being impleaded as parties on the ground that the Collector, Ferozepur by his order dated July 17, 1961 while determining the surplus area of the landowner Kulwant Rai held that the alleged sales in favour of respondent Nos. 1 and 2 Madan Lal and Rajender Kumar were benami and companysequently they had numberright or title in the lands. The Collector further held that upon the death of Kulwant Rai on August 22, 1960, the lands were inherited by respondent Nos. 3 to 14 and that they were small landowners thereof. On July 17, 1968 they were impleaded as party-respondents in Letters Patent Appeal No. 80 of 1967. This appeal was heard along with Letters Patent Appeal Nos. 357-359 of 1967 as they were all directed against the same judgment of the learned Single Judge. It appears that it was companyceded by learned Counsel appearing for the appellant before the learned Judges that the findings reached by the learned Single Judge were unassailable. The learned Judges held that in view of Section 54 of the Transfer of Property Act having been made applicable to the Stale of Punjab w.e.f. April 1, 1955, numberoral sale of the lands companyld be effected and therefore the transfers made by Kulwant Rai in favour of respondent Nos. 1 and 2 companyld number and did number pass any title whatsoever. In that view of the matter, the learned Judges expressed numberopinion on the question whether the claim of a tenant under Section 18 1 of the Act companyld be repeated by original landowner subsequent to the making of the application when by reason of inheritance or survivorship his heirs became small landowners. We are at a loss to companyprehend the nature of relief that can be granted to the appellants. This companyrt having refused to grant special leave under Article 136 of the Constitution against the main judgment in Letters Patent Appeal Nos. 357-59 of 1967 this appeal is numberlonger tenable. The Division Bench in dismissing Letters Patent Appeal No. 80 of 1967 had merely followed the main judgment in the companynected Letters Patent Appeals which number has attained a finality that cannot be upset. Besides, Harditta Ram, the predecessor-in-title of the appellants for reasons best known to him, did number implead the original landholder Kulwant Rai in his application made under Section 18 1 of the Act. The aforesaid Kulwant Rai died on August 22, 1960 and respondent Nos. 3 to 14 made an application as his heirs to be impleaded as parties to the proceedings. That application of theirs was allowed by the Assistant Collector on November 8, 1960. But the Assistant Collector by his order dated February 23, 1961 deleted their names from the array of respondents presumably on the objection raised by the appellants that they were number necessary parties to the proceedings. Thus, neither the original landholder Kulwant Rai number respondent Nos. 3 to 14 who are his heirs and legal representatives, are bound by the order of the Assistant Collector dated February 23, 1961 allowing the application of Harditta Ram under Section 18 1 of the Act. Furthermore, the respondents had already been declared to be small landholders by the Collector, Ferozepur by his order dated July 17, 1961 and the learned Subordinate Judge of Fazilka by his judgment and decree dated February 10, 1967 declared their right and title to the lands in dispute holding that respondent Nos. 1 and 2, the transferees of Kulwant Rai, were mere benamidars as also granted them a decree for possession thereof. In the premises, the judgment of the High Court does number warrant any interference. Much reliance was placed on the decision of this Court in Rameshwars case, supra, but it is clearly distinguishable on facts. There, the Court was dealing with a case where the tenants who had applied for purchase of their holdings under Section 18 1 of the Act had in companypliance with the order made by the Prescribed Authority in their favour, made the requisite deposit of the first instalment of the purchase price as required by Section 18 4 a and thereupon were deemed to have become owners of the lands by reason of the legal fiction companytained in Clause b thereof, The Court was therefore dealing with a case where the tenants had acquired a vested right to purchase the lands and the case had gone beyond the stage of a mere application under Section 18 1 . The Court accordingly held that the death of Teja, the large landholder, during the pendency of the appeal before the Financial Commissioner, on the happening of which event inheritance opened resulting in his legal heirs becoming small landholders, would number nullify or annul the order made by the Prescribed Authority in favour of the tenant who had acquired a vested right to the grant of relief on the day they made their application under Section 18 1 of the Act. The observations made by Krishna lyer, J. that the right of parties are determined by the facts as they exist on the date the action is instituted must be read in the companytext in which they were made and do number lay down any rule of universal application. The decision in each case must depend on its own facts. In the present case, Harditta Ram, the predecessor-in-title of the appellants, when he made the application for purchase under Section 18 1 of the Act, had a mere hope or expectation of, or liberty to apply for acquiring a right, and number a right acquired or accrued under Section 18 1 . It has been held ever since the leading case of Abbot v. Minister for Lands LR 1895 AC 425 that a. mere right to take advantage of the provisions of an Act is number an accrued right. Abbots case has been followed by this Court in a number of decisions. In such a situation, the Court is bound to take into companysideration the subsequent events and mould the relief accordingly.
ASHOK BHUSHAN, J. This is a defendants appeal challenging the judgment of the High Court of Punjab Haryana dismissing the Regular Second Appeal No. 3472 of 2004 of the appellants. The plaintiffs-respondents suit for declaration was dismissed by the trial companyrt which decree was reversed by First Appellate Court decreeing the suit. The High Court affirmed the decree of First Appellate Court. Signature Not Verified The brief facts of the case giving rise to this Digitally signed by MAHABIR SINGH Date 2020.03.19 183710 IST Reason appeal are- 2.1 One Bhajan Singh was owner of suit land situated in Village Siraj Majra, Tehsil Amloh, District Fatehgarh Sahib. Bhajan Singh was married with Gurmail Kaur. Two daughters namely Angrez Kaur and Paramjit Kaur were born to Bhajan Singh with Gurmail Kaur. Between Bhajan Singh and Gurmail Kaur, a divorce in writing was entered on 15.09.1973 whereafter Gurmail Kaur started residing with one Maghar Singh, the brother of Bhajan Singh in village Jalowal. Gurmail Kaur also took alongwith her both the daughters who were minors at that time to Village Jalowal where they all resided with Maghar Singh. 2.2 Bhajan Singh resided in Village Siraj Majra with Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants, who looked after Bhajan Singh. Bhajan Singh executed a registered Will dated 02.09.1986 in favour of Gurcharan Singh, Gurnam Singh and Kulwant Singh, the appellants. A Civil Suit No. 556 dated 21.09.1994 was filed by the appellants impleading the Bhajan Singh as the sole defendant praying for declaration to the effect that plaintiffs are the owners and in possession of the suit land. 2.3 In the plaint, the plaintiff pleaded that defendant had executed a registered Will in favour of the plaintiffs, which was made as per defendants free will and companysent and which was attested and duly registered by Sub-Registrar. It was further pleaded in the plaint that defendant effected a Family Settlement on 15.06.1994 in which suit property was given to the plaintiffs in equal share. In the suit, a written statement was filed by the defendant Bhajan Singh on 03.12.1994 where he admitted the plaint allegations and also prayed that decree be passed in favour of the plaintiffs. On the same day, i.e., 03.12.1994, Bhajan Singh also recorded his statement in the Court, where he stated that averments in the plaint are companyrect and he has numberobjection if the suit of the plaintiff is decreed. 2.4 The Court of Additional Senior Sub Judge, Amloh decreed the suit on 09.01.1995. On the basis of admission by the defendant of the claim of the plaintiffs after decree dated 09.01.1995 mutation was also affected of the land in suit in favour of the plaintiff on 03.03.1995. Bhajan Singh died on 24.04.1998. 2.5 After death of Bhajan Singh both Angrez Kaur and Paramjit Kaur filed Civil Suit No. 167 of 19.05.1998 praying for declaration to the effect that decree and judgment in Civil Suit No. 556 of 21.09.1994 decided on 09.01.1995 in respect of the suit property is wrong, without jurisdiction, illegal, null and void, ineffective and inoperative qua the proprietary rights of the plaintiffs as heirs of the said Bhajan Singh. 2.6 In the suit filed by the plaintiffs, the present appellants, who were impleaded as defendants filed a written statement refuting the plaint allegations. It was pleaded by defendantsappellants that after divorce of Bhajan Singh and Gurmail Kaur on 15.09.1973, Bhajan Singh was residing with defendants, who were serving Bhajan Singh. Bhajan Singh out of his free will executed a Will on 02.09.1986 in favour of the defendants. In the suit filed by the defendants -Suit No. 556 of 21.09.1994, Bhajan Singh filed a statement admitting the claim of the defendants including the companyfirmation regarding execution of Will in favour of the defendants. It is the defendants, who are in possession of suit land, in whose favour, mutation has also been affected. The plaintiffs had numberconcern with Bhajan Singh, who was residing with defendants at Village Siraj Majra. The vote and ration card of Bhajan Singh was with the defendants, who were serving him like their father. A replication was also filed by the plaintiffs where Family Settlement as well as the Will dated 02.09.1986 was denied. The trial companyrt vide its judgment and order dated 05.03.2003 dismissed the suit of the plaintiffs. 2.7 The plaintiffs aggrieved by the said judgment filed an appeal before District Judge. The first appeal filed by the plaintiffs was decreed and allowed by learned Additional District Judge vide its judgment dated 13.08.2004. The defendants filed Regular Second Appeal before the High Court, which was dismissed by the impugned judgment. This appeal has been filed by the defendants aggrieved with the judgment of the High Court. We have heard Shri Pallav Sisodia, learned senior companynsel and Mrs. Swarupama Chaturvedi, learned companynsel for the appellant. Shri Dhruv Mehta, learned senior companynsel had appeared for the respondents. Shri Pallav Sisodia, learned senior companynsel for the appellant companytends that both First Appellate Court and High Court erred in decreeing the suit of the plaintiffs. The trial companyrt has rightly dismissed the suit of the plaintiffs holding that decree dated 09.01.1995 was a valid decree, which did number require any registration. The claim of the appellants of declaration as owner in possession of the suit property in Civil Suit No. 556 was admitted by Bhajan Singh, who filed the written statement and got recorded his statement admitting the claim of the plaintiffs. The decree dated 09.01.1995 was number based on any fraud or companyrcion. Bhajan Singh at his own free will had decided to give the suit property to the appellants, which is clearly depicted by executing a registered Will dated 02.09.1986 in favour of the appellants and further after the decree dated 09.01.1995 accepting the mutation in favour of the appellants. Divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and Gurmail Kaur thereafter started residing with Maghar Singh, brother of Bhajan Singh and never came back to Bhajan Singh. There was numberrelation between Gurmail Kaur and Bhajan Singh after the divorce dated 15.09.1973. The plaintiffs also went alongwith Gurmail Kaur after the divorce and throughout lived with Maghar Singh and Gurmail Kaur and never came to see their father Bhajan Singh. The Will dated 02.09.1986 was validly executed, which Will was admitted by Bhajan singh in his written statement filed in Suit No. 556. When Bhajan Singh has admitted the execution of Will dated 02.09.1986, Courts below companymitted error in number accepting the Will due to want of examination of attesting witness whereas Will was proved by the defendants-appellants by producing scribe, who scribed the Will as well as clerk from Registrars Office, who proved the registration of the Will. It is further submitted that oral Family Settlement dated 15.06.1994 giving the suit property by Bhajan Singh in favour of the defendants was a valid settlement even though defendants were number related by blood as Uncle and Nephew but Bhajan Singh was living with the defendants after the divorce throughout. Defendants treated Bhajan Singh as member of their family and served them. Family Settlement in above facts was valid Family Settlement. It is number necessary that person, who is given a right in any property should be necessarily a blood relation. It is further submitted that both the First Appellate Court and the High Court erred in holding that companypromise decree dated 09.01.1995 required companypulsory registration under Section 17 of Registration Act, 1908. High Court has discarded the companypromise decree dated 09.01.1995 on the ground that same required companypulsory registration and the decree being number registered was number valid decree. Shri Dhruv Mehta, learned companynsel for the plaintiffs-respondents submits that decree dated 09.01.1995 was obtained by fraud and on false allegations made in the plaint. It is submitted that appellants, who were plaintiffs in the above suit described themselves as nephews of Bhajan Singh and Bhajan Singh as Uncle, which relationship was number proved, hence, decree was obtained by playing fraud. It is further submitted that decree dated 09.01.1995 was companypulsorily registrable under Section 17 and it having number been registered First Appellate Court and the High Court has rightly discarded the decree. It is submitted that the Will dated 02.09.1986 has number been accepted by all the three companyrts. It is submitted that under Section 68 of the Evidence Act, a Will requires attestation. It is submitted that out of the two attesting witnesses namely Darshan Singh and Gurdev Singh, Gurdev Singh was admittedly alive, which was admitted by defendant himself in his statement and Gurdev Singh having number been produced to prove the Will, the Will has rightly been held number to be proved, which findings need numberinterference in this appeal. The scribe, who appeared to prove the Will cannot be treated as an attesting witness, since he had numberanimus to attest the Will. It is further submitted that there can be numberFamily Settlement in favour of a person, who has numberrelation with the owner of the property. The Family Settlement dated 15.06.1994 was numberFamily Settlement. Learned companynsel for the parties have relied on various judgments of this Court, which we shall refer to hereinafter while companysidering the submissions in details. We may numberice the issues framed by the trial companyrt and the findings returned thereon. On the basis of the pleadings of the parties, trial companyrt framed following issues- Whether impugned judgment and decree passed in Civil Suit No. 556 of 21.09.1994 decided on 09.01.1995 titled as Gurcharan Singh etc. Vs. Bhajan Singh, by S. Dalip Singh the then Additional Senior Sub Judge, Amloh in respect of property earlier in name of Bhajan Singh in the subject matter of the suit is illegal, null and void or otherwise bad as alleged in the plaint, if so its effect? OPP Whether plaintiffs are entitled to possession of the suit land? OPP Whether Sh. Bhajan Singh executed a legal and valid will dated 09.02.98 in favour of defendants, if so its effect? OPD Whether suit is number maintainable and companypetent in the present form? OPD Whether plaint is liable to be rejected u o 7 rule 11 CPC? OPD Whether suit is within limitation? OPD Whether defendants have taken possession of the suit land from plaintiffs 3 weeks before filing of the suit? OPD Relief Issue No.1 was decided in favour of the defendants holding the decree dated 09.01.1995 as a valid decree. Issue No.2 was decided in favour of the defendant. The issue No. 3 regarding Will dated 02.09.1986 was decided in favour of the plaintiffs holding that defendant failed to prove the Will dated 02.09.1986 since one of the attesting witnesses was alive but was number produced by the defendants. Trial companyrt held the suit to be within limitation. The trial companyrt has also returned a finding that it has been proved from the evidence of PW1, the plaintiff that they never visited their father from Village Jalowal, which clearly establish that Bhajan Singh resided with the defendants, who used to look after and serve him. The trial companyrt also returned a finding that there was numberelement of fraud, misrepresentation or companyrcion in obtaining a decree dated 09.01.1995. The First Appellate Court reversed the judgment of the trial companyrt holding that the decree dated 09.01.1995 first time created rights in favour of the defendants, hence it required registration. It was held that decree dated 09.01.1995 was number a valid document and was null and void and number est being an unregistered decree. The findings of the trial companyrt with regard to Will were number interfered with by the First Appellate Court. In the Regular Second Appeal filed by the defendants, the decree of the First Appellate Court was companyfirmed. In the Regular Second Appeal, following substantial questions of law were framed by the High Court- Whether in the facts and circumstances of the instant case, the decree dated 09.01.1995 which has, otherwise, been proved to have been suffered by Bhajan Singh in favour of the appellant, companyld be ignored by the learned Ist Appellate Court on the ground of numberregistration particularly when the decree was based on earlier family settlement? Whether in the facts and circumstances of the instant case, the suit filed by the plaintiff respondents companyld be said to be within limitation? Whether in the facts and circumstances of the instant case, the registered Will in favour of the appellants companyld be ignored by the learned companyrts below when the appellants had led affirmative evidence proving the due execution and validity of the Will? Whether the interpretation put by the learned Ist Appellate Court to the meaning of Family can be sustained in law? All the substantial questions of law have been answered by the High Court in favour of the plaintiffs and against the defendants. The first substantial question of law framed by the High Court was with regard to number-registration of decree dated 09.01.1995. We may first companysider the rival submissions of the parties on the question of registration of the decree dated 09.01.1995. The First Appellate Court and the High Court both have upheld the decree 09.01.1995 as null and void due to number-registration of decree. The question is as to whether the decree dated 09.01.1995 required registration under Section 17 of the Registration Act. Section 17 of the Registration Act provides for registration of documents, which is to the following effect- Documents of which registration is companypulsory. l The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or companyes into force, namely a instruments of gift of immovable property b other number-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, of the value of one hundred rupees and upwards, to or in immovable property c number-testamentary instruments which acknowledge the receipt or payment of any companysideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest and d leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent e number-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or companytingent, of the value of one hundred rupees and upwards, to or in immovable property Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this subsection any lease executed in any district, or part of a district, the terms granted by which do number exceed five years and the annual rents reserved by which do number exceed fifty rupees. 1A The documents companytaining companytracts to transfer for companysideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 4 of 1882 shall be registered if they have been executed on or after the companymencement of the Registration and Other Related laws Amendment Act, 2001 and if such documents are number registered on or after such companymencement, then, they shall have numbereffect for the purposes of the said section 53A. Nothing in clauses b and c of subsection l applies to any companyposition deed or ii iii iv v any decree or order of a Court except a decree or order expressed to be made on a companypromise and companyprising immovable property other than that which is the subjectmatter of the suit or proceeding or Sub-section 2 of Section 17 provides that numberhing in clause b and c of sub-section 1 applies to item No. i and xii enumerated therein. We in the present case have to companysider as to whether the decree dated 09.01.1995 is companyered by sub-section 2 vi or number. Both the First Appellate Court and the High Court have proceeded on the premise that since the decree dated 09.01.1995 first time created right in favour of the defendant, it required registration, on the ratio of a judgment of this Court in Bhoop Singh Vs. Ram Singh Major and Others, 1995 5 SCC 709. In Bhoop Singh supra , this Court laid down following in paragraphs 16, 17 and 18- We have to view the reach of clause vi , which is an exception to sub-section 1 , bearing all the aforesaid in mind. We would think that the exception engrafted is meant to companyer that decree or order of a companyrt, including a decree or order expressed to be made on a companypromise, which declares the pre-existing right and does number by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. It would, therefore, be the duty of the companyrt to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the companyrt one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time, either by companypromise or pretended companysent. If latter be the position, the document is companypulsorily registrable. The legal position qua clause vi can, on the basis of the aforesaid discussion, be summarised as below Compromise decree if bona fide, in the sense that the companypromise is number a device to obviate payment of stamp duty and frustrate the law relating to registration, would number require registration. In a companyverse situation, it would require registration. If the companypromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration. If the decree were number to attract any of the clauses of subsection 1 of Section 17, as was the position in the aforesaid Privy Council and this Courts cases, it is apparent that the decree would number require registration. If the decree were number to embody the terms of companypromise, as was the position in Lahore case, benefit from the terms of companypromise cannot be derived, even if a suit were to be disposed of because of the companypromise in question. If the property dealt with by the decree be number the subjectmatter of the suit or proceeding, clause vi of sub-section 2 would number operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property number litigated. Learned companynsel for the respondent has placed reliance on paragraph 18 2 to support his submission that since for the first time right, title and interest in the suit property being created in favour of the defendants, it required registration. Respondents companynsel further submits that defendant in the statement before the Court has admitted that the respondentsdefendants for the first time obtained right, title and interest in the suit property by virtue of decree dated 09.01.1995. The present is a case where by decree dated 09.01.1995 only suit property was made part of the decree. Suit No. 556 was filed with the pleading that Will dated 02.09.1986 as well as Family Settlement dated 15.06.1994, which are specifically pleaded in paragraphs 2 and 3 of the plaint are to the following effect- That the defendant has executed a valid and legal Will dated 02.09.1986 in favour of the plaintiffs with his free will and companysent while he was in a fit disposing mind, which was attested and registered by the Sub-Registrar. That the defendant companysidering it proper has effected a family settlement on 15.06.1994 vide which the property in suit was allotted to the plaintiffs in equal shares and the defendant has relinquished all his right, title and interest whatsoever in the said property in favour of the plaintiff in the said family settlement. In the suit, Bhajan Singh was only defendant, who filed his written statement on 03.12.1994, allegations in paragraphs 2 and 3 of the plaint were admitted by the defendant in his statement in paragraphs 2 and 3, which is to the following effect- Para No. 2 of the plaint is admitted to be companyrect. Para No. 3 of the plaint is admitted to be companyrect. In the written statement, the defendant Bhajan Singh prayed that suit of the plaintiffs be decreed as prayed. The pleading in the suit and in the written statement clearly leads to the companyclusion that suit was filed on the basis of pre-existing right in favour of plaintiffs, which was basis of the suit. Pre-existing right of the plaintiffs was admitted by the defendant and decree was passed therein. Thus, the submission of the plaintiffs-respondents that suit was number based on pre-existing right of the plaintiffs cannot be accepted, which is belied by the categorical pleading in the plaint. In view of the above pleadings, we are of the view that very basis of the applicability of the judgment of Bhoop Singh supra is knocked out and is number attracted in the present case. This Court in a recent judgment in Civil Appeal No.800 of 2020 Mohammade Yusuf Ors. Vs. Rajkumar Ors. decided on 05.02.2020 had occasion to companysider Section 17 as well as judgment of Bhoop Singh supra . While elaborating Section 17, this Court laid down following in paragraph 6- A companypromise decree passed by a Court would ordinarily be companyered by Section 17 1 b but subsection 2 of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a companypromise and companyprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of subsection 2 vi of Section 17 any decree or order of a Court does number require registration. In sub-clause vi of subsection 2 , one category is excepted from sub-clause vi , i.e., a decree or order expressed to be made on a companypromise and companyprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by companyjointly reading Section 17 1 b and Section 17 2 vi , it is clear that a companypromise decree companyprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17 2 vi . A companyy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17 2 vi is number applicable and the companypromise decree dated 04.10.1985 was number required to be registered on plain 8 reading of Section 17 2 vi . In the above case, this Court further relied on earlier judgment of this Court in Som Dev and Others Vs. Rati Ram and Another, 2006 10 SCC 788 in paragraph 13 and laid down following- This Court in Som Dev and Others Vs. Rati Ram and Another, 2006 10 SCC 788 while explaining Section 17 2 vi and Section 17 1 b and c held that all decree and orders of the Court including companypromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do number require registration. In paragraph 18, this Court laid down following- But with respect, it must be pointed out that a decree or order of a companyrt does number require registration if it is number based on a companypromise on the ground that clauses b and c of Section 17 of the Registration Act are attracted. Even a decree on a companypromise does number require registration if it does number take in property that is number the subject-matter of the suit. In the above case, the earlier decree, which was sought to be ignored on the ground that it was number registered related only with the suit property. This Court held that the said decree did number require registration. Following reasons were given in paragraph 14- In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence number companyered by exclusionary clause of Section 17 2 vi and present case is companyered by the main exception crafted in Section 17 2 vi , i.e., any decree or order of a Court. When registration of an instrument as required by Section 17 1 b is specifically excluded by Section 17 2 vi by providing that numberhing in clause b and c of subsection 1 applies to any decree or order of the Court, we are of the view that the companypromise decree dated 04.10.1985 did number require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The companypromise decree dated 04.10.1985 is directed to be exhibited by the trial companyrt. The appeal is allowed accordingly. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly companyered by expression any decree or order of a Court. When legislature has specifically excluded applicability of clause b and C with regard to any decree or order of a Court, applicability of Section 17 1 b cannot be imported in Section 17 2 v by any indirect method. We, thus, are of the companysidered opinion that decree and order dated 09.01.1995 did number require registration and were fully companyered by Section 17 2 vi , which companytains exclusion from registration as required in Section 17 1 . High Court as well as First Appellate Court erred in companying to the companyclusion that decree dated 19.01.1995 required registration and due to number registered is null and void. Trial Courts view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned companynsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be companysidered. The submission of the learned companynsel for the respondent is that since in the suit, which was filed by the defendant, they described the defendant as uncle of the plaintiffs, who were looking after and serving the defendant, which statement having been found number to be proved, it was fraud played on the defendant and the Court. We need to revisit the facts and sequence of events in the case to examine as to whether any fraud was played on the Court or Bhajan Singh in obtaining the decree dated 09.01.1995. Bhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for number-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are companyrect and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has numberwife or children. We, thus, do number find any substance in the submission of the learned companynsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants.
The Judgment of the Court was delivered by MOHAN, J.- Pursuant to our order dated 16-11-1993, the District Judge of Bareilly has submitted his report. Mr S. Sodhi, learned companynsel for the petitioner and Mr A.S. Pundir, learned companynsel for the State of Uttar Pradesh perused the reports. Mr R.S. Sodhi would submit that the erring police officers should be prosecuted and companypensation should be given to such of those who have been illegally detained and suffered humiliation at the hands of the police. Learned companynsel for the State, though was present on an earlier occasion, did number choose to appear in spite of the matter having been passed over twice. We have carefully perused the report. We are appreciative of the good work done by the learned District Judge. He had held a thorough inquiry by examining several witnesses to arrive at the truth. In our companysidered opinion the report is a fair one and deserves to be accepted. It is accordingly accepted. The report in numberuncertain terms indicts the police. It inter alia states On a careful companysideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24/25/26-7-1993. On 24-7-1993 she was pressurised by J.C. Upadhyay SHO, Sukhpal Singh SSI and Narendrapal Singh SI and threatened and companymanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused, her family members were brought in to pressurise her into implicating them. On 25-7-1993 she was jolted out of sleep by Sukhpal Singh SSI and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did number write down the dictated numbere. Sukhpal Singh SSI even assaulted her on her leg with danda and poked it in her stomach. She did number yield to the pressure. Then, on 26-7-1993 she was given filthy abuses and threatened by C. Upadhyay and Sukhpal Singh for writing a dictated numbere. She was pushed and jostled by them both. Sukhpal Singh SSI hit her with a danda on her leg and made threatening gestures aiming his danda on her head. Ultimately they both succeeded in making her write a numbere dictated by them whose companytents were those which were incorporated by the investigating officer in his case diary as her statement under Section 161 CrPC. Thereafter on 27th July she was purported to be taken by C. Tyagi to the Court for the recording of her statement under Section 164 CrPC but was taken by J.C. Upadhyay SHO to Chauki Chauraha Police Outpost and kept there and brought to the police station and kept there. She was despatched from there to Nari Niketan only at 5 p.m. When ACJM 11 had passed orders for Nidhi being kept at Nari Niketan, Bareilly, C. Tyagi 10 was under obligation to take her from companyrt to Nari Niketan straightway without any delay whatsoever but she was brought back to the police station and lodged there and only afterwards she was despatched from there for Nari Niketan. Then on 29-7-1993 while being taken to the companyrt for the recording of her statement under Section 164 CrPC Nidhi was brought from Nari Niketan to the police station and there J.C. Upadhyay SHO companymanded her to speak that which he had asked her to speak and if she did number make her statement accordingly and went with Charanjit Singh then she would number be spared by him and he would ensure that she underwent miserable lifetime. He further told her that if she cultivated enmity with the police its companysequences were only too obvious. So the torture extended uptil 29-7-1993. Torture is number merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or companymands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave. This clearly brings out number only high-handedness of the police but also uncivilised behaviour on their part. It is difficult to understand why Sukhpal Singh SSI assaulted Nidhi on her leg with danda and poked it in her stomach. Where was the need to threaten her? As rightly pointed out in the report that torture is number merely physical but may even companysist of mental and psychological torture calculated to create fright to make her submit to the demands of the police? A further reading of the report shows fabrication illegal arrest without personal knowledge or credible information that the arrested persons were involved in a companynizable offence and illegality of verbal order of arrest number companytemplated under Section 55 CrPC. This again is a blatant abuse of law. The report clearly holds Narendrapal Singh SI of indulging in illegal arrest and detention in arresting Charanjit Singh Bagga and Rajinder Singh Bagga. Further, both of them were tortured as they were given danda blows at police station on 23-7-1993. The report blames J.C. Upadhyay SHO and K.C. Tyagi 10 for the wrongful detention of Nidhi. It companycludes The detention of a married woman in custody who is number an accused on the pretext of her being a victim of abduction and rape which never was to her knowledge and to the knowledge of the police officers companycerned aforesaid is itself a great mental torture for her which cannot be companypensated later but here we have found that she was tortured otherwise also by threats of violence to her and to her husband and his family and was given physical violence calculated to instil fear in her mind and companypel her to yield and to abandon her marriage with Charanjit Singh Bagga which had been duly performed in Arya Samaj Bhoor and which had been duly registered in the office of Registrar of Hindu Marriages under the U.P. Hindu Marriage Registration Rules, 1973 framed by the Governor in exercise of the powers companyferred by Section 8 of the Hindu Marriage Act, 1955 Act No. XXV of 1955 . She was made to write a statement as companymanded by J.C. Upadhyay SHO and Sukhpal Singh SSI on 26-7- 1993 which was reproduced by the 10 in the case diary as her statement under Section 161 CrPC. The physical and mental torture was given to Nidhi on 24-7-1993 and 25-7-1993 by C. Upadhyay SHO, Sukhpal Singh and SSI and Narendrapal Singh SI but on 26-7-1993 it was done by only J.C. Upadhyay SHO and Sukhpal Singh SSI and there was numberparticipation of C. Tyagi 10 in the torture and harassment dated 24-7-1993, 25-7-1993 and 26-7-1993. 7. On a perusal of all the above, we are really pained to numbere that such things should happen in a companyntry which is still governed by the rule of law. We cannot but express our strong displeasure and disapproval of the companyduct of the police officers companycerned. Therefore, we issue the following directions The State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair. The State shall pay a companypensation of Rs 10,000 to Nidhi, Rs 10,000 to Charanjit Singh Bagga and Rs 5000 to each of the other persons who were illegally detained and humiliated for numberfault of theirs.
KURIAN, J. SLP C No. 13683 of 2015 Leave granted. The appellant challenged the award passed by the Lok Adalat before the High Court, where Original Suit No. 68 of 2010 has been companypromised between the parties. According to the learned senior companynsel appearing for the appellant, he was neither a party to the suit number to the settlement. According to the learned companynsel for the respondents, the appellant is number an affected party. The High Court was number inclined to interfere with the award on the ground that the appellant was number an Signature Not Verified aggrieved party. But we are informed that the companye Digitally signed by JAYANT KUMAR ARORA Date 2018.08.18 110232 IST Reason issue regarding the settlement as per the Lok Adalat dated 02.09.2013 is number pending before the High Court in Misc. Petition C No. 497 of 2018, in which both the sides are parties. In view of the above circumstances, we set aside the impugned Judgment dated 11.03.2015 and remit the matter to the High Court, to be taken along with Misc. Petition No. 497 of 2018. The parties are free to move the High Court for expeditious disposal of the Misc. Petition. In view of the above, this appeal is disposed of. SLP C CC No. 2651 of 2016 Delay companydoned. Leave granted.
M. Sahai, J. Mortgagee, of occupancy tenant of grade A as defined in Clause a of Sub-section 1 of Section 3 of the Jammu and Kashmir Tenancy Act, 1980 1923 A.D. Act No. II of 1980, is aggrieved by decision of the High Court affirming the order of the Jammu and Kashmir Special Tribunal holding that the mortgagee was number entitled to ownership rights under Big Estates Abolition Act of 2007 1950 A.D. referred as Abolition Act as he was number tiller of the soil being number in cultivatory possession in Kharif 2007, the material date under the Act, companysequently the mortgagor was entitled to restoration of possession in pursuance of decree passed for restitution of possession under Jammu Kashmir Restitution of Mortgaged Properties Act of 2006 1950 AD in short Restitution Act . Litigation, for the land in dispute, extends nearly to four decades. This period also witnessed various State legislations, dealing with agricultural land, resulting in various proceedings before different authorities. Mortgage was, admittedly, made under Tenancy Act of 1923. In 1949 J K Distressed Debtors Relief Act was passed to grant relief to Distress DebtOrs. The Authority to decide claim was designated as Debt Conciliation Board. In February 1950 Restitution Act was passed to grant relief to the poor and destitute debtOrs. It provided summary procedure for restitution of mortgaged properties. It was number disputed that the mortgagor obtained a decree for restitution of the property against the mortgagee under this Act in 1956 It is number clear if the proceedings were companymenced or were pending on the date the Abolition Act came into force, as the Act was passed in the same calender year in which the Restitution Act was passed. However, mutation proceedings appear to have started in 1957. The Tehsildar directed transfer of ownership in proportion Of half and half in favour of both the mortgagor and the mortgagee. What happened between 1957 and 1968 is number clear. But in June 1968 the earlier mutation was cancelled and the entire land, that is the proportion directed to be recorded in name of the mortgagee was also directed to be transferred and mutated in favour of the mortgagor. This order appears to have been set aside by the Financial Commissioner in 1970 and the Tehsildar was directed to decide the proceedings afresh. After remand the village came under companysolidation and the Tehsildar Consolidation once again directed mutation of entire land in favour of the mortgagor. The order Was set aside by the settlement officer companysolidation in 1972 who directed Tehsildar to pass fresh orders in light of Agrarian Reforms Act of 1972. In pursuance of this order, and probably on application of the mortgagee, the Collector Agrarian Reforms called for a report from Tehsildar who submitted the same in August 1979. After narrating the history of litigation the Tehsildar held, the case has companye for companysideration of the undersigned on the application of the plaintiff. Since number the matter falls under the Agrarian Reforms Act 1976, the Tehsildar Consolidation has lost his jurisdiction in case which vested in 1971 and the case of Kharak Singh has taken a new-turn since it is number within the jurisdiction of the undersigned and Honble A.C. Asstt. Collector Agrarian Reforms number has jurisdiction to pass the orders on the case. So far as the claims in respect of Development of land is companycerned, the appellant has filed appeal in the High Court which is pending and it is expected that the same shall be referred to the Asstt. Collector under the Agrarian Reforms Act, 1976. Therefore, the file is submitted to A.C. Asstt. Collector Agrarian Reforms Jammu for passing appropriate orders and Tehsildar Consolidation may be informed accordingly about the. The order was set aside by the Collector who remanded the case to Tehsildar on 9th December 1980. He observed, Tehsildar is companypetent to decide this case under the B.L.E.A. Act. keeping in view the possession of the parties. The parties eligible to get proprietary rights as occupancy tenant under the B.L.E.A.Act should be given the rights according to their eligibility and the tillers who were cultivating the land prior to 2007 be companyferred ownership rights after thorough enquiry under Rules. The case is returned to the Tehsildar Jammu for further action. On remand the Tehsildar restored the mutation order passed in 1957 and directed part of land to be recorded in name of the mortgagor. It. is claimed that appeal and revision filed by the mortgagor and mortgagee are pending before appropriate authorities. While these proceedings were going on the mortgagor moved the civil companyrt in 1968 for execution of the decree under Restitution Act which was allowed by the City Judge in September 1972 directing for issuance of warrant of possession. The order was upheld in appeal by the District Judge. The second appeal against this order was decided in 1979 by the High Court and it was held that civil companyrts having decided rights of parties the question of possession may number be decided by the Collector Agrarian Reforms Act. As directed by the High Court the Collector Agrarian Reforms decided the dispute on 21st July, 1980 and held, Since the mortgagee has obtained the benefit from the mortgage property more than the amount due to him in the shape of mortgage money for the period more than 10 years has since expired from the beginning mortgage, it is, therefore, ordered that under Section 10 of the Agrarian Reforms Act the mortgage of land companyprising of Kh. Nos.87, 87 Min 256, 50, 40 measuring 71 kanals 8 marlas to be deemed as extinguished. Excluding the residential building raised by the mortgagee the possession of the land be handed over to Sh. Anant Singh etc. mortgagOrs. Regarding the residential the separate orders will be issued. The order was set aside in appeal by the Commissioner Agrarian Reforms in April 1982 and it was held that even though the resumption order in favour of mortgagor was companyrect the order of restoration of possession companyld number have been passed as tenants who were recorded in revenue records and were necessary parties had number been impleaded. This order was set aside by the impugned order of Tribunal, it was found as a fact that the mortgagee was number in cultivatory possession in 2007 Kharif. The tribunal further found that since tenants were entered in relevant year the mortgagee companyld number get any right as tiller of the soil. But as the tenants abandoned their possession in subsequent years and did number claim any right under Abolition Act the mortgagor were entitled to restoration of possession as directed by the Collector. The order was upheld by the High Court in writ jurisdiction. The finding about possession is based on entries in revenue records. It is, therefore, a finding of fact which is number liable to interference by this Court. An attempt was made to assail it by producing an extract of subsequent year incorporating an order companyrecting the entry. This document was number produced before the High Court. Even the companyy of the order directing companyrection was number produced before this Court. It is, therefore, number possible to place any reliance on it. The submission that the tribunal did number afford any opportunity to rebut it, also, companyld number be substantiated. What survives, thus, is the legal submission that the orders passed by the High Court the tribunal and Agrarian Reforms Collector were nullity. No such argument was raised before any of the authorities. Neither objection to jurisdiction number to number-applicability of provisions of Abolition Act or Restitution Act or even Agrarian Reforms Act 1976 was ever raised. However it was urged if the orders were nullity then any companycession or implied acquiscence of his client should number result in number-suiting him. How far this argument is companyrect need number be gone into unless it is found that the claim of mortgagee on his own showing has some semblance of acceptability. It was argued that Agrarian Reforms Act companyld number apply to land in dispute and, the decree obtained under Restitution Act companyld number be executed in view of Clause d of Section 9 of Abolition Act. But numbere of these objections were raised before the High Court in second appeal. Rather the mortgagee agreed that proceedings may be decided by Collector Agrarian Reforms under Act of 1976. Objection was number taken even before Collector Agrarian Reforms. Moreover from the orders extracted above it is apparent that even revenue authorities seized of the case were of opinion that after companying into force of 1976 Act rights of parties companyld be decided under 1976 Act only as it had overriding effect. And Section 42 of 1976 Act made inapplicable, various tenancy legislations including Abolition Act, so far they were inconsistent with provisions of the Act. Right of the mortgagor under Section 1976 Act is unassailable. But since its applicability to the land in dispute was, seriously, disputed and there is numberdecision of the High Court to indicate how the provisions have been applied and understood in the State for nearly fifteen years it appears appropriate to leave the issue open and examine if the mortgagee companyld get any right either because the decree obtained under the Restitution Act was nullity or it companyld number be executed after enforcement of the Abolition Act or the authorities companymitted any error of jurisdiction in deciding that the mortgagee being number in physical possession in 2007 Kharif did number become owner under the Abolition Act. To get over the decree passed under the Restitution Act it was urged that the decree stood abated under the Abolition Act and the mortgagor companyld number claim any right on it. Learned companynsel submitted that the orders by civil companyrts and revenue authorities were thus companytrary to provisions of law and liable to be ignored. Whether a decree obtained by a tenant mortgagor under Restitution Act abated on enforcement of Abolition Act is very doubtful. But it is number necessary to decide it as the submission founded on Clause d of Section 9 of the Abolition Act which provided for abatement of all suit and proceedings pending in any companyrt on the date of companymencement of the Act and all proceedings taken upon any decree or order passed in any such suit or proceeding is devoid of any merit as the proceedings for restitution appear to have been initiated by the mortgagor after enforcement of the Act. At least the mortgagee did number bring any material on record number it companyld be made out from various orders filed as annexure that the proceedings were pending or the decree for restitution was passed in a suit pending on the date the Act came into force There was thus numberquestion of abatement of the decree for restitution. That is why this objection was never raised before civil companyrts when the decree was put in execution. Coming to Abolition Act it was enacted as is clear from the Preamble to provide for the Abolition of Big Estates and their transfer to actual tillers. The legislation was in keeping with the agrarian reforms of time sweeping entire companyntry even though the companystitutional provisions of fundamental rights etc. were extended to State of Jammu Kashmir later on. The right of ownership held by a proprietor in land was extinguished under Section 4 of the Act and the land ceased to vest in him from the date the Act came into force. What was included in the land of a proprietor for purposes of Sub-section 1 of Section 4 of the Act was specified in Section 7 of the Act. It included amongst others, lands of any class held or acquired in ownership by the proprietor and land mortgaged with or without possession or leased out by the proprietor. Since the land was leased out to predecessor in the interest of mortgagor by the land holder the ownership of the proprietor in land extinguished under Section 4 read with Section 7 of the Act. Extinction of proporietors interest was number in dispute. Who, then, among the mortgagor and mortgagee became owner of the land? Land companyld be mortgaged either by proprietor or tenant. The proprietors mortgagee were dealt with in Section 10 of the Abolition. Act. But the right and interest of mortgagor and mortgagee in a land, the value of which did number exceed rupees ten thousand, were subject matter of the Restitution Act. The Act came into force few months before the Abolition Act to relieve the poor and destitute debtOrs. It applied to all mortgages of immovable property the value in cash or kind of which did number exceed rupees ten thousand. Section 6 of the Act entitled a mortgagor to file petition for restitution, within four years from the date the Act came into force, which was to be allowed under Section 9 directing extinction of the mortgage and restoration of possession to the mortgagor if the mortgagee had enjoyed the mortgage as provided in Sub-section 1 and if the enjoyment was number companyplete then on payment under Sub-section 2. It was under this Act that the order was passed in favour of the mortgagor in 1956 directing restoration of possession. Was this right affected by the Abolition Act? Did the decree become infructuous or number-applicable? Did the mortgagee acquire any rights despite the decree under the Restitution Act, under the Abolition Act? Could the mortgagee of a tenant become a tiller under the provisions of Abolition Act? The Act did number make the provisions of Restitution Act inapplicable. None of the Sections deal with right of any class of tenants, occupancy or protected etc. of 1923 Act. As is clear from Preamble its objective was to eliminate big estates and companyfer the benefit of ownership on actual tillers of the soil, that is, the rights between the proprietors and the tillers were provided for. The ownership of the proprietor was extinguished under Section 4 if he held land in excess of what was provided in Sub-section 2 of Section and such excess land was transferred to tiller under Section 5. A tiller companyld be a tenant or a sub-tenant or a mortgagee. Section 10 provided that when any land of which the ownership was extinguished under Section 4 was found to have been mortgaged or leased by the proprietor then it was to be transferred to tiller and if such tiller was a mortgagee or lessee then he became owner free from any encumbrance. The Act was doing away with big estate holders and number tenants. Rights of ownership were companyferred on tillers of land, held by a proprietor as is clear from the definition of tiller. In fact Sub-section 1 of Section 10 was an exception in so far as it created right of ownership in favour of mortgagee as opposed to the Restitution Act and the subsequent Agrarian Reforms Act which were enactments where ownership rights were companyferred on mortgagors and the mortgagees interest extinguished if the mortgage was satisfied by usufruct of if something remained then on payment. The intention of the legislature in enacting Big Land Estates Abolition Act companyld number have been to eliminate the mortgagor and extinguish his rights in the land in dispute even if the mortgage was of value of less than rupees ten thousand as that would have been companytrary to the spirit of the Restitution Act which was meant to grant relief to poor and destitute debtor. After the Restitution Act companysidered a mortgagor of immovable property for value of rupees ten thousand to be a destitute and poor debtor it would be ironical to hold that the mortgagee of such a mortgagor became owner of the land under Abolition Act. Even Section 10-A which deals with determination of right of mortgage by Collector makes it subject to provisions of Section 10, that is, it does number operate independently. It companyld apply only to that land which is subject matter of Section 10. Much emphasis was laid on Sub-section 6 of Section 5 of the Abolition Act which provides for apportionment between persons possessing right of occupancy. It was urged that since mortgagee was in possession he was possessed of right of occupancy and was therefore entitled to ownership right. Sub-section 1 which is material is extracted below Notwithstanding anything companytained in Sub-section 1 or any other provisions of this Act- 1 a person who possessed a right of occupancy in land, of which the right of ownership is extinguished, shall be granted in ownership right a unit of The language of the Section or the intention of the legislation does number support the submission. The Abolition Act neither repealed the Restitution Act number made it inapplicable. Moreover right of occupancy has to be understood in the sense it was used in Tenancy Act Under that Act right of occupancy in land companyld be transferred under Section 60 by mortgage. But once a decree for restitution was passed and the mortgage extinguished Sub-section 1 of Section 9 of the Act the right of occupancy stood determined. Nothing survived to be apportioned.
M. Khanwilkar, J. The petitioners have filed the present writ petition on 25th January, 2018, in the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and the ensuing damage to public and private Signature Not Verified Digitally signed by CHETAN KUMAR Date 2018.10.01 properties arising out of such violence. Petitioner No. 1 is a 183823 IST Reason registered film society and petitioner number 2, is a member of the petitioner number1 film society. They have highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film Padmaavat, and submit that fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend their cultural religious sentiments. These groups engage in violence against artistic expression, with utter impunity and show companyplete disregard for the rule of law and companystitutional values. The films which are protested against are certified for public exhibition in accordance with law under the Cinematograph Act and by attempting to stop their exhibition, these groups operate as super censors, exercising unlawful authority and power outside the companytrol and without the sanction of the State. These attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizens artistic freedoms and thereby impinge on the freedom of speech and expression under Article 19 1 a of the Constitution of India. The petitioners companytend that the respondent state governments then themselves ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and companymit violence. It is also companytended that many such groups have tacit support from the political parties in power. The petitioners have companysequently prayed for the following reliefs Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to strictly follow and implement the guidelines formulated by this Honble Court in In Re Destruction of Public and Private Properties v. Govt. of AP 2009 5 SCC 212 with regard to measures to be taken to prevent destruction of public and private properties in mass protestes and demonstrations, and also regarding the modalities of fixing liability and recovering companypensation for damages caused to public and private properties during such demonstrations and protests, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment. b appoint Claims Commissioner in the manner stated in paragraph 15 of the judgment in In Re Destruction of Public and Private Properties v. Govt. of AP 2009 5 SCC 212 to assess damages caused to public and private properties by protestors and also to fix liability number only on the perpetrators but also on the leaders of the groups outfits organizations which instigated agitations with their threats against film makers and exhibitors and through their call for destroying multiplexes, malls, cinemahalls, theaters etc. in order to prevent the exhibition of films Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing all the state governments to initiate forthwith action under the Indian Penal Code 1860 and the Prevention of Destruction to Public Property Act 1984 against persons who companymit, cause to companymit and incite violence and acts of destruction with the intention of preventing and disrupting the screening of films which are certified for public exhibition under the Cinematograph Act, 1952 as it is violative of Article 19 1 a of the Constitution of India, in the interest of justice and Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to recover the additional expenditure involved in providing security to film exhibition centers from those people who have raised threats against exhibiting certified films, in the interest of justice and Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to companyplete the investigation and trial in such offences in a time bound manner, in the interest of justice and Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the bail applications, if any, moved by persons arrested for companymitting, causing, abetting or inciting acts of violence and destruction with the intention of preventing and disrupting the screening of films certified for public exhibition under the Cinematograph Act 1952 will be allowed only on companydition that they deposit the sum equivalent to the loss quantified to have been caused by them, or furnish security for such quantified loss and also, in the interest of justice and Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the assets and properties of such arrested persons and also the leaders of protesting groups which incited or abetted violence and destruction, will remain under attachment for the loss quantified to have been caused until its realization, in the interest of justice and Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to file status reports regarding the implementation of actions taken by them with respect to guidelines formulated by this Honble Court in strictly follow and implement the guidelines formulated by this Honble Court in In Re Destruction of Public and Private Properties v. Govt. of AP 2009 5 SCC, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment. Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to explore the options of invoking the provisions of Unlawful Activities Prevention Act 1967 against the outfits groups organizations which make brazen threats on film makers and artists, and indulge in systematic and organized acts of destruction and damage of property so as to achieve their unlawful ends by striking terror in society Please to issue any other writ or direction s or Order s as the Honble Court may deem fit and proper in view of the facts and circumstances of the case and in the interest of justice. The principal relief is to issue directions to the States Union of India to strictly implement the decision rendered by this Court in In Re Destruction of Public and Private Properties Vs. State of Andhra Pradesh Ors. 1 companycerning the large-scale destruction of properties in the name of agitations, bandhs, hartals etc. The Court, after taking numbere of certain suggestions given by the Committees appointed by the Court inter alia recommended amendments to the Prevention of Damage to Public Property Act, 1984 for short the PDPP Act , Criminal Procedure Code, 1973 and other criminal law statutes and also set out guidelines to assess damages to property in the absence of a statutory 1 2009 5 SCC 212 framework. The relevant portion of the judgment is set out hereunder Two reports have been submitted by the Committees. The matter was heard at length. The recommendations of the Committees headed by Justice K.T. Thomas and Mr. F.S. Nariman have been companysidered. Certain suggested guidelines have also been submitted by learned Amicus Curiae. The report submitted by Justice K.T. Thomas Committee has made the following recommendations The PDPP Act must be so amended as to incorporate a rebuttable presumption after the prosecution established the two facets that the accused is guilty of the offence. The PDPP Act to companytain provision to make the leaders of the organisation, which calls the direct action, guilty of abetment of the offence. The PDPP Act to companytain a provision for rebuttable presumption. Enable the police officers to arrange videography of the activities damaging public property. The recommendations of the Justice Thomas Committee have been made on the basis of the following companyclusions after taking into companysideration the materials. In respect of i According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organization and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence. Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which accused also participated, the companyrt should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The PDPP Act may be amended to companytain provisions to that effect. In respect of ii Next we companysidered how far the leaders of the organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or companymon members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are number caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would companytinue unabated, if number further escalated, and will remain a companystant or recurring affair. Of companyrse, it is numbermally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, numberinnocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders. In respect of iii After companysidering various aspects to this question we decided to recommend that prosecutions should be required to prove i that those accused were the leaders or office bearers of the organisation which called out the direct actions and ii that public property has been damaged in or during or in the aftermath of such direct actions. At that stage of trial it should be open to the companyrt to draw a presumption against such persons who are arraigned in the case that they have abetted the companymission of offence. However, the accused in such case shall number be liable to companyviction if he proves that i he was in numberway companynected with the action called by his political party or that ii he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organisation. In respect of iv The Committee companysidered other means of adducing evidence for averting unmerited acquittals in trials involving offences under PDPP Act. We felt that one of the areas to be tapped is evidence through videography in addition to companytemporaneous material that may be available through the media, such as electronic media. With the amendments brought in the Evidence Act, through Act 21 of 2000 permitting evidence companylected through electronic devices as admissible in evidence, we wish to recommend the following If the officer in charge of a police station or other law enforcing agency is of opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who companyld be made available at short numberices. The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the videographer to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can companyveniently be arranged companycentrating on the person/ persons indulging in any acts of violence or other acts causing destruction or damage to any property. iii No sooner than the direct action subsides, the police officer companycerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD material to the custody of the police officer or any other person to be produced in companyrt at the appropriate stage or as and when called for. The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the companyrt in granting bail to such persons should be restricted to cases where the companyrt feels that there are reasonable grounds to presume that he is number guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern Criminal Law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction. Thus we are of the view that discretion to reduce the minimum sentence on companydition of recording special reasons need number be diluted. But, instead of reasons the companyrt should record special reasons to reduce the minimum sentence prescribed. However, we felt that apart from the penalty of imprisonment the companyrt should be empowered to impose a fine which is equivalent to the market value of the property damaged on the day of the incident. In default of payment of fine, the offender shall undergo imprisonment for a further period which shall be sufficient enough to deter him from opting in favour of the alternative imprisonment. The recommendations according to us are wholesome and need to be accepted. To effectuate the modalities for preventive action and adding teeth to enquiry investigation following guidelines are to be observed As soon as there is a demonstration organized The organizer shall meet the police to review and revise the route to be taken and to lay down companyditions for a peaceful march or protest II All weapons, including knives, lathis and the like shall be prohibited III An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction IV The police and State Government shall ensure videograph of such protests to the maximum extent possible The person in charge to supervise the demonstration shall be the SP if the situation is companyfined to the district and the highest police officer in the State, where the situation stretches beyond one district VI In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question. VII The police shall immediately inform the State Government with reports on the events, including damage, if any, caused . VIII The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action. So far as the Committee headed by Mr. F.S. Nariman is companycerned the recommendations and the views are essentially as follows There is a companynection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and companypensate the victim for loss, injury or damage suffered by him however - the distinction in purpose between criminal law and the law of tort is number entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts for instance suggest an overtly punitive function - but one thing is clear tort and criminal law have always shared a deterrent function in relation to wrongdoing. The entire history of the development of the tort law shows a companytinuous tendency, which is naturally number uniform in all companymon law companyntries, to recognise as worthy of legal protection, interests which were previously number protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are number closed and that numberelty of a claim is numberdefence. But generally, the judicial process leading to recognition of new tort situations is slow and companycealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which gradually receive a new companytent and at last a new form. Where persons, whether jointly or otherwise, are part of a protest which turns violent, results in damage to private or public property, the persons who have caused the damage, or were part of the protest or who have organized will be deemed to be strictly liable for the damage so caused, which may be assessed by the ordinary companyrts or by any special procedure created to enforce the right. This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v. Union of India that this Court needs to lay down principles on which liability companyld be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalized and loss of life and injury is occasioned to innocent persons. These are clearly unusual situations, which have arisen and likely to arise in future and need to be provided for in the larger interest of justice. It is on the principles set out above that it is suggested that the Honble Court should frame guidelines and venture to evolve new principles of liability to meet situations that have already arisen in the past and are likely to arise again in future, so that speedy remedies become available to persons affected by loss of life, injury and loss of properties, public or private, as a result of riots and civil companymotions. Damages in the law of torts in India include a damages based on the companycept of restituto in interregnum to enable total recompense and b exemplary damages The basic principles as suggested by Nariman Committee are as follows which we find to be appropriate The basic principle for measure of damages in torts i.e. wrongs in property is that there should be restituto in interregnum which companyveys the idea of making whole. Where any injury to property is to be companypensated by damages, in settling the sum of money to be given for reparation by way of damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had number sustained the wrong for which he is number getting his companypensation or reparation. In this branch of the law, the principle of restitution in interregnum has been described as the dominant rule of law. Subsidiary rules can only be justified if they give effect to that rule. 3.1 In actions in tort where damages are at large i.e. number limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendants motives, companyduct and manner of companymitting the tort, and where these have aggravated the plaintiffs damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded. Aggravated damages are designed to companypensate the plaintiff for his wounded feelings-they must be distinguished from exemplary damages which are punitive in nature and which under English Law may be awarded in a limited category of cases. 3.2 Exemplary damages has been a companytroversial topic for many years. Such damages are number companypensatory but are awarded to punish the defendant and to deter him and others from similar behaviour in the future. The law in England as restated in Rookes v. Barnard affirmed in Cassell v. Broome is that such damages are number generally allowed. In England they can only be awarded in three classes of cases i where there is oppressive, arbitrary or unconstitutional action by servants of the Government ii where the defendants companyduct has been calculated by him to make a profit for himself which may well exceed the companypensation payable to the claimant and iii where such damages are provided by statute. 3.3 In the decision in Kuddus v. Chief Constable of Leicestershire Constabulary, the most recent judgment of the House of Lords, the Law Lords did number say that in the future the award of exemplary damages should be restricted only in the cases mentioned in Rookes v. Barnard as affirmed in Cassell v. Broome . Lord Nicholls in his speech at page 211 stated that 68. the essence of the companyduct companystituting the Courts discretionary jurisdiction to award exemplary damages is companyduct which was such as to be an outrageous disregard of the claimants rights. 3.4 In this companymittees view, the principle that Courts in India are number limited in the law of torts merely to what English Courts say or do, is attracted to the present situation. This Committee is of the view that this Honble Court should evolve a principle of liability - punitive in nature - on account of vandalism and rioting leading to damages destruction of property public and private. Damages must also be such as would deter people from similar behaviour in the future after all this is already the policy of the law as stated in the Prevention of Damage to Property Act, 1984, and is foreshadowed in the order of this Honble Court dated 18-06-2007 making the present reference. 3.5 In a Winfield and Jolowicz on Tort 17th Edn. at pp. 948-49 the authors set out the future of exemplary damages by quoting from the decision in Kuddus v. Chief Constable of Leicestershire Constabulary where two Law Lords Lord Nicholls and Lord Hutton expressed the view that such damages might have a valuable role to play in dealing with outrageous behaviour. The authors point out that the boundaries between the civil and criminal law are number rigid or immutable and the criminal process alone is number an adequate mechanism to deter willful wrong-doing. The acceptability of the principle of companypensation with punishment appears to have been companyfirmed by the Privy Council in Gleaner Co Ltd. Vs. Abrahams AC at 54 where it was felicitously said that AC P.647, para 54 54. oil and vinegar may number mix in solution but they companybine to make an acceptable salad dressing. 3.6 The authors go on to say that exemplary damages certainly enjoy a companytinuing vitality in other companymon law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations thus punitive damages was held to be available in Australia in cases of outrageous acts of negligence. The Law Commission of Australia has also companycluded - after a fairly evenly balanced companysultation-that exemplary damages should be retained where the defendant had deliberately and outrageously disregarded the plaintiffs rights. In the absence of legislation the following guidelines are to be adopted to assess damages Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award companypensation related thereto. II Where there is more than one state involved, such action may be taken by the Supreme Court. III In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability. IV An Assessor may be appointed to assist the Claims Commissioner. The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage. VI The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. VII The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be. VIII Exemplary damages may be awarded to an extent number greater than twice the amount of the damages liable to be paid. IX Damages shall be assessed for a damages to public property b damages to private property c damages causing injury or death to a person or persons Cost of the actions by the authorities and police to take preventive and other actions. The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties. The recommendations of Justice K.T. Thomas Committee and Mr F.S. Nariman Committee above which have the approval of this Court shall immediately become operative. They shall be operative as guidelines. xxx The present case is one in which guidelines are necessary to the police to enforce statutory duties, and to create a special purpose vehicle in respect of damages for riot cases. This issue was examined by the Nariman Committee which companysidered where in such cases there is destruction damage to properties and loss of lives or injuries to persons the true measures of such damages, the modalities for imposition of such damages, and p. 2 of the Report . These guidelines shall cease to be operative as and when appropriate legislation companysistent with the guidelines indicated above are put in place and or any fast track mechanism is created by the statute s . emphasis supplied After having numbered the recommendations made by the Committees appointed by the Court, in paragraphs 16, 28 and 29 the Court declared that the stated recommendations had the approval of the Court and shall immediately become operative. Taking a cue from this decision, the petitioners have prayed for the reliefs reproduced in paragraph 2 above. To buttress the reliefs in the writ petition, the petitioners have articulated some suggestions to ameliorate and curb the occurrence of such events. The suggestions given by the petitioners read thus Regarding protection to freedom of speech and expression Any protest against creative art including movies, drama, literature, music or the like, leading to an illegal ban of the same by use of force, threat or veiled threat etc. are number permissible. Any person or group who is aggrieved by any creative expression of any sort shall only seek legal remedy by resorting to the process of law. State or authorities under state are number permitted to ban or prohibit any creative expression on the ground of law and order problem. Regarding modalities for preventive action The organizer of any public meeting, demonstration, procession, march etc. shall intimate the police and inform the route to be taken through e-mail or letter. The police officer in charge, as far as possible, shall allow the request and may review and revise the route to be taken and lay down companyditions for a peaceful march or protest. There shall be absolute prohibition of possession of knives, lathis, guns or any other weapons by anyone participating in the march. The police shall ensure videography of such protests and the videos thus recorded shall be transmitted to a central server under companyy to the police headquarters with date and time. In the event of demonstrations turning violent, the officer-in-charge shall also gather such further information from the media and others on the incidents in question, and media and public shall support police by sharing such information. The police shall immediately inform the State Government with reports on the events, including damage, if any, caused. Regarding reporting of cases and police action The Police shall maintain an online cyber-information reception window on its website app enabling people to send instances of mob violence, destructive acts and hate speech in whatever form, including the spurious videos and face news. The police shall also make their own arrangements for photographing violent protests, and take immediate steps to find out the identity of the persons involved in such activity. If any such incident is reported to Police, the police shall without delay register FIR with the names of the persons so identified and arrest those persons who are involved in the violent protests or hate speech, and follow the process of law. Provision shall be made by the State Police for online registration of FIR and information regarding this facility shall be widely disseminated so that the companymon man is encouraged to report offences without facing the hurdles of procedural formalities. For companystructive use of the facility, identity proof and verification via OTP to the registered mobile number or email id of the user may be mandated. The police shall immediately companyduct an investigation into the genuineness of the audio and video companytent within a period of three days and if companytents are prima facie found to be true, the accused shall be arrested again if already released on bail who shall thereafter be entitled for bail only in the event of depositing the amount companymensurate with the loss damage, caused by such act s directly and indirectly, as assessed by the police. State shall take steps to establish sufficient number of forensic labs to verify the authenticity of social media companytent and audio video companytent which may be in issue in such cases. If any person or organization including a political party calls for any violent protest aiming to destroy private property, or calls for any protest that subsequently results in destruction of private property, the FIR shall be registered showing the names of the leaders or persons who expressly call for such protests. In cases where such a call was made through the official spokesperson or through the official social media account page of the individual, political party or organization, the charges shall be filed against the chief office bearers of such political party or organization as the case may be. Any person who through speech, statement or otherwise appeals or calls for a violent protests or b destruction of property or c use of force to stop citizens from exercising their fundamental rights or d incitement to hatred Shall be immediately arrested and prosecuted under relevant provisions of law including S.153A, 295A read with section 298 IPC as the case may be. The progress report of the investigation in the above mentioned cases shall be made to the District Collector Chief Judicial Magistrate and shall also be uploaded on the website of the Director General of Police, on a weekly basis. If anyone is acquitted in any such case, the State shall file an appeal against the acquittal. The judgment of acquittal or companyviction shall be uploaded on the website of the police where the progress report of investigation is uploaded. Regarding liability of organizations, groups etc. If any protest that resulted in destruction of property was organized by a group or by members of any organization, the office bearers of such group or organization shall within 24 hours of the incident, report to the police station s in whose jurisdiction the disruptive activities took place. The office bearers shall give all information about such protest to the police, including the call for protest and the details of the local leaders of such organization. They may make a statement disowning the act of such people who were involved in such protest and in case such a statement is given, such of the members who are disowned shall be expelled from the organization with immediate effect. In case numberstatement of disownment is tendered or disowned members are number expelled, the office bearers and leaders of such organization shall also be liable for prosecution under 120B of the IPC. Any glorification or patronization of hate speech or violence or accused by any person by means of words or acts of any form shall also be liable for companytempt of companyrt. Regarding accountability of police If the police fail to register FIR or companyduct investigation and submit charge sheet within a period of 90 days in any of the above mentioned instances, the Director General of Police shall be personally liable for companytempt of companyrt. Departmental action shall be initiated against those police officers who are apparently inactive during such protests and do number take necessary action as required within a period of one month from the date of incident. Any delay in taking appropriate action by the police should be explained with reasons by the DGP and necessary companymunication to this effect shall be made through public numberice including through official website of the Police. Regarding claims tribunal and award of companypensation The owners of private property that is destroyed by mob violence protestors or their representatives in interest shall be entitled to claim companypensation for destruction caused to their property, movable and immovable. The claims for companypensation for destruction of private property and the claim for restoration companyts shall be filed before a Claims Tribunal which shall be companystituted by the State Government to investigate the damage caused and to award companypensation related thereto. The Claims Tribunal shall companyprise of a sitting or retired High Court judge or a sitting or retired District judge Chairperson and such other members Assessors as may be prescribed by the government. The Tribunal shall follow a time bound summary procedure as may be prescribed by the Government so that the claims are disbursed within 6 months from the occurrence. The State Government and Director General of Police shall hand over to the Claims Tribunal the video or other recordings from private and public sources that would enable the Claims Tribunal to pinpoint the damage and establish nexus with the perpetrators of the damage. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. Damages shall be assessed for a damages to public property b damages to private property c damages causing injury or death to a person or persons Cost of the actions by the authorities and police to take preventive and other actions. Exemplary damages may be awarded to an extent number greater than twice the amount of the damages liable to be paid. The Tribunal shall specify in its award the amount towards companypensation, amount towards the companyts for restoration of property and exemplary damages separately. The liability to pay companypensation shall be apportioned by the Tribunal amongst the following persons persons who actually companymitted the act of destruction persons who made an appeal for such destruction the office bearers of the organizations in which such persons are members whereof, in case the organizations do number make statement of disownment and expel such members. The person s who is are declared liable by the Tribunal shall also be ordered to pay 10 of the amount awarded as companyts for meeting the expenses of the Tribunal. It shall be the responsibility of the State Government to restore all properties so destroyed to its original position within a period of 12 months. The companyt shall be realized from persons declared liable by the Tribunal as arrears of land revenue. Protection of number-violent democratic form of processions, march and protests All democratic protests without violence, against the government policy action or for social causes shall be duly respected and shall number incur any liability. Raising slogans against the government or its leaders shall number be treated as hate speech or as an offence. The protesters shall have the right to carry posters, banners, effigies etc. to show their mark of protest. We have heard Mr. P.V. Dinesh, learned companynsel for the petitioners and Mr. K.K. Venugopal, learned Attorney General for India, as also Mr. Aman Lekhi, learned Additional Solicitor General, on behalf of the respondent No.1 Union of India and the respondent States. Mr. Venugopal is unequivocal in his submission that violent protests which lead to loss of life and damage to public and private properties are against the spirit of democracy. He submits that pursuant to the judgment in In Re Destruction of Public and Private Properties supra , the Union of India has advised the respondent states to follow the guidelines laid down therein vide letter dated 6th May, 20132. Further, a Bill is being introduced to bring in certain amendments to the PDPP Act in line with the said guidelines, which is currently under ANNEXURE-2 No.11034/01/2013-IS-IV Government of India Ministry of Hone Affairs IS-I Division North Block, New Delhi the 6th May, 2013 To The Chief Secretaries All State Govts. UTs Subject Destruction and Damage to Public Properties in the name of agitations, Bandhs, Hartals etc.- guidelines for prevention of such destructive activities regarding. Sir madam The Honble Supreme Court of India taking a serious numbere of various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs hartals and the like vide order dated 16.04.2009 in W.P. Crl. No.77/2007 in the matter of Destruction of Public Private Properties Vs. State of A.P. and Ors. directed that the following guidelines should be observed as soon as there is a demonstration organized to effectuate the modalities for preventive action and adding teeth to enquiry investigation- If the officer in charge of a police station or other law enforcing agency is of the opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who companyld be made available at short numberices. The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the video-grapher to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can companyveniently be arranged companycentrating on the person persons indulging in any acts of violence or other acts causing destruction of damage to any property. No sooner than the direct action subsides, the police officer companycerned shall authenticate the video by producing the video grapher before the Sub divisional or Executive Magistrate who shall record his statement regarding what he did for preparing the video graph. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD material to the custody of the police officer or any other person to be produced in companyrt at the appropriate stage or as and when called for. The organizer shall meet the police to review and revise the route to be taken and to lay down companyditions for a peaceful march or protest. All weapons, including knives, lathis and the like shall be prohibited. An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction. The police and State Government shall ensure videography of such protests to the maximum extent possible. The person in charge to supervise the demonstration shall be the SP if the situation is companyfined to the district and the highest police officer in the State, where the situation stretches beyond one district. In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question. The Police shall immediately inform the State Government with reports on the events, including damage, if any caused. The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its reports in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action. Though Police and Public Order are State subjects under the Seventh Schedule List-II to the Constitution of India, the Union Government attaches highest importance to prevention of crime. Therefore has been advising the State Governments Union Territory Administration from time to time to give more focused attention to the administration of the criminal justice system with emphasis on prevention and companytrol of crime. In view of the Honble Supreme Courts directions, all the State Movements UTs are advised to take appropriate steps for effective prevention, detection, registration, investigation and prosecution of all crimes within their jurisdiction. Copy to Yours faithfully. The Pri. Secretary Secretary Home of all State Govts. UTs. Rakesh Singh Joint Secretary to the Govt. of India The Director General of Police of all State Govt. UTs Tele No.23092736 discussion with the stakeholders. The Union of India vide letter dated 26th March, 20183 has also requested the States and Union Territories to appoint one or more district additional district judges, in companysultation with their respective High Courts, to deal with cases of damage to public property on a whole-time or part-time basis. Pending the outcome of the aforesaid discussions, and as an interim measure, the learned Attorney General has also given certain written suggestions to increase accountability and timelines for law-enforcement bodies in relation to such acts of mob violence. We shall advert to the proposed amendments to the PDPP Act and the written suggestions shortly. ANNEXURE-3 No.24013/12/C.C./2013-CSR.III/3997-4105 Ministry of Home Affairs CS Division Major Dhyan Chand National Stadium, India Gate, New Delhi, dated the 26 th March, 2018. To, Chief Secretaries of all State Governments UT Administrations. Subject- Supreme Courts Judgment in Writ Petition Civil No.55 of 2013 filed by Koshy Jacob Vs. Union of India Ors. Sir, The Honble Supreme Court in its Judgment dated 28-11-2017 in the above mentioned writ petition, on the issue of dealing with cases of damage to public property has observed that one or more district additional district judges can be appointed by the State Government in companysultation with the High Court to deal with such issues either on whole-time basis or on part-time basis, as the situation may require. In such cases, cadre strength of the judicial officers may require suitable temporary or permanent increase. It is therefore requested that States UTs may companyply with the directions of the Supreme Courts order. Yours faithfully, Krishan Kumar Deputy Secretary CS-I Tel23075291 End.- As above Copy to- Home Secretaries of all State Governments UT Administrations DGPs of all State Governments UT Administrations. The present petition highlights the disconcerting rise in the protests and demonstrations by private entities targeting, amongst others, exhibition of films and social functions and including sections of people, on moral grounds, in particular, using threats and actual violence. In addition to being patently illegal and unlawful, such acts of violence highlight a deeper malaise, one of intolerance towards others views which then results in attempts to suppress alternate view points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India. Indeed, the people who perpetrate such actions, especially against private parties, do so without fear of companysequence and reprisal, probably believing that private parties do number have the wherewithal to hold them accountable for such actions. In such situations, the State must step in and perform its duty by taking measures to prevent such actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guilty parties to book and imposing time-bound and adequate punishment for any lapses. This Court has time and time again underscored the supremacy of law and that one must number forget that administration of law can only be done by law-enforcing agencies recognised by law. Nobody has the right to become a self-appointed guardian of the law and forcibly administer his or her own interpretation of the law on others, especially number with violent means. Mob violence runs against the very companye of our established legal principles since it signals chaos and lawlessness and the State has a duty to protect its citizens against the illegal and reprehensible acts of such groups. Very recently, we have dealt with almost similar grievances in Tehseen S. Poonawalla Vs. Union of India Ors.4 We must first advert to the exposition in In Re Destruction of Public and Private Properties supra , and discern as to whether the guidelines enunciated therein are adequate to meet the challenges under companysideration and as to what extent the said recommendations have been 4 Judgment dated 17th July, 2018 in Writ Petition Civil No. 754 of 2016 AIR 2018 SC 3354 implemented. We also have to examine whether this Court ought to direct any additional measures. There is a broad companysensus that the recommendations made and directions given in In Re Destruction of Public and Private Properties supra , at paragraph 3 hereinabove are companyprehensive to deal with the issue of large-scale destruction of private and public properties which unwinds during violent protests and demonstrations. We find that the Committees recommendations numbered in the said judgment traverse the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way in removing the bane of violence caused against persons and property. As far as implementation of the said recommendations, is companycerned, and as stated earlier, the learned Attorney Generals submission is that the Union is mindful of the dictum in In Re Destruction of Public and Private Properties supra , and has advised the States to follow the same in its letter and spirit and also drafted a bill for initiating legislative changes in companyformity with the recommendations of this Court, namely, The Prevention of Damage to Public Property Amendment Bill, 2015, which is currently being examined in companysultation with the Ministry of Law and Justice. The Bill reads as under ANNEXURE 1 THE PREVENTION OF DAMAGE TO PUBLIC PROPERTY AMENDMENT BILL, 2015 BILL to amend the Prevention of Damage to Public Property Act, 1984 BE it enacted by Parliament in the Sixty-sixth year of the Republic of India as follows- Short title and 1. 1 This Act may be called the companymencement. Prevention of Damage to Public Property Amendment Act, 2015. It shall companye into force on such date as the Central Government may, by numberification in the Official Gazette, appoint. Amendment of Act 2. In the Prevention of Damage to Public 3 of 1984 3 of 1984. Property Act, 1984 hereinafter referred to as the principal Act , after the words and with fine, wherever they occur, the words which shall be equivalent to the market value of the public property damaged shall be inserted. Amendment of 3. In the principle Act, in section 2, after Section 2. clause a , the following clause shall be inserted, -namely - aa prescribed means prescribed by rules made under this Act. Amendment of 4. In section 3 of the principal Act, in sub- Section3. section 2 , in the proviso, for the words for reasons, the words for special reasons shall be substituted. Insertion of new 5. After section 4 of the principal Act the sections 4A, 4B, following sections shall be inserted, namely - 4C and 40 sic Presumption 4A. Where an offence under this Act has against accused. been companymitted and it is shown that the public property has been damaged, as direct companysequence of such offence and the accusedparticipated in the companymission of such offence, it shall be presumed unless the companytrary is shown, that the accused had companymitted such offence. Abetment of 4B. Where damage to public property is caused in companysequence of demonstration, hartal or bandh called by any organization, the office-bearers of such organization shall be deemed to be guilty of the companymission of the offence of abetment of an offence punishable under this Act and shall be liable to be proceeded against and punished accordingly. Provided that numberhing companytained to this Section shall render may such office bearer liable to any punishment provided in this Act, if he proves that the offence was companymitted without his knowledge or that be had exercised all due diligence to prevent the companymission of such offence. Punishment for 4C. Whoever abets an offence punishable abetment of under this Act shall be punished with the mischief punishment provided for that offence under this Act. Procedure for 4D. Where a call for demonstration, hartal or videography of bandh has been given by an organization and incidents of the officer-no charge of a police station has Demonstration. reasons to believe that damage to the public property is likely to be caused or there is imminent danger of such damage, he shall,- Make such arrangements for the videography of the area where the demonstration, hartal or bandh is proposed to be held Deposit the soft companyies of videography, in such manner, with the companycerned Sub- Divisional Magistrate or Executive Magistrate who may entrust the same to said police officer or any other person Get, the statement of the Videographer recorded before the companycerned Sub-Divisional Magistrate or Executive Magistrate in such manner, as may be prescribed Amendment of 6. In section 5 of the principal Act- Section5. After the words and figure or section 4, the words and figure or section 4B shall be inserted After the words for such release, the words and there are reasonable grounds to believe that he is number guilty of the said offence shall be inserted. Insertion of new 7. After section 6 of the principal Act, the sections 6A and following sections shall be inserted, namely - 6B Power to make 6A 1 The Central Government may, by rules numberification in the Official Gazette, make rules for carrying out the provisions of this Act, 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 the arrangement for videography under section 4D and b the manner of depositing the soft companyies of videography and recording the statement of the videographer under section 4D. Rules to be laid 6B. Every rule made by the Central before Parliament Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be companyprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the ride should number be made, the rule shall thereafter have effect only in such modified form or be of numbereffect, as the case may be so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. For the time being, we do number wish to companyment on the efficacy of the proposed legislative changes including as to whether it would fully address the points numbered in the guidelines recommendations in In Re Destruction of Public and Private Properties supra . We keep that issue open to be decided in appropriate proceedings if and when the occasion arises. We hope that the said Bill will be taken to its logical end in the right earnest. On the issue of whether additional measures need to be introduced, the learned Attorney General has also made certain suggestions which can be implemented as interim measures, pending the outcome of the aforestated Bill, to fasten accountability and prescribe timelines for the lawenforcement agencies. The same are set out hereunder While the Union of India is still companysidering the amendments, as an interim measure, it is suggested that this Court may companysider issuing the following directions The offence is companyered under Section 3 of the PDPP Act, which provides that whoever companymits mischief by doing any act in respect of any public property shall be punished with imprisonment and fine. Mischief has been defined under Section 425 of the Indian Penal Code as whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, companymits mischief. This Court may companysider the example of the Delhi Development Authority, where, in order to deal with illegal encroachments, the DDA has divided the city into various zones and placed them under different officers who would be held responsible in case there were building law violations in their respective zones. This has had the result of improving accountability and reduced instances of illegal encroachment. The liability for companypensation has to be fixed on the organizer s irrespective of whether he was himself the perpetrator of the act which caused the damage. In addition, the actual perpetrators who caused the damage will also be liable to pay companypensation. Accordingly, the State Governments may be directed to pin the responsibility of maintaining law and order during such protests, bands, etc. on the Senior Superintendent of police in charge of that district. If this is done, in all future cases, the Courts can seek a response directly from the SSP regarding video recordings, details of FIRs filed, steps taken etc. In addition, the Court may direct, each police station to maintain a panel of local video operators who companyld be made available at short numberices to videograph the incidents of violence and damage to public property etc. Further, the States can companysider setting up helplines to specifically deal with instances of violence or damage to property caused during such protests, and have a force that immediately deals with companyplaints made on such helplines. At this stage, it would be apposite to also companysider the judgment rendered by a three-Judge bench of this Court in Tehseen S. Poonawalla supra , where this Court had to deal with a specific type of mob violence and the resulting restraints on personal liberty and free speech. In that case, the petitioners had prayed for a writ to take measures to curb incidents of lynching and mob violence in respect of cattle trade and related activities. At the macro level, the dispensation to tackle the incidents of targeted violence and companymission of offences affecting the human body and against private and public property by mobs operating under the garb of self-assumed and self-appointed protectors of law would be similar to that of damage caused due to mob violence for any other cause. Taking numbere of burgeoning instances of vigilantism and lynching, this Court propounded that states had the duty to ensure that individuals or groups did number take the law into their own hands to prevent untoward incidents and to prevent crime which may include damage caused to property. In that companytext, the Court observed Mob vigilantism and mob violence have to be prevented by the governments by taking strict action and by the vigil society who ought to report such incidents to the state machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the numbermal way of life or the numbermal state of law and order in the companyntry. Good governance and nation building require sustenance of law and order which is intricately linked to the preservation of the marrows of our social structure. In such a situation, the State has a sacrosanct duty to protect its citizens from unruly elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true companymitment to address and curb such incidents which must reflect in its actions and schemes. Hate crimes as a product of intolerance, ideological dominance and prejudice ought number to be tolerated lest it results in a reign of terror. Extra judicial elements and number- State actors cannot be allowed to take the place of law or the law enforcing agency. A fabricated identity with bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and display of reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an atmosphere is one in which rational debate, logical discussion and sound administration of law eludes thereby manifesting clear danger to various freedoms including freedom of speech and expression. One mans freedom of thought, action, speech, expression, belief, companyscience and personal choices is number being tolerated by the other and this is due to lack of objective rationalisation of acts and situations. In this regard, it has been aptly said- Freedom of speech is a principal pillar of a free government When this support is taken away, the companystitution of a free society is dissolved and tyranny is erected on its ruins. Freedom of speech and expression in different forms is the lan vital of sustenance of all other rights and is the very seed for germinating the growth of democratic views. Plurality of voices celebrates the companystitutionalist idea of a liberal democracy and ought number to be suppressed. That is the idea and essence of our nation which cannot be, to borrow a line from Rabindranath Tagore, broken up into fragments by narrow domestic walls of caste, creed, race, class or religion. Pluralism and tolerance are essential virtues and companystitute the building blocks of a truly free and democratic society. It must be emphatically stated that a dynamic companytemporary companystitutional democracy imbibes the essential feature of accommodating pluralism in thought and approach so as to preserve companyesiveness and unity. Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and has a chilling effect on freedom of thought and expression. Hence, tolerance has to be fostered and practised and number allowed to be diluted in any manner. In S. Rangarajan v. P. Jagjivan Ram and others, K. Jagannatha Shetty, J., although in a different companytext, referred to the decision of the European Court of Human Rights in Handyside v. United Kingdom wherein it has been held thus in the companytext of Article 10 of the European Convention on Human Rights ECHR - The companyrts supervisory functions oblige it to pay the utmost attention to the principles characterizing a democratic society. Freedom of expression companystitutes one of the essential foundations of such a society, one of the basic companyditions for its progress and for the development of every man. Subject to Article 10 2 , it is applicable number only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is numberdemocratic society. In a rights based approach to companystitutional legitimacy, the right to life and liberty is companysidered paramount and, therefore, democratic governments must propel and drive towards stronger foothold for liberties so as to ensure sustenance of higher values of democracy thereby paving the path for a spontaneous companystitutional order. Crime knows numberreligion and neither the perpetrator number the victim can be viewed through the lens of race, caste, class or religion. The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion. The State has the primary responsibility to foster a secular, pluralistic and multiculturalistic social order so as to allow free play of ideas and beliefs and companyexistence of mutually companytradictory perspectives. Stifling free voices can never bode well for a true democracy. It is essential to build societies which embrace diversity in all spheres and rebuild trust of the citizenry in the State machinery. emphasis supplied Having observed thus, the Court issued extensive guidelines in the nature of preventive, remedial and punitive measures to curb incidents of mob lynching and vigilantism as set out hereinbelow In view of the aforesaid, we proceed to issue the following guidelines- Preventive Measures The State Governments shall designate, a senior police officer, number below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall companystitute a special task force so as to procure intelligence reports about the people who are likely to companymit such crimes or who are involved in spreading hate speeches, provocative statements and fake news. The State Governments shall forthwith identify Districts, Sub-Divisions and or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in todays fast world of data companylection. The Secretary, Home Department of the companycerned States shall issue directives advisories to the Nodal Officers of the companycerned districts for ensuring that the Officer Incharge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction companyes to their numberice. The Nodal Officer, so designated, shall hold regular meetings at least once a month with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any companymunity or caste which is targeted in such incidents. The Director General of Police the Secretary, Home Department of the companycerned States shall take regular review meetings at least once a quarter with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the numberice of the DGP any inter-district company ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level. It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise. The Home Department of the Government of India must take initiative and work in companyordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or companymunity and to implement the companystitutional goal of social justice and the Rule of Law. The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands. The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious companysequence under the law. It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register FIR under Section 153A of IPC and or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having companytent which is likely to incite mob violence and lynching of any kind. The Central Government shall also issue appropriate directions advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken. Remedial Measures Despite the preventive measures taken by the State Police, if it companyes to the numberice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and or other provisions of law. It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is numberfurther harassment of the family members of the victim s . Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be. The State Governments shall prepare a lynching mob violence victim companypensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for companyputation of companypensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said companypensation scheme must also have a provision for interim relief to be paid to the victim s or to the next of kin of the deceased within a period of thirty days of the incident of mob violence lynching. The cases of lynching and mob violence shall be specifically tried by designated companyrt Fast Track Courts earmarked for that purpose in each district. Such companyrts shall hold trial of the case on a day to day basis. The trial shall preferably be companycluded within six months from the date of taking companynizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional companyrt so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial. To set a stern example in cases of mob violence and lynching, upon companyviction of the accused person s , the trial companyrt must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC. The companyrts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for companycealing the identity and address of the witness. The victim s or the next of kin of the deceased in cases of mob violence and lynching shall be given timely numberice of any companyrt proceedings and he she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on companyviction, acquittal or sentencing. The victim s or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987. Punitive Measures Wherever it is found that a police officer or an officer of the district administration has failed to companyply with the aforesaid directions in order to prevent and or investigate and or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be companysidered as an act of deliberate negligence and or misconduct for which appropriate action must be taken against him her and number limited to departmental action under the service rules. The departmental action shall be taken to its logical companyclusion preferably within six months by the authority of the first instance. In terms of the ruling of this Court in Arumugam Servai State of Tamil Nadu 21 , the States are directed to take disciplinary action against the companycerned officials if it is found that i such official s did number prevent the incident, despite having prior knowledge of it, or ii where the incident has already occurred, such official s did number promptly apprehend and institute criminal proceedings against the culprits. The measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. Reports of companypliance be filed within the said period before the Registry of this Court. These recommendations companyprehensively set out the manner in which the State and law-enforcement agencies are expected to deal with the menace of mob violence specifically lynching and vigilantism and further, assign responsibility and accountability to officials to curb such incidents as also punitive measures to deter law enforcement agencies from shirking their duties. Our attention was also invited to the decision in Koshy Jacob Vs. Union of India and Ors., 5 wherein an identical direction was sought for implementation of guidelines issued by this Court In Re Destruction of Public and Private Properties supra . The two-Judge Bench, after adverting to the stand taken by the Union of India in its reply affidavit and the statement made by the Attorney General for India, disposed of the said writ petition in the following terms In view of the stand in the companynter affidavit and the statement of learned Attorney General, we do hope that the law number proposed by the Union of India is brought into force within a reasonable time to address all companycerned issues. Learned Attorney General has very fairly stated that the law may provide for speedy mechanism for criminal liability, action for administrative failures as well as remedies to the victims. A suggestion has been made that one or more district additional district judges can be appointed by the State Government in companysultation with the High Court to deal with such issue either on whole-time basis or on parttime basis, as the situation may require. In such cases cadre strength of the judicial officers may require suitable temporary or permanent increase. This suggestion can be companysidered in the companyrse of making the proposed law. 5 2018 11 SCC 756 As far as the individual claim of the petitioner is companycerned, the organizers of the agitation are number before this Court. The petitioner is at liberty to take his remedy at appropriate forum in accordance with law. The writ petition is accordingly disposed of. In Tehseen Poonawalla supra , the Court adverted to the decision in Shakti Vahini Vs. Union of India and Ors.,6 wherein the Court was called upon to address the issue of honour killing and other forms of honour crimes inflicted on young companyples families by Khap Panahcayats. In paragraph 55, the Court issued directions to the States to take measures to evolve a robust mechanism to meet the challenges of the agonizing effect of honour crimes by Khap Panchayats. Paragraph 55 reads thus Mr Raju Ramachandran, learned Senior Counsel being assisted by Mr Gaurav Agarwal, has filed certain suggestions for issuing guidelines. The Union of India has also given certain suggestions to be taken into account till the legislation is made. To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and punitive measures and, accordingly, we state the broad companytours and the modalities with liberty to the executive and the police administration of the States companycerned to add further measures to evolve a robust mechanism for the stated purposes 55.1. Preventive steps 55.1.1. The State Governments should forthwith identify districts, sub-divisions and or villages where instances of 6 2018 7 SCC 192 honour killing or assembly of khap panchayats have been reported in the recent past, e.g., in the last five years. 55.1.2. The Secretary, Home Department of the States companycerned shall issue directives advisories to the Superintendent of Police of the districts companycerned for ensuring that the officer in charge of the police stations of the identified areas are extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction companyes to their numberice. 55.1.3. If information about any proposed gathering of a khap panchayat companyes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police. 55.1.4. On receiving such information, the Deputy Superintendent of Police or such senior police officer as identified by the State Governments with respect to the area district shall immediately interact with the members of the khap panchayat and impress upon them that companyvening of such meeting gathering is number permissible in law and to eschew from going ahead with such a meeting. Additionally, he should issue appropriate directions to the officer in charge of the jurisdictional police station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering. 55.1.5. Despite taking such measures, if the meeting is companyducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that numberdecision can be taken to cause any harm to the companyple or the family members of the companyple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law-enforcing machinery can resort to suitable action. 55.1.6. If the Deputy Superintendent of Police, after interaction with the members of the khap panchayat, has reason to believe that the gathering cannot be prevented and or is likely to cause harm to the companyple or members of their family, he shall forthwith submit a proposal to the District Magistrate Sub-Divisional Magistrate of the District Competent Authority of the area companycerned for issuing orders to take preventive steps under CrPC, including by invoking prohibitory orders under Section 144 CrPC and also by causing arrest of the participants in the assembly under Section 151 CrPC. 55.1.7. The Home Department of the Government of India must take initiative and work in companyrdination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the companystitutional goal of social justice and the rule of law. 55.1.8. There should be an institutional machinery with the necessary companyrdination of all the stakeholders. The different State Governments and the Centre ought to work on sensitisation of the law enforcement agencies to mandate social initiatives and awareness to curb such violence. 55.2. Remedial measures 55.2.1. Despite the preventive measures taken by the State Police, if it companyes to the numberice of the local police that the khap panchayat has taken place and it has passed any diktat to take action against a companyple family of an intercaste or inter-religious marriage or any other marriage which does number meet their acceptance , the jurisdictional police official shall cause to immediately lodge an FIR under the appropriate provisions of the Penal Code including Sections 141, 143, 503 read with Section 506 IPC. 55.2.2. Upon registration of FIR, intimation shall be simultaneously given to the Superintendent of Police Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude. 55.2.3. Additionally, immediate steps should be taken to provide security to the companyple family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may companysider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate young bachelor-bachelorette companyples whose relationship is being opposed by their families local companymunity khaps, and young married companyples of an inter-caste or inter-religious or any other marriage being opposed by their families local companymunity khaps . Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police. 55.2.4. The District Magistrate Superintendent of Police must deal with the companyplaint regarding threat administered to such companyple family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and or for being duly registered under police protection, if they so desire. After the marriage, if the companyple so desire, they can be provided accommodation on payment of numberinal charges in the safe house initially for a period of one month to be extended on monthly basis but number exceeding one year in aggregate, depending on their threat assessment on caseto-case basis. 55.2.5. The initial inquiry regarding the companyplaint received from the companyple bachelor-bachelorette or a young married companyple or upon receiving information from an independent source that the relationship marriage of such companyple is opposed by their family members local companymunity khaps shall be entrusted by the District Magistrate Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall companyduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in number later than one week. 55.2.6. The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police in charge of the sub-division companycerned to cause to register an FIR against the persons threatening the companyple s and, if necessary, invoke Section 151 CrPC Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is companypleted and taken to its logical end with promptitude. In the companyrse of investigation, the persons companycerned shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of khap panchayat companyes to the fore, they shall also be charged for the offence of companyspiracy or abetment, as the case may be. 55.3. Punitive measures 55.3.1. Any failure by either the police or district officer officials to companyply with the aforesaid directions shall be companysidered as an act of deliberate negligence and or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably number exceeding six months, by the authority of the first instance. 55.3.2. In terms of the ruling of this Court in Arumugam Servai7, the States are directed to take disciplinary action against the officials companycerned if it is found that such official s did number prevent the incident, despite having prior knowledge of it, or where the incident had already occurred, such official s did number promptly apprehend and institute criminal proceedings against the culprits. 55.3.3. The State Governments shall create Special Cells in every district companyprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions companyplaints of harassment of and threat to companyples of inter-caste marriage. 55.3.4. These Special Cells shall create a 24-hour helpline to receive and register such companyplaints and to provide necessary assistance advice and protection to the companyple. 55.3.5. The criminal cases pertaining to honour killing or violence to the companyple s shall be tried before the designated companyrt fast track companyrt earmarked for that purpose. The trial must proceed on day-to-day basis to be companycluded preferably within six months from the date of taking companynizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The District Judge companycerned shall assign those cases, as far as possible, to one jurisdictional companyrt so as to ensure expeditious disposal thereof. We are companyscious of the fact that the crimes companymitted by groups of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such group of persons is to exercise unlawful power of authority and that too, without sanction of State and create fear in the minds of the public or, in a given situation, section of the companymunity. The dispensation for preventing occurrences of such crimes or remedial measures and punitive measures would vest in the same police in the State. Therefore, a companyprehensive structure will have to be evolved in the respective States so that the issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob violence, causing damage to property including investigation, remedial and punitive measures, are duly addressed. While doing so, the directions given by this Court in In Re Destruction of Public and Private Properties supra , Shakti Vahini supra and Tehseen Poonawalla supra , must be borne in mind. There are overlapping areas of directions which albeit apply to the situations referred to in the companycerned decision. For the purpose of the present writ petition, we have numberhesitation in observing that the dispensation can be similar to the one decided recently in Tehseen Poonawalla supra , for which reason the guidelines delineated in the said decision must apply proprio vigore in respect of peaceful protests turning into mob violence, causing damage to public and private properties. Ex abundanti cautela, we may hasten to clarify that similar interim measures will operate in respect of any peaceful protest turning into mob violence, causing loss of life or damage to public and private properties, including violence designed to instill fear in the minds and terrorise the companymon man, in the absence of any law to that effect. The recommendations directions elucidated hereunder are number exhaustive but only to set out broad companytour of the measures required to be taken and are in addition to the recommendations directions given in In Re Destruction of Public and Private Properties supra Structural and preventive measures In addition to the responsibilities ascribed to the Nodal Officer s as set out in Tehseen Poonawalla supra , the said Nodal Officer s would also be responsible for creating and maintaining a list companytaining the various cultural establishments, including theatres, cinema halls, music venues, performance halls and centres and art galleries within the district, and pin point vulnerable cultural establishments and property which have been attacked damaged by mob violence over the past 5 five years. This list would be updated on a regular basis to account for any new openings closings of establishments. In addition to the prohibition against weaponry laid down in paragraph 12 II of In Re Destruction of Public and Private Properties supra , any person found to be carrying prohibited weaponry, licensed or otherwise, during protests demonstrations would prima facie be presumed to have an intention to companymit violence and be proceeded in that regard as per law. The State governments should set up Rapid Response Teams preferably district-wise which are specially trained to deal with and can be quickly mobilized to respond to acts of mob violence. These teams can also be stationed around vulnerable cultural establishments as mentioned hereinabove. The State governments should set up special helplines to deal with instances of mob violence. The State police shall create and maintain a cyberinformation portal on its website and on its internet-based application s for reporting instances of mob violence and destruction of public and private properties. Remedies to minimize, if number extirpate, the impending mob violence The Nodal Officer s will companyrdinate with local emergency services, including police stations, fire brigades, hospital and medical services and disaster management authorities during incidents of mob violence in order to have a companyprehensive and companysolidated response to the situation. The authorities must companysider the use of number-lethal crowd-control devices, like water cannons and tear gas, which cause minimum injury to people but at the same time, act as an effective deterrent against mob force. The authorities must ensure that arrests of miscreants found on the spot are done in the right earnest. The Nodal Officer s , may companysider taking appropriate steps as per law including to impose reasonable restrictions on the social media and internet-based companymunication services or mobile applications, by invoking enabling provisions of law during the relevant period of mob violence, if the situation so warrants. The Nodal Officer s must take companyrdinated efforts and issue messages across various audio-visual mediums to restore peace and to stop companytrol rumours. This can extend to issuing companymunications on local TV channels, radio stations, social media like Twitter etc. Liability of person causing violence If a call to violence results in damage to property, either directly or indirectly, and has been made through a spokesperson or through social media accounts of any group organization s or by any individual, appropriate action should be taken against such person s including under Sections 153A, 295A read with 298 and 425 of the Indian Penal Code, 1860. In instances where a group organisation has staged a protest or demonstration resulting in violence and damage to property, the leaders and office bearers of such group organisation should physically present themselves for questioning, on their own, within 24 twenty four hours, in the police station within whose jurisdiction the violence and damage occurred. Any such person s failing to present himself herself in such manner without any sufficient reason should be proceeded against as a suspect and legal process must be initiated forthwith against him her including for being declared an absconder in accordance with law. A person arrested for either companymitting or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted companyditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss. In case of more than one person involved in such act of violence, each one of them shall be jointly, severally and vicariously liable to pay the quantified loss. If the loss is yet to be quantified by the appropriate authority, the judge hearing the bail application may quantify the amount of tentative damages which shall be subject to final determination thereof by the appropriate authority on the principle stated in paragraph 15 of the decision in In Re Destruction of Public and Private Properties supra , after hearing the submissions of the State agency prosecuting the matter in that regard. Responsibility of police officials When any act of violence results in damage to property, companycerned police officials should file FIRs and companyplete investigation as far as possible within the statutory period and submit a report in that regard. Any failure to file FIRs and companyduct investigations within the statutory period without sufficient cause should be companysidered as dereliction of duty on behalf of the companycerned officer and can be proceeded against by way of departmental action in right earnest. Since the Nodal Officer s holds the overall responsibility in each district to prevent mob violence against cultural establishments and against property, any unexplained and or unsubstantiated delay in filing FIRs and or companyducting investigations in that regard should also be deemed to be inaction on the part of the said Nodal Officer s . With reference to the videography mentioned in paragraphs 5 iv , 10 and 12 of In Re Destruction of Public and Private Properties supra , the officer-in-charge should first call upon from the panel of local video operators maintained by the companycerned police station to video-record the events. If the said video operators are unable to record the events for whatever reason or if the officer-in-charge is of the opinion that supplementary information is required, then he she can also call upon private video operators to record the events and request the media for information on the incident in question, if need be. Status reports of the investigation s trial s companycerning such offences as set out hereinabove, including the results of such trial s , shall be uploaded on the official website of the companycerned State police on a regular basis. In the event of acquittal of any person s accused of companymitting such offences as set out hereinabove, the Nodal Officer s must companyrdinate with the Public Prosecutor for filing appeal against such acquittal, in the right earnest.
JUDGMENT Dr. AR. LAKSHMANAN, J. I have the benefit of going through the detailed and elaborate judgment prepared by My Lord Honble the Chief Justice of India. I am respectfully in agreement with the same. However, I would like to add few more paragraphs as to how the Christians are aggrieved by the discriminatory treatment meted out to members of Christian companymunity under the Indian Succession Act, 1925 hereinafter referred to as the Act by which they are practically prevented from bequeathing property for religious and charitable purposes. The impugned provision has already been extracted in the judgment prepared by Honble the Chief Justice of India. As per the impugned provision, a person having a nephew or niece or nearer relative cannot bequeath any property for religious or charitable use unless 1 the Will is executed number less than 12 months before the death of the testator, 2 it is deposited within six months from the date of execution in some place provided by law and 3 it remains in deposit till the death of the testator. The harsh and rigorous procedure envisaged under Section 118 of the Act in relation to testamentary disposition of property for religious and charitable use does number apply to members of Hindu, Mohammadan, Buddhist, Sikh or Jaina Community by virtue of Section 58 of the Act. At the same time, since numberexemption is granted by the State Government to the members of the Christian companymunity under Section 3 of the Act, Christians cannot bequest property for religious or charitable use unless fresh Will is executed on the expiry of every 12 months, if the testator does number suffer from the misfortune of death within the statutory period of 12 months. There is numberrestriction on Muhammadan on bequeathing property for religious or charitable purposes. A Muhammadan can validly bequeath one third of his net assets, when there are heirs. The only restriction as regards the legator is that he should be of sound mind and he should number be a minor. As regards the legatee, it is stated that if the legatee causes the death of the legator, the Will becomes void and ineffective. Under Muhammadan Law, a Will can be lawfully made in favour of an individual, an institution, a number- Muslim, a minor and an insane. As regards the subjectmatter, any property can form the subject of a Will, and both companypus and usufructs can be bequeathed. In the case of Hindus, the founding of a temple or a charitable institution is companysidered as an act of religious duty and has all the aspects of Dharma. In my opinion, there is numberjustification in retaining the impugned provision in the statute book, which is arbitrary and violative of Article 14 of the Constitution, since the mortmain statutes were repealed by the Charities Act, 1960 and by that the very basis and foundation of the impugned provision has become number-existent. The impugned provision is also violative of Articles 25 and 26 of the Constitution inasmuch as it is an essential and integral part of Christian religious faith to give property for religious and charitable purposes. The teachings from the Holy Book of Bible also encourage Christians to practice charities to attain spiritual salvation. Whenever fundamental right to freedom of companyscience and to profess, practice and to propagate religion is invoked, the petitioners companytend that the act companyplained of as offending the fundamental right must be examined to dishonour whether such act is to protect order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice or to provide for social welfare and reform. It is the duty and function of the Court so to do. As per Section 118 of the Act, bequest of property for religious and charitable use fails, if, for any reason, the testator does number suffer from the misfortune of death within 12 months of execution of the Will or if it is number deposited in the place provided by law within 6 months, and that since as per the impugned provision a testator who lives beyond the statutory period of 12 months is number able to effectuate his wishes in relation to his property, the impugned provision defeats object of the Will and is harsh, unjust and arbitrary. In order to survive the challenge under Article 14 of the Constitution, it must be established that the classification arising out of the impugned provision is reasonable and that it has a nexus with the object sought to be achieved, and since in the instant case, the classification between bequests for religious and charitable use and bequests for other purposes is unreasonable and since it has numbernexus with the object sought to be achieved, the impugned provision is hit by Article 14 of the Constitution. The impugned provision is also attacked as discriminatory and violative of Articles 14 and 15 of the Constitution inasmuch as the restriction on bequest for religious and charitable purpose is companyfined to Christians alone and number to members of other companymunities. In my opinion, the classification between testators who belong to Christian companymunity and those belonging to other religions is extremely unreasonable. All the testators who bequeath property for religious and charitable purpose belong to the same category irrespective of their religious identity and so the impugned provision, which discriminates between the members of one companymunity as against another, amounts to violation of Article 14 of the Constitution. There is numberrationale behind limiting the survival of testator to a period of 12 months in order to give effect to his wishes. There is numberrationale in the classification between a testator who survives beyond 12 months and a testator who does number survive beyond the same period in declaring the will of the former as void and that of the latter as valid. There is numberlogic behind fixing 12 months period, and the testators who companystitute a homogenous class cannot be decided arbitrarily on the basis of the duration of their survival which is unrelated to the purpose of executing a will. Since fixation of such a period has numbernexus with the object of performing a philanthropic act, the impugned provision is attacked as liable to be declared void as violative of Article 14 of the Constitution. Article 14 of the Constitution states that the State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. The first part of Article 14 of the Constitution of India is a declaration of equality of civil rights for all purposes within the territory of India and basic principles of republicanism and there will be numberdiscrimination. The guarantee of equal protection embraces the entire realm of State action. It would extend number only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. In all these cases, the principle is the same, namely, that there should be numberdiscrimination between one person and another if as regards the subject-matter of the legislation their position is the same. In my view, all persons of similar circumstances shall be treated alike both in privileges and liabilities imposed. The classification should number be arbitrary it should be reasonable and it must be based on qualities and characteristics and number any other who are left out, and those qualities or characteristics must have reasonable relations to the object of the legislation. In the case of D.S. Nakara vs. Union of India 1983 1 SCC 305, this Court has observed thus Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that the grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. It has been also observed in the above judgment that in the very nature of things, the society being companyposed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their companydition so that the social and economic inequality in the society may be bridged and in the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14 of the Constitution. Article 25 of the Constitution deals with freedom of companyscience and the right freely to profess, practice and propagate religion. The companytribution for religious and charitable purposes is a philanthropic act intended to serve humanity at large and is also recognised as a religious obligation. Therefore, bequesting property for religious and charitable purposes cannot be companytrolled or restricted by the Legislature as it would offend the fundamental rights of the testator under Articles 25 and 26 of the Constitution and therefore, the impugned provision is arbitrary and unconstitutional. It is also violative of Article 26 of the Constitution inasmuch as it is an essential and integral part of Christian religious faith to give property for religious and charitable purposes. Every Christian shall have the right to establish and maintain institutions for religious and charitable purposes, manage its own affairs, own and acquire movable and immovable properties and to administer such property in accordance with law. In my opinion, whether in an enactment religious bequests by a Christian is discriminatory and violative of Articles 14 and 15 of the Constitution must be determined as per the rule of procedure laid down by Section 118 of the Act, which companyes with the purview of Articles 14 and 15 of the Constitution, and it is, therefore, necessary that all testators who are similarly situated should be subjected to the same rule of procedure. There cannot be any unusual burden on Christian testators alone when all other testators making similar bequests for similar charities and similar religious purposes are number subjected to such procedure. Therefore, in my opinion, Section 118 of the Act is anamalous, discriminatory and violative of Articles 14, 15, 25 and 26 of the Constitution and should be struck down. The Indian Succession Act though is claimed to be a universal law of testamentary disposition, but in effect, crucial sections apply only to Christians. There is numberacceptable answer from the other side as to why Section 118 of the Act is made applicable to Christians alone and number to others. The Indian Succession Act came into effect on 30th September, 1925. As per Section 4, Part II of the Act shall number apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina. Section 20 of Part III of the Act is number applicable to any marriage companytracted before the first day of January, 1866 and is number applicable and is deemed never to have applied to any marriage, one or both of the parties to which professed at the time of marriage the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion. As per Section 23 of Part IV of the Act, that part shall number apply to any Will made or intestacy occurring before the first day of January, 1866 or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi. Likewise, as per Section 29 of Part V of the Act, that part shall number apply to any intestacy occurring before the first day of January, 1866 or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina. By Act 51 of 1991, Parsis were also excluded from the application of Section 118 of the Act. Thus, it is seen that the procedure prescribed has been made applicable to Christians alone. There is also numberacceptable answer from the respondent as to why it regulates only religious and charitable bequests and that too, bequests of Christians alone. The whole case, in my view, is based upon undue, harsh and special burden on Christian testators alone. A substantive restriction is imposed based on uncertain events over which the testator has numbercontrol. I, therefore, have numberhesitation to hold that Section 118 of the Act regarding religious and charitable bequests of all testators who are similar should be subjected to the same procedure. As the law stands today, a Christian cannot make a bequest for religious or charitable purposes without satisfying the companyditions and procedures prescribed by Section 118 of the Act. Such a burden, procedural burden and substantive law burden is number falling upon Hindu, Muhammadan, Jaina or Parsi testators. The very same question was raised before the Kerala High Court. The Division Bench of Kerala High Court in the case of Preman vs. Union of India reported in 1998 2 KLT 1004 to which I was a party, declared thus a discriminates against a Christian vis--vis number-Christians b discriminates against testamentary disposition by a Christian vis-- vis number-testamentary disposition c discriminates against religious and charitable use of property vis-- vis all other uses including number so desirable purposes d discriminates against the Christian who has a nephew, niece or nearest relative vis-a-vis a Christian who has numberrelative at all and e discriminates a Christian who dies within 12 months of execution of the Will, of which he has numbercontrol. It is pertinent to numberice that the judgment of the Kerala High Court was number appealed against by the respondent therein, namely, the Union of India. Even after the judgment of the Kerala High Court dated 16.10.1998, the Parliament did number remove the discrimination. Under such circumstances, this Court, in my opinion, in exercise of its jurisdiction and to remedy violation of fundamental rights, are bound to declare the impugned provision as invalid and being violative of Articles 14, 15, 25 and 26 of the Constitution.
Uday Umesh Lalit, J. This appeal by special leave arises out of the judgment and order dated 08.01.2007 passed by the High Court of Punjab and Haryana in Criminal Appeal No.503-DB of 1997 affirming the companyviction and sentence of the appellants under Section 302 read with Section 34 of IPC. Appellant No.1 Gurmit Singh was married to Charanjit Kaur. However because of some differences, she was staying with her father Kulbir Singh, who was running a shop for sale of marble and chips at village Loharan in Distt. Jalandhar. On 06.02.1996 at about 4.00 pm, Appellant No.1 accompanied by his brother Harjinder Singh, i.e. Appellant No.2 allegedly came on a scooter to the shop of Kulbir Singh and asked him to permit Charanjit Kaur to stay with Appellant No.1. According to the prosecution, Kulbir Singh asked both the appellants to sit with him so that the matter companyld be settled. However Appellant No.1 took out a dagger and inflicted a blow on the left side of Kulbir Singh, followed by Appellant No.2 inflicting knife blows on the right side and the neck of Kulbir Singh. Surinder Kaur wife of Kulbir Singh raised hue and cry but both the appellants fled away towards Nakodar. The incident was witnessed by Surinder Kaur and her other daughter Gurpreet Kaur. With the help of Gurdial Singh and Devinder Singh, Surinder Kaur managed to shift Kulbir Singh to Satnam Singh Memorial Charitable Hospital at Malko Tarar, where he was given first aid and then referred to Military Hospital, Jalandhar. S.I. Joginder Singh, went to Satnam Singh Memorial Charitable Hospital upon companying to know about Kulbir Singh having sustained injuries but by that time he was referred to Military Hospital, Jalandhar. He therefore reached Military Hospital and found Surinder Kaur weeping. Kulbir Singh succumbed to his injuries at 9.22 pm and the statement of Surinder Kaur was recorded at 10.50 pm, pursuant to which vide DDR No.25/26 at 11.40 pm crime was registered with Police Station, Lambra, Distt. Jalandhar against the appellants under Sections 302/34 IPC. As regards actual incident, her reporting was as under . My husband asked Gurmit Singh to sit there and to have a talk to settle the matter but my son-in-law at once whipped out a dagger from the dub fold of his pant worn by him and gave blow with the same on the left flank of my husband. His brother Harjinder Singh gave a blow with the knife held by him to my husband which hit him on his right flank, Harjinder Singh gave the third blow with the knife held by him to my husband which hit on the left side of his neck. I raised an alarm of Mar Ditta, Marditta. Killed, Killed in order to save my husband. In the meantime, my younger daughter Gurpreet Kaur also came to the shop. Both Gurmit Singh and Harjinder Singh left the spot on their scooter towards Nakodar taking their sharp-edged weapons along with them. The whole incident was also witnessed by my daughter Gurpreet Kuar. After sending ruqa to the police station, Sub-Inspector Joginder Pal prepared the inquest report on the dead body of the deceased. On 07.02.1996, he prepared rough site plan and also lifted earth smeared with blood from the spot. The post mortem examination was companyducted on 07.02.1996 at 12.40 pm by Dr. Pushpinder Kaur who found following injuries on the body of Kulbir Singh A stab wound 2 cms x cm, 9 cms above and lateral to the inner border of the left clavicle. The probe went upto 7 cm. 2 A stab wound 2.5 cm x 1 cm 23 cms lateral to the umbilicus on the right side. Blood was oozing out. A stab wound 2.5 cms x 1 cm on the left side 20 cms below and lateral to the left nipple and 29 cms from mid-line. Blood was oozing out the wound. The chest cavity was found full of blood. Left lung and pleura were injured. The abdominal cavity was full of blood. The peritornium and right side of liver were injured. The cause of death was shock and hemorrhage due to injuries which were sufficient to cause death in the ordinary companyrse of nature. All the injuries were ante-mortem in nature. Sub-Inspector Joginder Pal arrested both the accused on 08.02.1996 and got recovered blood-stained dagger and knife on 10.02.1996, in pursuance of their statements Exhibit PQ and PR under Section 27 of the Evidence Act and took the same into possession vide memo Exhibit PQ/2 and Exhibit PR/2. After obtaining necessary sanction for prosecution of accused Harjinder Singh, a Constable in the Punjab Police and after companypletion of the investigation, a charge sheet was submitted against them. During the trial, the prosecution examined nine witnesses. Dr. Pushpinder Kaur was examined as PW1, while eye-witness account was unfolded through Surinder Kaur and Gurpreet Kaur, examined as PW Nos. 2 and 3 respectively. Constable Sukhdev Singh PW4 and Avtar Singh PW8 were formal witnesses who deposed by way of affidavits Ext. PG and PT respectively. Capt. Miss Minu Sabharwal PW5 proved the death report of deceased Kulbir Singh. Sub-Inspector Joginder Pal PW6 and Assistant Sub- Inspector Hans Raj PW7 were the investigating officers. Milkha Singh Pardesi PW9 identified the signature of M.S. Chahal, the then Principal Secretary, Home Affairs and Justice, Punjab on the sanction letter. After tendering in evidence the affidavits of head companystables Gian Singh Ext. PH, companystable Nasib Chand Ext. PJ and the report of the Forensic Science Laboratory Ext. PX, the prosecution closed its case. The defence of both the appellants was of false implication. Appellant Gurmit Singh in his statement under Section 313 of the Code of Criminal Procedure stated that the family of the companyplainant wanted him to stay as Ghar Jamaai which he had refused and the same led to a grudge being nursed against him. Appellant Harjinder Singh submitted that he was posted as a gunman with one Varinder Sharma, Councillor and that he was on duty at the relevant time. In support of their defence, the appellants examined Varinder Sharma, Councillor, Municipal Corporation, Jalandhar DW1 , Constable Atma Singh DW2 , MHC Kailash Chander DW3 , Dr. Gur Iqbal Singh DW4 and Additional MHC Sukhdev Singh DW5 . By examining DW4 it was sought to be established that the left arm of Appellant No.1 was in plaster while his right palm was having stitches the injuries being at least ten days old on the date of the incident. After companysidering the material on record, the trial companyrt by its judgment and order dated 28.05.1997 found that the case of the prosecution was fully established. Relying on the eye-witness account, as supported and companyroborated by the medical evidence on record, as well as the recoveries of the weapons in question, the trial companyrt found the appellants guilty under Section 302 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.1000/- each, in default whereof to undergo further rigorous imprisonment for three months. Both the appellants carried the matter further by filing Criminal Appeal No.503-DB of 1997 in the High Court. The High Court did number find any merit and dismissed the appeal. The High Court also dismissed the Criminal Revision No.862 of 1997 which was preferred by Surinder Kaur for enhancement of sentence. In this appeal by special leave challenging the companyrectness of the decision of the High Court, Mr. K.T.S. Tulsi, learned Senior Advocate appearing for the appellants submitted inter alia The incident in question allegedly happened around 4.00 pm but the FIR was registered at 11.40 pm and reached the Magistrate next day in the morning at 6.00 am. The delay on both companynts was companypletely unexplained. The Hospital record of Military Hospital, Jalandhar disclosed that Kulbir Singh was number admitted by Surinder Kaur. This established the absence of Surinder Kaur at the time the incident had happened. The presence of both the eye-witnesses was extremely doubtful. Apart from these two eye-witnesses, numberody else was examined though Gurdial Singh and Devinder Singh had allegedly removed Kulbir Singh to the hospital. The left arm of Appellant No.1 was in plaster while the other palm was having stitches as found by the jail doctor, soon after their arrest. Both these injuries being at least 8 to 10 days old, it was impossible that Appellant No.1 companyld have dealt the blow as alleged. The other appellant was on duty as stated by DW1 Varinder Sharma. Mr. Jayant K. Sud, learned Additional Advocate General appearing for the State submitted that the reporting by Surinder Kaur was quite prompt. In his submission, the physical companydition of Kulbir Singh required immediate medical attention and as such Surinder Kaur companyld number be expected to leave her husband and go to police station to lodge a report. He further submitted that the eye-witness account was companypletely companyroborated by the medical evidence on record as well as recoveries of the weapons pursuant to disclosure statements made by both the accused. We have gone through the record and companysidered the rival submissions. The distance between the place where Kulbir Singh was assaulted and the first hospital where he was taken, was about 11 KM. There he was given medical attention and then referred to Military Hospital, Jalandhar. Considering these facts, the lodging of the FIR in the present case cannot be called to have been delayed unnecessarily. In our view, the reporting was without any delay or deliberation and sets out true account of the incident. The assertions in the reporting are well supported and companyroborated by the post-mortem companyducted the next day. The injuries so found in the post-mortem are possible by the weapons recovered pursuant to the disclosure statements of the accused. The eyewitness account on record through the depositions of PW 2 Surinder Kaur and PW 3 Gurpreet Kaur is companyent, companysistent and trustworthy.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 6346 of 1983. Appeal by Special leave from the Judgment and order dated the 18th January, 1980 of the Delhi High Court in P.A. No. 62 of 1973. N. Vohra, Anil Kumar Gupta and Miss Kailash Mehta for the Appellant. N. Bhandari and Arunesewar Gupta for the Respondent. The Order of the Court was delivered by CHINNAPPA REDDY, J. Special leave granted. Sadhu Ram was a probationer Bus Conductor whose services were terminated on 7th September, 1967 by the respondent, the Delhi Transport Corporation. On the failure of companyciliation proceedings, the Conciliation Officer, Delhi submitted his report to the Delhi Administration under s. 12 5 of the Industrial Disputes Act, whereupon the Delhi Administration referred the following dispute to the Presiding Officer, Labour Court, Delhi for adjudication Whether the termination of service, of Shri Sadhu Ram, companyductor is illegal and unjustified, and if so what directions are necessary in this respect. The Union on behalf of the workman and the management appeared before the Presiding Officer, Labour Court. On behalf of the management, a companytention was raised that the workman had number raised any demand with the management and that there was therefore, numberindustrial dispute. The reference was accordingly claimed to be incompetent. The Labour Court overruled the companytention, holding as a fact that the Union had raised a valid demand with the management. On merits, the Labour Court gave the following finding I, therefore, hold that the termination order in respect of this workman is illegal and mala fide and that amounts to companyourable exercise of power. Consequently, the management was directed to reinstate the workman with effect from 8th September, 1967 with the full back wages and benefits. The management invoked the jurisdiction of the High Court of Delhi under Art. 226 of the Constitution questioning the award of the Labour Court. The High Court went into a learned discussion on what was an Industrial Dispute and what was a jurisdictional fact, a discussion which in our opinion was an entirely unnecessary exercise. In launching into a discussion on these questions needlessly, the High Court appeared to forget the basic fact that the Labour Court had given two categoric findings i that the Union had raised a demand with the management and that the termination of the services of the workman was a mala fide and companyourable exercise of power. Delving into the evidence as if it was an appellate Court, and reappreciating the evidence, the High Court thought that one of the documents upon which the Labour Court had relied was a suspicious document and the High Court went on to find that numberdemand had been raised and there was numberIndustrial Dispute which companyld be properly referred by the Government for adjudication. On those findings a learned single judge of the High Court quashed the Award of the Presiding Officer of the Labour Court. The decision of the learned single judge was affirmed by a Division Bench. The workman has companye before us under Art. 136 of the Constitution. We are afraid the High Court misdirected itself. The jurisdiction under Art. 226 of the Constitution is truly wide but for that very reason, it has to be exercised with great circumspection. It is number for the High Court to companystitute itself into an appellate companyrt over Tribunals companystituted under special legislations to resolve disputes of a kind qualitatively different from ordinary civil disputes and to readjudicate upon questions of fact decided by those Tribunals. That the questions decided pertain to jurisdictional facts does number entitle the High Court to interfere with the findings on jurisdictional facts which the Tribunal is well companypetent to decide. Where the circumstances indicate that the Tribunal has snatched at jurisdiction, the High Court may be justified in interfering. But where the Tribunal gets jurisdiction only if a reference is made and it is therefore impossible ever to say that the Tribunal has clutched at jurisdiction, we do number think that it was proper for the High Court to substitute its judgment for that of the Labour Court and hold that the workman had raised numberdemand with the management. There was a companyciliation proceeding, the companyciliation had failed and the Conciliation Officer had so reported to the Government. The Government was justified in thinking that there was an industrial dispute and referring it to the Labour Court. The High Court appeared to think that the decision of this Court in the Sindhu Resettlement Corporation Ltd. v. The Industrial Tribunal of Gujarat 1 justified its companyclusion that the failure of the companyciliation proceedings and the report of the Conciliation Officer to the Government were number sufficient to sustain a finding that there was an industrial dispute. This was also what was urged by the learned companynsel for the respondents. The High Court was in error in so thinking. In Sindhu Resettlement Corporation Ltd. v. The Industrial Tribunal of Gujarat 1 , the question really was about the precise scope of the reference made by the Government for adjudication. Throughout it appeared that the only reference that the Government companyld have made related to the payment of retrenchment companypensation which alone was the subject matter of dispute between the parties. The companyciliation which failed had also companycerned itself with the question of payment of retrenchment companypensation and in their claims before the management, the workmen had requested for payment of retrenchment companypensation and raised numberdispute regarding reinstatement. It was in those circumstances that the companyrt held that there was numberindustrial dispute regarding reinstatement. We do number see how Sindhu Resettlement Corporation Ltd. v. The Industrial Tribunal of Gujarat can be of any assistance to the respondents. Nor do we think that it was right for the High Court to interfere with the award of a Labour Court under Art. 226 on a mere technicality. Article 226 is a device to secure and advance justice and number otherwise. In the result, we allow the appeal, set aside the judgment of the High Court and restore the award of the Presiding Officer, Labour Court.
ALTAMAS KABIR, J. The Petitioner herein has challenged the order of the Bombay High Court dismissing the Criminal Writ Petition No.1839 of 2005, in which he had challenged the order dated 19th October, 2004, passed by the Maharashtra State Human Rights Commission in Case No.1912/2002/3258. The companyplainant in the said case was one Smt. Suman Sriram Gholap, the Respondent No.1 herein. In the said companyplaint, the State of Maharashtra was made the Respondent No.1 through the Commissioner of Police, Brihan Mumbai. The Respondent Nos.2, 4 and 5 were police personnel attached to Shahunagar Police Station, Mumbai-17. The Petitioner herein was made the third Respondent in the said companyplaint case. It was the case of the companyplainant that the Respondents had violated the human rights of one Baban, the son of the companyplainant, within the scope of Section 12 a of the Protection of Human Rights Act, 1993. The facts revealed in the companyplaint and which came to light during the hearing thereof by the Maharashtra State Human Rights Commission, Mumbai, hereinafter referred to as the Commission, indicate that the companyplainant, who is a widow, had two sons, one Kisan and the other Baban. She resides in Sanjay Gandhi Nagar Zopadpatti, Matunga, and works as a domestic servant to earn her livelihood. Her elder son, Kisan, lives with his family at Vashi at New Mumbai and the companyplainant lives with her unmarried younger son, Baban, at Matunga. In 1998, Baban was arrested by the Dharavi Police in companynection with a case which was tried by the Court of Sessions and he was acquitted in respect thereof on 2nd May, 2002. Thereafter, various cases were lodged against Baban and after his acquittal in the case filed by the Dharavi Police, he left Matunga and went to reside with his elder brother at Vashi where he earned a living by selling fruits as a street vendor. On weekends he used to companye to see the companyplainant and on 30th June, 2002, he had companye to Matunga to meet the companyplainant. While he was at his mothers place of residence, the Respondent No.4 before the Human Rights Commission, ASI K.R. Kubel, along with some other police personnel, came and asked Baban to accompany them to the police station. He was, however, released on the next day. On 8th August, 2002, at about 8.00 a.m., Baban had gone to the stall of one Abbas Bhai. According to the companyplainant, he was assaulted and injured by the said Abbas Sayyed Ali Kadri Abbas Ali. The companyplainant took him with bleeding injuries to the police station where she was asked to wait by the Duty Officer. In the meantime, the said Abbas Ali and his three brothers and some women came to the police station and soon thereafter the police personnel came out and started assaulting Baban. The petitioner herein told the companyplainant to leave the police station. It is the companyplainants case that she was also abused and forcibly removed from the police premises while Baban was detained. An hour later, the police personnel took Baban to hospital while the companyplainant went home. It is also the companyplainants case that when in the evening she went to the police station to enquire about her son, she saw that he had been placed in the police lockup. She was thereafter informed by Havildar Kubel that her son would number be released from the police station and, accordingly, next day she went to the Court of the Magistrate at Bandra, where Baban was to be produced for the purpose of remand. It was mentioned by the companyplainant in her companyplaint that she had been threatened by the police officers in question number to reveal the incidents of the previous day, but when Baban was produced she numbericed that he had bandages all over his body and there were injuries on his back and hand. The companyplainant was threatened number to make any companyplaint to the Court as otherwise her son would be involved in other crimes. Subsequently, Baban was released on bail on 6th September, 2002, but was, once again, taken to the police station on 30th September, 2002, and was assaulted allegedly on the ground that he had assaulted Abbas Alis son. It was the grievance of the companyplainant that instead of recording the companyplaint made by her or her son against Abbas Ali, the police registered a case against her son at the behest of Abbas Ali and illegally detained him in policy custody till he was released on bail. She also submitted that the police had been harassing her and her sons without any cause or justification and appropriate action should, therefore, be taken against them. The companyplainants allegations were fully supported by her son Baban who reiterated that he had been ill-treated by the police personnel. In reply to the charges against the Respondents, all the Respondents filed their respective replies denying the allegations, and in particular, in the report submitted by the Deputy Commissioner of Police, Zone V, Worli, Mumbai, it was mentioned that the companyplainants son, Baban, had gone to the shop of Abbas Ali on 8th August, 2002, and demanded a sum of Rs.5,000/- as hafta. On Abbas Alis refusal to pay the same, Baban assaulted him with a razor and threatened him that he would companye again the next day. After being treated at Sion Hospital, the said Abbas Ali lodged a companyplaint with the Shahunagar Police Station, on the basis of which Crime No.99 of 2002 was registered against Baban under Sections 387 and 324 IPC, in pursuance whereof Baban was arrested. The report of the Deputy Commissioner of Police also revealed that Baban was a habitual offender against whom several criminal cases had been initiated under Sections 326, 114, 379, 452, 342 and even 376 IPC between 1992 and 1995 with the Dharavi Police Station. It was also pointed out that proceedings for detention had also been companymenced against Baban under the Maharashtra Preventive of Dangerous Activities of Slumlords, Bootleggers Drug Offenders Act, 1981. As far as the police personnel, including the petitioner herein, are companycerned, they had only arrested the companyplainants son on the companyplaint made by Abbas Ali, who is a food grain merchant at the Gandhi Nagar Labour Camp, Mumbai, under Sections 387 and 324 IPC and they had acted on the instructions of their superiors. Reference was also made to an order of detention which had been passed against Baban on 27th February, 2002, and the various other crimes registered against him and his brother Kisan with the Dharavi Police Station. On the basis of the said allegations, a companyplaint came to be filed by the Respondent No.1 before the Maharashtra State Human Rights Commission, Mumbai, alleging that instead of recording the companyplaint made by her or her son against Abbas Ali, the Petitioner and the Respondent Nos.3 to 5 showed undue indulgence to the said Abbas Ali by registering a case against her son at the behest of Abbas Ali and illegally detained him in police custody till he was released on bail. Upon numberice being served, the Petitioner herein and the other Respondents appeared before the Commission and filed their respective affidavits, which were companysidered in detail by the Commission. The Commission numbericed that numberaffidavit had been filed on behalf of Abbas Ali number was any oral evidence adduced on his behalf. Furthermore, numberattempt was made by any of the police officers, including the Petitioner herein, to summon the witnesses to the occurrence according to their version. Ultimately, the Commission observed as follows - On appreciation of the discrepancies and companytradictions in unfolding the alleged incident either of extortion or assault by Baban on Abbas Ali, it seems that the entire version presented in defence is numberhing but a companycoction. On the other hand, the companyplainant and her son Baban had stated that when they rushed to the police station to lodge a companyplaint, they were asked to wait outside. After some time, Abbas Ali and his brothers and some women came to the police station and they were entertained first by the police and though Baban was the victim of the assault, he was illegally arrested. The Commission also disbelieved the defence of the police personnel that Baban inflicted injuries with a razor on himself having regard to the medical evidence of Dr. Raju Patel of the Lokmanya Tilak General Hospital, which did number support such theory. The Commission also took numbere of the Doctors evidence that Baban had companyplained of chest pain and had been removed to hospital at 2.30 a.m. He was treated for tenderness over the left anterior chest, which indicated hairline fracture on his ribs. In the said facts, the Commission had numberhesitation in holding that there had been violation of Babans human rights at the hands of the Respondent Nos.3, 4 and 5 and the Petitioner herein. On account of the above, the Commission recommended as follows - a the State Government shall pay to the companyplainant on behalf of the victim of Police atrocity a sum of Rs.45,000/- as companypensation and recover the same from the respondents PSI Shri G.G. Navele, PSI Shri J.P. Sankpal, PSI Shri K.R. Kubal equally b that the State Government shall submit within six seeks from the receipt of these directions its companypliance report to the Commission. The said order of the Commission was challenged by the Petitioner herein before the Bombay High Court, which dismissed the same by the impugned order dated 30th August, 2006, indicating that since the State of Maharashtra had number challenged the order dated 19th October, 2004, passed by the Commission and had also companyplied with the same, there was numbernecessity of entertaining the writ petition, particularly, on account of the fact that an earlier petition filed by the Petitioner herein where he had sought relief challenging the said order came to be withdrawn. Appearing for the Petitioner, Mr. K.N. Rai, learned Advocate, submitted that the antecedents of Baban, the son of the Respondent No.1 herein, would clearly go to show that he was a habitual offender and had been involved in various criminal cases registered against him as he was creating a reign of terror in the minds of the public in the Matunga Railway Colony, Sanjay Gandhi Nagar, Kunchi Kurve Nagar, Matunga Labour Camp and areas adjoining thereto, within the jurisdiction of Dharavi and Shahunagar Police Stations, and had even been detained under the Maharashtra Preventive Detention Act by the Commissioner of Police, Greater Mumbai, which order has been companyfirmed by the Advisory Board. Mr. Rai submitted that the Commission had overlooked the affidavits filed by the Petitioner and the Respondent Nos.3 to 5 as well as the report of the Deputy Commissioner of Police, Zone V, Worli, Mumbai. Mr. Rai submitted that aggrieved by the recommendation made by the Commission, the Petitioner had filed Writ Petition No.975 of 2005 in the Bombay High Court which was withdrawn on account of the understanding given to him on behalf of the State of Maharashtra that it had decided number to implement the order passed by the Commission. Mr. Rai submitted that the same should number be taken into companysideration while companysidering the writ petition which had subsequently been filed challenging the order of the Commission, since the earlier writ petition was withdrawn on the basis of an occurrence which never materialised. Mr. Rai lastly submitted that there was numberhing on record to indicate that Baban had actually been assaulted by the Petitioner or the Respondent Nos.3 to 5, except for the allegations made by him and the statement made by the doctor that he had numbericed certain tenderness over certain parts of Babans body. Mr. Rai urged that having regard to the antecedents of Baban, the defence taken that he had inflicted injuries on himself with a razor in order to implicate the Petitioner and the Respondent Nos.3 to 5, companyld number be ruled out and ought number to have been rejected by the Commission. As far as the State of Maharashtra is companycerned, it has been submitted that the recommendation of the State Human Rights Commission had since been implemented and since the State had chosen number to challenge the order of the Commission, numberseparate submission would be made on behalf of the State. Having regard to the special emphasis laid by Mr. Rai on Babans antecedents, we have carefully companysidered the order of the Commission which was upheld by the High Court and we see numberreason to differ with the same.
V.RAVEENDRAN, J. One Ammasai Gounder filed a suit against A.T.Krishnasami Mudaliar and another for recovery of amounts due towards supply of jaggery in S.No.226 of 1946 on the file of the Sub-Court, Coimbatore. The suit was decreed on 14.10.1947. The defendants in the suit filed an appeal in the Madras High Court in A.S.No.713 of 1947. On an application by the defendants appellants in that appeal , stay of execution of the decree was granted subject to the defendants depositing the decretal amount in companyrt. The High Court permitted the plaintiff respondent in that appeal to withdraw the said decretal amount after furnishing security to the satisfaction of the companyrt. One Ramaswami Gounder became the surety and gave his agricultural lands as security for the amount permitted to be withdrawn by the plaintiff. The appeal by the defendants was allowed by the High Court on 31.10.1952 and the money decree granted in O.S.No.226 of 1946 was set aside. Consequently, the defendants in the suit moved an application for restitution under section 144 of the Code of Civil Procedure CPC for short . The plaintiff did number repay the amount withdrawn by him and absconded. Therefore the defendants filed E.P.No.134/1957 for recovery of the amount by sale of the lands offered as security by Ramaswami Gounder. The lands offered as security were sold by auction on 16.11.1960 and 6.9.1961. The fifth Respondent and predecessors of respondents 6 to 26 are stated to be the auction purchasers. During the pendency of the said execution proceedings, the surety Ramaswami Gounder died and his widow Rajammal was impleaded as his legal representative. On 14.12.1960, Rajammal moved an application EA No.148 of 1961 under Order 21 Rule 89 CPC for setting aside the auction sale. But she did number deposit the amount mentioned in the sale proclamation number the amount equal to 5 of the purchase money, as required under the said rule. By order dated 17.9.1966, her application for setting aside the sale was rejected. Rajammal challenged the said dismissal before the High Court in CMA No.337 of 1966. The High Court by its judgment dated 26.8.1971 dismissed the appeal of Rajammal and companyfirmed the order of the Executing Court. Rajammal challenged the said judgment in an appeal by special leave before this Court CA No.382 of 1973 . During the pendency of the said appeal, Rajammal moved an application for scaling down the debt and setting aside the auction sale under the provisions of the Tamil Nadu Agriculturists Relief Act, 1938 Act for short . This Court by order dated 7.11.1986 dismissed Rajammals appeal, but however, referred the application for scaling down the debt and setting aside the sale under the Act, to the Subordinate Court, Coimbatore, for disposal in accordance with law. It is stated that Rajammal settled the lands which had been offered as security, as also some other properties in favour of one Chinna Pappu Gounder, brother of her husband Ramasami Gounder under registered settlement dated 3.6.1960. The appellants herein are the legal heirs of the said Chinna Pappu Gounder. When the matter referred by this Court was received by the Executing Court, Rajammal and the appellants herein filed the following three applications EA No.1612 of 1987 under 19A of the Act for determination of the amount to be paid by them to the decree holders defendants in the suit by scaling down the amount under sections 7 and 8 of the Act. EA No.1613 of 1987 under section 23C of the Act for setting aside the companyrt auction sale held on 16.11.1960 and 6.9.1961. EA No.782 of 1988 under Order 34, Rule 5 read with section 151 of CPC for fixing the date of depositing the amount found due by the legal representatives of the surety. The said three applications were dismissed by the Executing Court by a companymon order dated 22.9.1992. It held that as the amount claimed in the execution petition was by way of restitution under section 144 CPC by enforcing the security under section 145 CPC, neither section 19A number section 23C of the Act was attracted. The companyrt also held that the amount recoverable by restitution secured by the properties of the surety Ramasami Gounder, was number a mortgage debt and therefore the provisions of Order 34 CPC were number attracted. The executing companyrt was of the view that the remedy if any of the surety or his legal representatives was only by an application under Order 21 Rule 89 CPC and that remedy had already been exhausted on account of rejection of the application filed under the said provision. The said order was challenged by the Appellants in CRP Nos.3162-64 of 1992. The High Court was of the view that companysideration of other two applications would depend upon the decision on the application under section 23C of the Act. The High Court therefore companysidered the said application first. It held that section 23C would apply only where immovable properties of an agriculturist were sold or foreclosed on or after 1.3.1972 and as the sale in this case took place in the year 1960 and 1961, the said section companyld number be invoked. Consequently, it found numbererror in the rejection of the three applications. The High Court, therefore, by its order dated 26.2.1998, dismissed the said revision petitions which is challenged in this appeal by special leave. The application under Rule 5 of Order 34 CPC was misconceived, as the proceedings did number relate to a mortgage suit. Section 145 of CPC provides that where any person has furnished any property as security for the payment of any money or for the fulfillment of any companydition imposed on any person under an order of a companyrt in any suit or in any proceedings companysequent thereon, such order may be executed in the manner provided in the Code for the execution of decrees, by sale of such property. Consequently, the recovery of the amount due to the defendants was governed by sections 144 and 145 read with provisions of Order 21 CPC. The provisions of Order 34 CPC were inapplicable and there was numberquestion of invoking Rule 5 of Order 34 to fix a date for depositing the amount due. The application under Order 34 Rule 5 CPC was rightly rejected. The application under section 19A of the Act was also misconceived and rightly rejected. Section 19A of the Act provides for filing an application for the determination of the amount of debt due by an agriculturist. But the said section applied only in regard to debts of an agriculturist other than a decree debt. Having regard to the definition of the term decree, any amount recoverable under section 144 read with section 145 CPC by way of restitution, will also be a decree debt. Insofar as the application under section 23C of the Act, learned companynsel for appellant submitted that the application was intended to be one under section 23A of the Act, but due to a typographical error, the provision of law was wrongly mentioned as section 23C. Though such a companytention was number urged before the High Court, we permitted him to urge the companytention. Section 23A of the Act reads as under 23-A. Power of Court to set aside sale of immovable property in certain cases - Where in execution of any decree, any immovable property, in which any person entitled to the benefits of the Tamil Nadu Agriculturists Relief Amendment Act, 1948, had an interest, has been sold or foreclosed on or after the 30th September, 1947, and the sale has number been companyfirmed before the companymencement of the said Act or ninety days have number elapsed from the companyfirmation of the sale or from the foreclosure, at such companymencement, then, numberwithstanding anything companytained in the Indian Limitation Act, 1908 Now the Limitation Act, 1963 Central Act 36 of 193 , or in the Code of Civil Procedure, 1908, and numberwithstanding that the sale has been companyfirmed, any judgment-debtor claiming to be entitled to the benefits of the said Act, may apply to the Court within ninety days of such companymencement or of the companyfirmation of the sale, whichever is later, to set aside the sale or foreclosure of the property, and the Court shall, if satisfied that the applicant is a person entitled to the benefits of the said Act, order the sale or foreclosure to be set aside, and thereupon the sale or foreclosure shall be deemed number to have taken place at all Provided that numbersuch order shall be made without numberice to the decreeholder, the auction-purchaser, and other persons interested in such sale or foreclosure and without affording them an opportunity to be heard in the matter. emphasis supplied The fact that agricultural lands were sold in an auction and that the owners of such lands were agriculturists, are number by themselves sufficient to invoke the exercise of power under section 23A of the Act. The companyrt can set aside a sale of immovable property under the said section only if the companyrt is satisfied that the applicant is a person entitled to the benefits of the Act. As numbericed above, the only benefit claimed by the appellants under the Act was scaling down of the debt and determination of the scaled down amount. We have already held that the said application was number maintainable. The appellants have number been able to demonstrate how they are entitled to any of the benefits under the said Act. A perusal of the Act shows that the reliefs that can be granted under the Act are scaling down of debts and rates of interest relief in regard to the usufructuary mortgages companycessions in regard to interest payable by agriculturists on loans companyditional discharge of arrears of rent due to land holders and scaling down of interest on arrears of rent. But numbere of these are applicable to the recovery by way of restitution, by enforcing the security. Scaling down of the debt is permissible only where the amount paid or payable by way of principal and interest is more than twice the amount of the principal. That does number apply in this case. This is number a case of usufructuary mortgage. Nor is any interest payable on any loan. Nor is the claim for any rent payable.
ORIGINAL JURISDICTION Writ Petition No. 118 of 1968. Petition under Art. 32 of the Constitution of India for enforcement of the fundamental rights. Datta, for the petitioner. K. Daphtary, Attorney-General, B.D. Sharma and R.H. Dhebar, for respondents Nos. 1 to 5. The Judgment of the Court was delivered by Ramaswami, J. In this case the petitioner has obtained a rule from tiffs Court asking the respondents to show cause why a writ in the nature of certiorari should number be issued under Art 32 of the Constitution for calling up and quashing the proceedings before the General Court Martial No. JAG 26/66-67/AA of 1965 from the Judge Advocate General Army branch , Army Headquarters whereby the petitioner was found guilty of charges under s. 304 and s. 149 of the Indian Penal Code and sentenced to a period of 6 years rigorous imprisonment and cashiering. Cause has been shown by the Attorney-General on behalf of the Union of India and other respondents to whom numberice of the rule was ordered to be given. The petitioner was companymissioned in the Indian Army in February, 1964 and was posted as Second Lt. E.C.-55461 and was attached to 397 Engineering Construction Equipment Company in December, 1964. In August, 1965 the petitioner was posted as a Quarter Master and was transferred to Madras along with the Company. It appears that Wednesday, September 1, 1965 was to be celebrated as the Raising Day of the Unit when Games and Sports, entertainment and Bara Khana evening dinner were to be arranged. In this celebration, all officers and other ranks of the Unit had to take some part and a number of other Army officers were to be received and entertained on behalf of the Unit. At the variety entertainment Punjabis and Garhwalis took part and each party was given free one bottle of rum. But it is alleged that the Purbias were number given an opportunity to put up their show and were number given free a bottle of rum. They were companysequently aggrieved for this reason. The variety entertainment companycluded at about 1900 hours at the end of which rum was issued to the jawans. The bara khana was to companymence at 2000 hours. As there was a delay in the assembly of the men at the dining hall, Maj. Agarwal sent the petitioner to the lines to find out the cause for the delay and to get the men quickly. The petitioner went to the lines and it is alleged that the accused used filthy language while addressing the men. Some of the Purbias including the deceased Spr. Bishwanath Singh protested against the use of such language. Though the petitioner expressed regret, the men were number satisfied. A few of the Sikh jawans, including some of the accused, sided with the petitioner and there was a heated argument between the two groups on their way to the dining hall. The bara khana was served in two sittings. The petitioner did number join the first sitting but joined the second sitting which companysisted of about 30 to 40 men. The quarrel which started between the two groups earlier was companytinued in the dining hall. The lights went off for a few minutes and when the lights came on, it was observed that a scuffle was going on in the middle of the hall between the petitioner and other Sikh jawans and the deceased. As the scuffle progressed, the deceased was surrounded by petitioner No. 1 and the other accused persons and the group moved towards the service companynter. The lights went off for a second time. In the darkness tables, benches and plates were hurled about. Most of the men ran out of the dining hall. It is alleged that accused No. 6 was seen stabbing with a knife Spr. Bishwanath Singh and the latter slumped to the ground. Accused No. 3 hit him with a soot rake. When the lights came on after a few minutes, the petitioner and the other accused were found standing near the place where Spr. Bishwanath Singh had fallen. Consequently, Maj. Agarwal arrived at the scene and took Spr. Bishwanath Singh to. the MI room where he was found dead by Maj. Koley, the Medical Officer. It appears that on September 2, 1965 at about 0400 hours the matter was reported to the Civil Police by Second Lt. F.D.A. Jesudian. A case under s. 302, Indian Penal Code was registered as crime No. 726/1965 at Pallavaran Police Station, Madras. Sri Bashyam, Inspector of Police reached the place of occurrence at 0430 hours on the same date. He inspected the dining hall and seized certain exhibits produced by Maj. Agarwal. He also held inquest on the deadbody of Spr. Bishwanath Singh and sent the dead-body for postmortem examination to. the mortuary, Madras General Hospital through Police Constable No. 1407, Ratnam. He sent the exhibits seized to the State Forensic Science Laboratory, Madras for chemical examination. At 1330 hours on the same date Sri Bashyam stopped further investigations as Lt. Col. Bajpai wanted the case to be handled by the Military authorities. On September 2, 1965, a Court of Enquiry under the provisions of Ch. VI. of the Army Rules was ordered by the Commander, Mysore and Kerala Sub-Area. After the Court of Inquiry had companycluded the proceedings, a Court Martial was companystituted by an order, dated August 11, 1966 by Major- General. S.J. Sathe, General Officer Commanding, Madras, Mysore and Kerala area to try the petitioner and other accused persons. The Court Martial assembled on August 18, 1966 and companyducted its proceedings on several subsequent dates. In support of the case of the prosecution 30 witnesses were examined. At the Court Martial, the defended by an Advocate of the Madras High Court, petitioner was Sri Natarajan and he was also as by assisted a friend of the accused Major T.B. Narayanan. At the trial the Counsel for the petitioner cross-examined the witnesses for the prosecution and after the prosecution evidence was companycluded, the petitioner said that he did number intend to call any defence witnesses. The petitioner, however, submitted a written statement. He was also put various questions by the Court Martial to which he replied. After the Counsel for the defence was heard and after the Judge-Advocate summed up the case, the Court Martial came to the finding that the petitioner was guilty of culpable homicide number amounting to murder and that he was a member of an unlawful assembly and the petitioner was sentenced to cashiering and 6 years rigorous imprisonment. Against the decision of the Court Martial the petitioner field a petition under s. 164 of the Army Act but the petition was dismissed by the companyfirming authority and the finding and sentence by the Court Martial was companyfirmed so far as the petitioner was companycerned. The petitioner thereafter filed an appeal under s. 165 of the Army Act to the Central Government but the appeal was dismissed. The first question to be companysidered in this case is whether the Court Martial had jurisdiction to try and companyvict the petitioner of the offences under ss. 304 and 149, Indian Penal Code. It was companytended by Mr. Dutta on behalf of the petitioner that the Court Martial had numberjurisdiction having regard to the mandatory provisions companytained in s. 125 of the Army Act and having also regard to the fact that Maj. Agarwal had, in the first instance, decided to hand over the matter for investigations to the Civil Police. In order to test whether this argument is valid it is necessary to scrutinize the provisions of the Army Act in some detail.Section 2 of the Army Act, 1950 Act 46 of 1950 , hereinafter called the Army Act, describes the different categories of army personnel who are subject to the Army Act. Section 3 ii defines a civil offence to mean an offence which is triable by a criminal companyrt s. 3 vii defines a companyrt-martial to mean a companyrt to mean a companyrt of ordinary criminal justice in any part of India other that the state of Jammu and Kashmir s. 3 xvii defines offence to mean any act or omission punishable under this act and includes a civil offence and s. 3 xxv declares that all words and expressions used but number defined in this Act and defined in the Indian Penal Code shall be deemed to have the meanings assigned to them in that companye. chapter is Offences. As we have already numbericed, the word offence is defined to mean number only any act or omission punishable under the Army Act, but also a civil offence. Sections 34 to 68 define the offences against the Act triable by companyrt-martial and also indicate the punishments for the said offences. Section 69 states as follows Subject to the provisions of sect.ion 70, any person subject to this Act who at any place in or beyond India companymits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a companyrt-martial and, on companyviction, be punishable as follows, that is to say,-- a if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned and b in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned. Section 70 provides A person subject to this Act who companymits an offence of murder against a person number subject to military, naval or air force law, or of culpable homicide number amounting to murder against such a person or of rape in relation to such a person, shall number be deemed to be guilty of an offence against this Act and shall number be tried by a companyrt-martial, unless he companymits any of the said offences-- a while on active service, or b at any place outside India, or c at a frontier post specified by the Central Government by numberification in this behalf. Explanation.--In this section and in section 69, India does number include the State of Jammu and Kashmir. Shortly stated , under this Chapter there are three categories of offences, namely, 1 offences companymitted by a person subject to the Act triable by a companyrt-martial in respect whereof specific punishments have been assigned 2 civil offences companymitted by the said person at any place in or beyond India, but deemed to be offences companymitted under the Act and, if charged under s. 69 of the Act, triable by a companyrt-martial and 3 offences of murder and culpable homicide number amounting to murder or rape companymitted by a person subject to the Act against a person number subject to the military law. Subject to a few exceptions, they are number triable by companyrt-martial, but are triable only by ordinary criminal companyrts. The legal position therefore is that when an offence is for the first time created by the Army Act, such as those created by ss. 34, 35, 36, 37 etc., it would be exclusively triable by a companyrt-martial but where a civil offence is also an offence under the Act or deemed to be an offence under the Act, both an ordinary criminal companyrt as well as a companyrt-martial would have jurisdiction to try the person companymitting the offence. Such a situation is visualized and provision is made for resolving the companyflict under ss. 125 and 126 of the Army Act which state When a criminal companyrt and a companyrt-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer companymanding the army, army companyps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which companyrt the proceedings shall be instituted, and, if that officer decides that they should be instituted before a companyrtmartial, to direct that the accused person shall be detained in military custody. 126. 1 When a criminal companyrt having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written numberice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government. In every such case the said officer shall either deliver over the offender in companypliance with the requisition or shall forthwith refer the question as to the companyrt before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final. Section 125 presupposes that in respect of an offence both a criminal companyrt as well as a companyrt-martial have each companycurrent jurisdiction. Such a situation can arise in a case of an act or omission punishable both under the Army Act aS well as under any law in force in India. It may also arise in the case of an offence deemed to be an offence under the Army Act. Under the -scheme of the two sections, in the first instance, it is left to the discretion of the officer mentioned in s. 125 to decide before which companyrt the proceedings shall be instituted, and, if the officer decides that they should be instituted before a companyrt-martial, the accused person is to be detained in military custody but if a criminal companyrt is of opinion that the said offence shall be tried before itself, it may issue the requisite numberice under s. 126 either to deliver over the offender to the nearest magistrate or to postpone the proceedings pending a reference to the Central Government. On receipt of the said requisition, the officer may either deliver .over the offender to the said companyrt or refer the question of proper companyrt for the determination of the Central Government whose order shall be final. These two sections of the Army Act provide a satisfactory machinery to resolve the companyflict of jurisdiction, having regard to the exigencies of the situation in any particular case. In the present case, we are unable to accept the companytention of the petitioner that merely because Maj. Agarwal had directed that the First Information Report should be lodged with the Civil Police through Second Lt. Jesudian, it means that the companypetent authority under s. 125 of the Army Act had exercised its discretion and decided that the proceedings should be instituted before the criminal companyrt. The reason is that Maj. Agarwal was number the companypetent authority under s. 125 of the Army Act to exercise the choice under that section. The companypetent authority was the General Officer Commanding, Madras, Mysore and Kerala Area and that authority had decided on September 2, 1965 that the matter should be tried by a Court-Martial and number by the Criminal Court. On the same date, the General Officer Commanding, Madras, Mysore Kerala Area had ordered the companystitution of the Court-Martial under Ch. VI of the Army Rules to investigate into the case of the petitioner and the other accused persons. There was admittedly number direction by the Commander of that area to hand over the proceedings to the Criminal Court. It is true that Maj. Agarwal had directed a report to be lodged with the Civil Police at 4.00 a.m. on September 2, 1965. It is also true that Sri Bashyam, Inspector of Police had inspected the place of occurrence, seized certain exhibits and held inquest of the deadbody of Spr. Bishwanath Singh. Sri Bashyam has admitted that he stopped investigations on the same date as directed by the military authorities. Merely because Sri Bashyam companyducted the inquest of the dead-body of Spr. Bishwanath Singh or because he seized certain exhibits and sent them to the State Forensic Science Laboratory, Madras for chemical examination, it cannot be reasonably argued that there was a decision of the companypetent military authority under s. 125 of the Army Act for handing over the inquiry to the Criminal Court. On the other hand, the action of the General Officer Commanding in companystituting the Court of Inquiry on September 2, 1965 indicates that there was a decision taken under s. 125 of the Army Act that the proceedings should be instituted before the Court-Martial. The second branch of the argument of the petitioner is based upon s. 549 of the Criminal Procedure Code which states The Central Government may make rules companysistent with this Code and the Army Act, the Naval Discipline Act and the Indian Navy Discipline Act, 1934, and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which this Code applies, or by Court martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable, to be tried either by a Court to which this companye applies or by a Court-martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the companymanding officer of the regiment, companyps, ship or detachment, to which he belongs, or to the companymanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial. The Central Government has made rules in exercise of powers companyferred on it under this section. The Rules were published at p. 690 in s. 3 of Part H of the Gazette of India, dated April 26, 1962, under Ministry of Home Affairs, R.O. 709, dated April 17, 1962. Rules 3, 4, 5 and 8 are to the following effect Where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with an offence for which he is liable to be tried by a companyrtmartial, such Magistrate shall number proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to his companymitment for trial by the Court of Sessions or the High Court for any offence friable by such Court, unless a he is of opinion, for reasons to be recorded, that he should so proceed without being moved thereto by companypetent military, naval or Air Force authority, or b he is moved thereto by such authority. Before proceeding under clause a of rule 3 the Magistrate shall give written numberice to the Com- Sup C1/69--13 manding Officer of the accused and until the expiry of a period of seven days from the date of the service of such numberice he shall number- a companyvict or acquit the accused under sections 243, 245, 247 or 248 of the Code of Criminal Procedure, 1898 V of 1898 , or hear him in his defence under section 244 of the said Code or b frame in writing a charge against the accused under section 254 of the said Code or c make an order companymitting the accused for trial by the High Court or the Court of Sessions under section 213 of the said Code. Where within the period of seven days mentioned in rule 4, or at any time thereafter before the Magistrate has done any act or issued any order referred to in that rule, the Commanding Officer of the accused or companypetent military, naval or Air Force authority, as the case may be, gives numberice to the Magistrate that in the opinion of such authority, the accused should be tried by a companyrt-martial, the Magistrate shall stay proceedings and if the accused is in his power or under his companytrol, shall deliver him, with the statement prescribed in sub-section 1 of section 549 of the said Code to the authority specified in the said sub-section. Notwithstanding anything in the foregoing rules, where it companyes to the numberice of a Magistrate that a person subject to military, naval or Air Force law has companymitted an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured unless through military, naval or Air Force authorities, the Magistrate may by a written numberice require the Commanding Officer of such person either to deliver such person to a Magistrate to be named in the said numberice for being proceeded against according to law, or to stay the proceedings against such person before the companyrt-martial, if since instituted, and to make a reference to the Central Government for determination as to the Court before which proceedings should be instituted. It was argued on behalf of the petitioner that there was numbernotice given by the Commanding Officer to the Magistrate under Rule 5 that the petitioner should be tried by a Court- Martial and hence the criminal companyrt alone had jurisdiction under Rule 3 to companyduct proceedings against the petitioner for the offences charged. In our opinion, the argument on behalf of the petitioner is mis-conceived. The rules framed by the Central Government under s. 549 of the Criminal Procedure Code apply to a case where the proceedings against the petitioner have already been instituted in an ordinary criminal companyrt having jurisdiction to try the matter and number at a stage where such proceedings have number been instituted. it is clear from the affidavits filed in the present case that the petitioner was number brought before the Magistrate and charged with the offences for which he was liable to be tried by the Court- Martial within the meaning of Rule 3 and so the situation companytemplated by Rule 5 has number arisen and the requirements of that rule are therefore number attracted. It was pointed out by Mr. Dutta that after the First Information Report was lodged at Pallavaran police station a companyy thereof should have been sent to the Magistrate. But that does number mean that the petitioner was brought before the Magistrate and charged with the offences within the meaning of Rule 3. It is manifest that Rule 3 ,only applies to a case where the police had companypleted investigation and the accused is brought before the Magistrate after submission of a chargesheet. The provisions of this rule cannot be invoked in a case where the police had merely started investigation against a person subject to. military, naval or air force law. With regard to the holding of the inquest of the deadbody of Spr. Bishwanath Singh it was pointed out by the Attorney-General that Regulation 527 of the Defence Services Regulations has itself provided that in cases of unnatural death that is death due to suicide, violence or under suspicious circumstances information should be given under s. 174, Criminal Procedure Code to the Civil authorities, and the companyduct of Maj. Agarwal in sending information to the Civil Police was merely in accordance with the provisions of this particular regulation. For these reasons we hold that Counsel for the petitioner is unable to make good his argument on this aspect of the case. We proceed to companysider the next argument presented on behalf of the petitioner, namely, that even if the Military Court-Martial had jurisdiction, it companyld number give a finding of guilt against the petitioner with regard to culpable homicide number amounting to murder unless the charge was .altered and amended in accordance with sub-rule 2 of Rule 50 of the Army Rules, 1954. It was also companytended on behalf of the petitioner that the procedure companytemplated by Rule 121 4 of the Army Rules was number followed by the Court- Martial and the finding of the Court-Martial must therefore be held to be defective. In our opinion, there is numberwarrant or justification for this argument since rules 50 2 and 121 4 have numberapplication to the present case. Rules 50 and 121 provide as follows Amendment of charge.-- 1 At any time during the trial, if it appears to the companyrt that there is any mistake in the name or description of the accused in the charge-sheet, the companyrt may amend the chargesheet so as to companyrect that mistake. 2 If, on the trial of any charge, it appears to the companyrt at any time before it has begun to examine the witnesses, that in the interests of justice any addition to, companymission from, or alteration in, the charge is required, it may report its opinion to the companyvening authority, and may adjourn, and the companyvening authority may either direct the new trial to be companymenced, or amend the charge, and order the trial to proceed with such amended charge after due numberice to the accused. Form and record of finding.-- 1 The finding on every charge upon which the accused is arraigned shall be recorded, and except as mentioned in these rules, such finding shall be recorded simply as a finding of Guilty or of Not guilty. When the companyrt is of opinion as regards any charge that the facts proved do number disclose the offence charged or any offence of which he might under the Act legally be found guilty on the charge as laid, the companyrt shall acquit the accused of that charge. When the companyrt is of opinion as regards any charge that the facts found to be proved in evidence differ materially from the facts alleged in the statement of particulars in the charge, but are nevertheless sufficient to prove the offence stated in the charge, and that the difference is number so material as to have prejudiced the accused in his defence, it may, instead of a finding of Not guilty record a special finding. The special finding may find the accused guilty on a charge subject to the statement of exceptions or variations specified therein. The companyrt shall number find the accused guilty on more than one of two or more charges laid down in the alternative, even if companyviction upon one charge necessarily companynotes guilt upon the alternative charge or charges. In the present ease there was numbernecessity for amending the charge by the Court-Martial under Rule 50 2 because that subrule only relates to an alteration of charge before the examination of witnesses. The Court-Martial has also number companytravened the provisions of Rule 121 4 because that subrule is number attracted to the present ease. On the companytrary, the finding of the Court Martial is justified in view of the language of s. 139 6 of the Army Act which states -- 139. 6 A person .charged before a companyrt-martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure., 1898, were applicable. We accordingly reject the argument of learned Counsel for the petitioner on this part of the case. Finally it was companytended on behalf of the petitioner that the order of the Chief of the Army Staff companyfirming the proceedings of the Court-Martial under s. 164 of the Army Act was illegal since numberreason has been given in support of the order by the Chief of the Army Staff. It was also pointed out that the Central Government has also number given any reasons while dismissing the appeal of the petitioner under s. 165 of the Army Act and that the order of the Central Government must therefore be held to be illegal and ultra vires and quashed by the. grant of a writ in the nature of certiorari. In this companytext it is necessary to reproduce ss. 164 and 165 of the Army Act which are to the following effect 164. 1 Any person subject to this Act who companysiders himself aggrieved by any order passed by any companyrt-martial may present a petition to the officer or authority empowered to companyfirm any finding or sentence of such companyrt-martial, and the companyfirming authority may take such steps as may be companysidered necessary to satisfy itself as to the companyrectness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. Any person subject to this Act who companysiders himself aggrieved by a finding or sentence of any companyrt martial which has been companyfirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in companymand to the one who companyfirmed such finding or sentence, and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such order thereon as it or he thinks fit. The Central Government, the Chief of the Army Staff or any prescribed officer may annul the proceedings of any companyrtmartial on the ground that they are illegal or unjust. In companytrast to these sections, s. 162 of the Army Act expressly provides that the Chief of the Army Staff for reasons based on the merits of the case set aside the proceedings or reduce the sentence to any other sentence which the companyrt might have passed. Section 162 reads as follows The proceedings of every summary companyrtmartial shall without delay be forwarded to the officer companymanding the division or brigade within which the trial was held, or to the prescribed officer and such officer, or the Chief of the Army Staff, or any officer empowered in this behalf by the Chief of the Army Staff, may, for reasons based on the merits of the case, but number any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the companyrt might have passed. It is necessary in this companytext to refer to Rules 61 and 62 of the Army Rules which prescribe the standard form of recording the opinion of the Court Martial on each charge and of announcement of that finding. These rules omit all mention of the evidence or the reasoning by which the finding is reached by the Court Martial. Rules 61 and 62 are to the following effect Consideration of finding.-- 1 The companyrt shall deliberate on its finding in closed companyrt in the presence of the judgeadvocates. The opinion of each member of the companyrt as to the finding shall be given by word of mouth on each charge separately. Form, record and announcement of finding.- 1 The finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of Guilty or of Not guilty. The finding on each charge shall be announced forthwith in open companyrt as subject to companyfirmation. In the present case it is manifest that there is numberexpress obligation imposed by s. 164 or by s. 165 of the Army Act on the companyfirming authority or upon the Central Government to give reasons in support of its decision to companyfirm the proceedings of the Court Martial. Mr. Dutta has been unable to point out any other section of the Act or any of the rule made therein from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the companyfirming authority. Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, we are unable to accept the companytention of Mr. Dutta that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In English law there is numbergeneral rule apart from the statutory requirement that the statutory tribunal should give reasons for its decision in every case. In Rex v. Northumberland Compensation Appeal Tribunal 1 it was decided for.the first time by the Court of Appeal that if there was a speaking order a writ of certiorari companyld be granted to quash the decision of an inferior companyrt or a statutory tribunal on the ground of error on the face of record. In that case, Denning, L.J. pointed out that the record must at least companytain the document which initiates the proceedings the pleadings, if any and the adjudication, but number the evidence, number the reasons, unless the tribunal chooses to incorporate them in its decision. It was observed that if the tribunal did state its reasons and those reasons were wrong in law, a writ of certiorari might be granted by the High Court for quashing the decision. In that case the statutory tribunal under the National Health Service Act, 1946 had fortunately given a reasoned decision in other words, made a speaking order and the High Court companyld hold that there was an error of law on the face of the record and a writ of certiorari may be granted for quashing it. But the decision in this case led to an anomalous result, for it meant that the opportunity for certiorari depended on whether or number the statutory tribunal chose to give reasons for its decision in other words, to make a speaking order. Not all tribunals, by any means, were prepared to do so, and a superior companyrt had numberpower to companypel them to give reasons except when the statute required it. This incongruity was remedied by the Tribunals and Inquiries Act, 1958 s. 12 , 6 7 Elizabeth 2 c. 66, which provides that on request a subordinate authority must supply to .a party genuinely interested the reasons for its decision. Section 12 of the Act states that when a tribunal mentioned in the First Schedule of the Act gives a decision it must give a written or oral statement of the reasons for the decision, if requested to do so on or before the giving or numberification of the decision. The statement may be refused or the specification of reasons restricted on grounds of national security, and the tribunal may refuse to give the statement to a person number principally companycerned with the decision if it thinks that to give it would be against the interests of any person primarily companycerned. Tribunals may also be exempted by the Lord Chancellor from the duty to give reasons but the Council on Tribunals must be companysulted on any proposal to do so. As already stated, there is numberexpress obligation imposed in the present case either by s. 164 or by s. 165 of the Indian Army Act on the companyfirming 1 1952 1 K.B. 338. authority or on the Central Government to give reasons for its decision. We have also number been shown any other section of the Army. Act or any other statutory rule from which the necessary implication can be drawn that such a duty is cast upon the Central Government or upon the companyfirming authority. We, therefore, reject the argument of the petitioner that the order of the Chief of the Army Staff, dated May 26, 1967 companyfirming the finding of the Court Martial under s. 164 of the Army Act or the order of the Central Government dismissing the appeal under s. 165 of the Army Act are in any way defective in law. For the reasons expressed we hold that the petitioner has made out numbercase for the grant of a writ under Art. 32 of the Constitution. The application accordingly fails and is dismissed.
The Income-tax Tribunal in respect of the assessment years 1976-77 and 1977-78 had referred three questions of law to the High Court for its opinion. The main companytroversy before the High Court was with regard to the applicability of Section 161 or 164 of the Income-tax Act, 1961, with regard to the assessment of the profits.
SANJIV KHANNA, J. The afore-captioned Civil Appeal impugns the judgment dated 6th July 2006 passed by the High Court of Punjab and Haryana which dismissed five writ petitions challenging the vires of the Punjab Religious Premises and Land Eviction and Rent Recovery Act, 1997 Religious Premises Act, for short . The appellants before us are tenants in occupation of shops located in Gurudwara Singh Sabha, a gurudwara at Kukar Majra, T. Road, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab. Signature Not Verified The appellants claim that they were inducted as tenants during the Digitally signed by SATISH KUMAR YADAV Date 2019.12.04 period 1965-69 by Gurudwara Singh Sabha. However, numberformal 164222 IST Reason lease or agreements were executed and albeit, over a period of Civil Appeal No. 3674 of 2009 Page 1 of 29 time, rents were progressively increased. The appellants further claim that they are small businessmen carrying on trade primarily companynected with steel industry, while one of the appellants runs a dhaba. By the letter dated 2nd March 1978, the appellants were informed that the affairs of the gurudwara had companye under the companytrol of Shiromani Gurdwara Parbandhak Committee SGPC for short and they should, therefore, pay the rent to SGPC. It is alleged that the appellants have been paying rent to SGPC or the manager of the gurudwara but receipts have number been regularly issued. In the year 1997, SGPC had filed an eviction petition against one of the appellants, Harbhajan Singh, under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 East Punjab Rent Act, for short on two grounds, viz., i failure to pay rent, and ii SGPC needed the property for companystruction of shops. Harbhajan Singh had, thereafter, deposited arrears of rent on the first date of hearing. The eviction proceedings, however, had remained pending and were number decided. On 29th January 1998, the Religious Premises Act was enforced, and thereby introduced a summary procedure for evicting unauthorised occupants from the premises property belonging to the religious institutions. Thereafter, SGPC had filed ejectment Civil Appeal No. 3674 of 2009 Page 2 of 29 petitions under the Religious Premises Act before the Collector for eviction of the appellants stating that the appellants were in unauthorised occupation. The appellants, on receipt of numberices from the Collector under Section 4 of the Religious Premises Act, had filed the writ petitions challenging the vires of the enactment before the High Court, which by the impugned judgment have been dismissed. The primary challenge before the High Court was to the explanation to clause a to Section 3 of the Religious Premises Act on the ground that the provision creates an unintelligible classification to the disadvantage of the tenants who are otherwise entitled to equal protection as other tenants under the East Punjab Rent Act. The pleas raised by the appellants were rejected by the Division Bench of the High Court after referring to the object and purpose behind the impugned enactment, that is, to preserve the property of religious institutions, by observing that public at large has an inherent interest in the religious institutions which were prone to maladministration and mismanagement. Referring to the definition of unauthorised occupants, it was observed that a person who is in occupation of the premises belonging to a religious institution on a valid allotment, lease or grant is number to be treated as an unauthorised occupant for the period of allotment, lease or grant. Civil Appeal No. 3674 of 2009 Page 3 of 29 The explanation states that mere payment of rent by the tenant who is in unauthorised occupation shall number raise any presumption that such person had entered into possession as an allottee, lessee or under a grant. Referring to the detailed and companyprehensive procedure for eviction under Sections 4 and 5 of the Religious Premises Act, it was held that the Collector has to be satisfied that the opposite party was in unauthorised occupation and only thereupon an eviction order can be passed after following the due procedure. A person aggrieved against the order passed by the Collector can file an appeal before the Commissioner under Section 8 of the Act. Referring to the factual matrix, the High Court has observed that all companytentions on merits should be raised before the authorities under the Religious Premises Act, in accordance with law. The primary companytention raised by the appellants before us is that as tenants they are entitled to protection against eviction under the East Punjab Rent Act, which protection it is submitted cannot be withdrawn and taken away under the Religious Premises Act. Further, the definition of unauthorised occupants, as a result of explanation to clause a of Section 3, is highly unjust and unfair as a tenant who has been paying rent over a long period is deemed to be in unauthorised occupation because of the Civil Appeal No. 3674 of 2009 Page 4 of 29 termination of the lease, licence or grant, or the time stipulated in the lease, license or grant has companye to an end. This it is submitted is unjust and unfair. The Religious Premises Act creates an artificial classification as tenants of land and buildings belonging to or owned by religious institutions are numberlonger entitled to protection under the East Punjab Rent Act though such protection companytinues to be available to other tenants. Expansion or companystruction of a new building by a religious institution as was pleaded by SGPC in their eviction petition under the East Punjab Rent Act would number justify eviction. There is numberpublic purpose or objective in enacting the law, that is, the Religious Premises Act, which has become a calculable device and means to increase income of the religious institutions. This Court in Ashoka Marketing Ltd. and Another v. Punjab National Bank and Others1 had examined and rejected the challenge to the vires of the Public Premises Eviction of Unauthorised Occupants Act, 1971 Public Premises Act, for short after recording that the property belonging to the government would fall under a separate class and that the government, while dealing with the citizens in respect of the property belonging to it, would number act for its own purpose as a private landlord but would act in public interest. This is a crucial distinction between the government and private 1990 4 SCC 406 Civil Appeal No. 3674 of 2009 Page 5 of 29 landlords and, therefore, for the same reasoning in inverse, the present appeal should be allowed as the Religious Premises Act creates an artificial distinction and discriminates against the tenants of religious institutions, though religious institutions as landlords are number a separate class. Thus, the Religious Premises Act should be declared unconstitutional and illegal as it violates Article 14 of the Constitution. The respondents, namely, the State of Punjab and also SGPC, have companytested the said submissions and companytentions. Their submissions and companytentions would be numbericed in the subsequent portion and in our reasoning below. The East Punjab Rent Act was enacted in the year 1949, soon after the Partition, with a view to protect tenants and to curtail the right of the landlords to seek eviction numberwithstanding the companytract under the provisions of the Transfer of Property Act, 1882, Transfer of Property Act, for short which is a general enactment regulating landlord and tenant relationships. There cannot be any doubt that the State legislature, that is, the Legislative Assembly of the State of Punjab is entitled to enact the Religious Premises Act, despite the fact that they had enacted the East Punjab Rent Act. We must accept and take judicial numberice by acknowledging that the State legislature while enacting the Religious Premises Act was Civil Appeal No. 3674 of 2009 Page 6 of 29 aware that it has enacted East Punjab Rent Act, an existing statute governing landlord and tenant relationship. However, the State legislature in its wisdom has deemed it appropriate to enact a law in respect of land and buildings belonging to religious institutions. The vires of the Religious Premises Act, a special enactment companycerning landlord and tenant relationships, cannot be challenged on the ground that there are already two other enactments governing general landlord and tenant relationships Transfer of Property Act and East Punjab Rent Act . The Constitution companyfers the power and authority on the State to enact two separate enactments on a similar subject if they seek to achieve different objectives and protect and preserve different sets of rights and make necessary classification to serve such varied ends. The Religious Premises Act, unlike the East Punjab Rent Act and the Public Premises Act, companycerns itself with the administration of premises belonging to religious institutions and seeks to regulate their rights as landlords vis--vis the tenants in occupation. In this regard, reference can be made to the object and purpose behind enacting the Religious Premises Act, which is as follows Since long various religious institutions have been representing to the Government for vacation of their premises under unauthorised occupation. On careful thought being given by the Government, the State Government is of the opinion that the religious Civil Appeal No. 3674 of 2009 Page 7 of 29 institutions are facing a lot of difficulties in this behalf. It is, therefore, expedient for the State Government to help the religious institutions in getting their premises which are under unauthorised occupation vacated through summary proceedings. Hence, the Punjab Religious Premises and Land Eviction and Rent Recovery Bill, 1996. Section 2 d of the Religious Premises Act defines religious institution. Section 2 e defines religious premises and Section 3 defines unauthorised occupation of religious premises by a person. These provisions read as under Religious Institution means any gurudwara, temple, church, mosque, temple of Jains or Budhas - which is registered under the provisions of the Societies Registration Act, 1860 Central Act No. XXI of 1860 or is established under any statute and includes any other place of worship by whatever name, it may be called, which is registered as aforesaid or is established under any statute e religious premises, means any land whether used for agricultural or number-agricultural purposes, or any building or part of a building belonging to a Religious Institution and includes, - the garden, grounds and out-houses, if any, appertaining to such building or part of a building and any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof xxx Unauthorised occupation of religious premises. - For the purposes of this Act, a person shall be deemed to be in unauthorised occupation of any religious premises- a where he has, whether before or after the companymencement of this Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant or Civil Appeal No. 3674 of 2009 Page 8 of 29 b where he, being an allottee, lessee or grantee has, by reason of the determination or cancellation of his allotment, lease or grant in accordance with the terms in that behalf therein companytained, ceased, whether before or after the companymencement of this Act, to be entitled to occupy or hold such religious premises or c where any person authorised to occupy any religious premises has, whether before or after the companymencement of this Act, - sub-let, in companytravention of the terms of allotment, lease or grant, without the permission of the Religious Institution, the whole or any part of such religious premises or otherwise acted in companytravention of any of the terms, express or implied, under which he is authorised to occupy such religious premises. Explanation. - For the purpose of clause a , a person shall number merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee, lessee or grantee. Religious institution means any gurudwara, temple, church, mosque or temple of Jains or Buddhists which is registered under the provisions of the Societies Registration Act or established under any statute. It also includes any place of worship by whatever name called which is registered as aforesaid or established under any statute. The definition is clear and numbercontention or issue is raised that the definition of the term religious institution is vague or incomprehensible. Similarly, the expression religious premises has been defined in clear terms to mean land used for agricultural or number-agricultural purposes or any building or part of the building belonging to a religious institution. The definition clarifies that the expression religious premises would include garden, ground and out-house or any Civil Appeal No. 3674 of 2009 Page 9 of 29 fittings in the building or part of the building for more beneficial enjoyment. The expression unauthorised occupation is of some importance in view of the challenge and the companytentions raised. A person is deemed to be in unauthorised occupation of any religious premises if he has, before or after companymencement of the Religious Premises Act, entered into possession of a land or building belonging to a religious institution otherwise than under or pursuant to any allotment, lease or grant. A person who enters into possession of the land or building belonging to or owned by a religious institution and has valid and subsisting allotment, lease or grant is clearly number an unauthorised occupant. Such allottees, lessees or persons in whose favour there is a grant, allotment or lease that entitles the person to retain possession are fully protected and cannot be evicted. In other words, primacy to the terms of allotment, lease or grant is number interfered, and is duly accorded. The terms of the allotment, lease or grant would be binding. Clause b states that if the allotment, lease or grant has been determined or cancelled whether before or after the companymencement of the Religious Premises Act, occupation of the person would be treated as unauthorised occupation. Clause c states that where a person is authorised to occupy any religious premises, before or after companymencement of the Religious Premises Act, has sublet the religious premises in companytravention of Civil Appeal No. 3674 of 2009 Page 10 of 29 the terms of allotment, lease or grant, or otherwise acted in companytravention of the terms, express or implied, he shall be treated as an unauthorised occupant. No companytention, issue or objection has been raised viz. clause c to Section 3. Explanation to Section 3 states that for the purpose of clause a , which makes the term of allotment, lease or grant as a basis for determining whether a person is in authorised or unauthorised occupation, shall number be affected by the mere reason or the fact that such person has paid rent and, therefore, is deemed to have entered into possession as an allottee, lessee or guarantee. In other words, payment of rent would number be a determinative and relevant factor in deciding the issue and question of unauthorised occupation. The tenure of allotment, lease or the grant and terms and companyditions as agreed or stated, and number mere payment of rent would be the crucial and determinative criterion. Under Section 4 of the Religious Premises Act, a religious institution can make an application before the Collector if it is of the opinion that any person is in unauthorised occupation of any religious premises, situated within the Collectors jurisdiction. The Collector thereupon is required to issue numberice in writing calling upon the person to show-cause why the eviction order should number be made. Sub-section 2 prescribes the requirement of a numberice Civil Appeal No. 3674 of 2009 Page 11 of 29 and sub-section 3 to Section 4 prescribes the manner in which the numberice is to be served. Under Section 5, the Collector is authorised and is companypetent to pass an order of eviction after companysidering the cause, if any, shown by the person to whom numberice under Section 4 has been issued and after examining the evidence that may be produced by such person. The person in occupation has to be given reasonable opportunity of being heard. The statutory requirement is that the Collector should be satisfied that the religious premises are in unauthorised occupation before he can make the order of eviction. The Collector must also record reasons. The Collector is required to pass an order within a period of 45 days from the date of receipt of the application under Section 4 and the order passed has to be affixed on the outer door or on some other companyspicuous part of the religious premises. If a person fails to companyply with the order of eviction within 30 days from the date of the order, the Collector, or any other officer duly authorised by him, can evict the person and deliver possession of the religious premises to the religious institution. He is entitled to use force as may be necessary. The tenant, if aggrieved, can file an appeal against the Collectors order before the Commissioner. Thereafter, the tenant is entitled to also invoke the writ jurisdiction of the High Court under Articles 227 and 226 of the Constitution of India if the grievance still persists. Civil Appeal No. 3674 of 2009 Page 12 of 29 The issue of whether the properties of the religious institutions for the purpose of rent companytrol legislations can be treated as a separate category is numberlonger res integra as this aspect was examined in several decisions where this Court has held that separate classification of properties of religious institutions for rent legislations will pass a challenge under Article 14 of the Constitution. In State of Andhra Pradesh and Others v. Nallamilli Rami Reddi and Others 2, this Court was faced with a challenge to the validity of Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 which had cancelled the leases of tenants of properties belonging to or given or endowed for the purpose of any charitable or any religious institution or endowment falling under the enactment, numberwithstanding the prevailing tenancy laws in the State of Andhra Pradesh, in order to augment the rents payable for such properties which stood frozen on account of the tenancy laws and since sale of such lands was number feasible. While examining the question of religious institutions as a separate and distinguishable class, this Court had expounded on the scope of Article 14 of the Constitution and the kind of classification that would stand the test of Article 14 of the Constitution, as under AIR 2001 SC 3616 Civil Appeal No. 3674 of 2009 Page 13 of 29 What Article 14 of the Constitution prohibits is class legislation and number classification for purpose of legislation. If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is number open to challenge on the ground of denial of equal treatment that the law does number apply to other persons. The test of permissible classification is twofold i that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and ii that differentia must have a rational companynection to the object sought to be achieved. Article 14 does number insist upon classification, which is scientifically perfect or logically companyplete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will number become discriminatory, though due to some fortuitous circumstance arising out of peculiar situation some included in a class get an advantage over others so long as they are number singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. Holding the above, this Court in Nallamilli Rami Reddi supra had reversed the decision of the Division Bench of the Andhra Pradesh High Court observing that religious institutions fall into a separate category and land or property held by them have a special character. Clearly, the tenants under a religious institution would form a separate class by themselves and such classification, if made, would achieve the object of promoting the interests of the religious institutions. Therefore, classification of properties of religious institutions as a separate and distinctive class of properties would number fall foul or be violative of Article 14 of Civil Appeal No. 3674 of 2009 Page 14 of 29 the Constitution. It was elucidated that whether a tenancy act should be applicable to religious institutions or should be kept out is number an aspect which the Court would decide. It is instead for the legislature to determine the extent of applicability of such tenancy laws to religious institutions and the extent of protection that should be made available. This Court has, therefore, rejected the argument that religious institutions as landlords or tenants of religious institutions cannot be treated and regarded as a separate category in respect of whom protection as available to other tenants under the rent law would number be available. Such classification cannot be a ground or the basis to interfere with the validity of an act or provision. However, the Courts can interfere when the policy is irrational. Summing up the ratio, this companyrt in Nallamilli Rami Reddi supra had held We may sum up the upshot of our discussion That charitable or religious institutions or endowments fall into a separate category and form a class by themselves. If that is so, tenants companying under them also form a separate class. Therefore, they can be treated differently from others. In operation of the Act it is possible that it may result in hardship to some of the tenants but that by itself will number be a companysideration to companydemn the Act. The manner in which the charitable or religious institution or endowment would deal with the properties that are resumed after the provisions of Section 82 of the Act companye into force by cancelling the existing leases, is in the region of speculation. Civil Appeal No. 3674 of 2009 Page 15 of 29 Fresh tenancy can be entered into and there is numbermaterial before the companyrt as to what was the rent paid by tenants at the time when the Act came into force, in terms of Section 18 2 of the Act or as provided under the Andhra Act or under the Telangana Act. In the absence of such a material, it would be hazardous for the companyrt to reach any companyclusion, one way or the other, to state that the tenants would be frozen and, therefore, there is numberlikelihood of charitable or religious institution or endowment getting higher rents. If there is numbermaterial one way or the other, the presumption that the Act is good should prevail. It is a matter of policy with the legislature as to whether all provisions of the Tenancy Acts should be exempt in its application to the charitable or religious institution or endowment in their entirety. The identification of landless poor persons and protection given to them is justified as enunciated earlier. It will be very difficult to predict at this stage that the result of Section 82 of the Act would be so hazardous as number to achieve the object for which it was enacted. It would number only result in displacing the old tenants by new tenants, it may also achieve other social objectives in another manner. If appropriate provisions are made under the Rules and if the leases are given to small holders of land, another social objective companyld be achieved. In what manner charitable or religious institution or endowment would deal with matters of this nature is mere guesswork at this stage. On some hypothetical approach the High Court companyld number have declared a law to be invalid. Therefore, it was clearly held that tenants of religious institutions fall in a separate class which is identifiable. Further, on the question, whether cancellation of a lease in their favour would achieve the objectives of the act in question, it was Civil Appeal No. 3674 of 2009 Page 16 of 29 observed, that there was numbermaterial before the Court to show that such cancellation would number carry out the purposes of the religious institutions. There have been number of central and state legislations wherein religious institutions with or without other charitable organisations have been treated as a separate and distinct class and accorded legal treatment companycomitant to such distinctiveness within the scope of the same enactment or other enactments. See Sections 11 and 115BBC, the Income Tax Act, 1961 Karnataka Rent Act, 1999 and Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 Orissa Hindu Religious Endowments Act, 1951 Himachal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 as amended in 2018 Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 and Goa, Daman and Diu Buildings Lease, Rent and Eviction Control Act, 1968, among others. We would like to refer to a decision of this Court in S. Kandaswamy Chettiar v. State of Tamil Nadu and Another 3 wherein challenge was made to the exemption granted to buildings owned by Hindu, Christian and Muslim religious public trusts and public charitable trusts from the provisions of the Tamil AIR 1985 SC 257 Civil Appeal No. 3674 of 2009 Page 17 of 29 Nadu Buildings Lease and Rent Control Act, 1960, by delegated legislation, in the form of an exemption numberification issued under Section 29 of the above Act. A three Judge Bench of this Court in Kandaswamy Chettiar supra referred to the judgment of a five Judge Bench of this Court in P.J. Irani v. State of Madras4 wherein identical provisions companytained in earlier enactment, namely, the Madras Buildings Lease and Rent Control Act, 1959 were upheld in the companytext of Article 14 of the Constitution of India on the basis that the Preamble and operative provisions of that Act gave sufficient guidance for exercise of discretionary power vested with the State Government. Whether a numberification granting exemption to buildings belonging to charities, religious or secular institutions would violate the equal protection mandate of Article 14, it was observed, that Article 14 requires that the classification must be based on rational grounds, that is, grounds germane to carrying out the policy or the purpose of the Act and by way of illustration it was stated that if such exemptions were granted in favour of all the buildings belonging to charities, religious or secular institutions, such classification would be reasonable and proper being based on intelligible differentia having nexus to the object sought to be achieved. Rent Act, it was observed, would unquestionably be a piece of beneficial AIR 1961 SC 1731 Civil Appeal No. 3674 of 2009 Page 18 of 29 legislation intended to remedy the two evils, that is, rack-renting extraction of exorbitant rents and unreasonable eviction orders generated by a largescale influx of population to big cities and urban areas post the Second World War creating acute shortage of accommodation in such areas. Rent enactments overtly protect the rights of the tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted. Therefore, such enactments even protect tenancy after determination or end of their companytractual periods by enlarging the definition of the term tenant. At the same time, the rent enactments often companytain other significant provisions which indicate that the legislature itself felt that there may be areas and cases where these two evils were neither prevalent number apprehended, and as such landlords freedom need number be curtailed at all. It is in this companytext that several enactments give wider latitude to the landlords of religious, charitable, educational and other public institutions if the possession is required for purposes of such institutions. In other words, the legislature is entitled and can make rational classification of buildings belonging to government and those belonging to religious, charitable, educational and other public institutions which are accorded different treatment on the well-founded assumption that such landlords are number expected to and would number indulge in rack- Civil Appeal No. 3674 of 2009 Page 19 of 29 renting or unreasonable eviction. Relying upon the observations in P.J. Irani supra , it was held that companystitutional validity of granting exemption to buildings belonging to charities, religious or secular institutions, from rent companytrol legislation, would number offend the equal protection clause of Article 14 of the Constitution as it is a reasonable classification based on intelligible differentia and also satisfies the test of nexus as such institutions number only serve public purpose but disbursement of their income is governed by the objects for which they are created. The income and activities are number for private benefit. Reference in this regard was made to the companynter affidavit wherein the government had explained that they were satisfied that the rents received by exempted religious institutions were very low, meagre and that the provisions of fixation of fair rent under the rent act would number meet the ends of justice and would in fact result in the tenant exploiting the situation. Consequently, withdrawal of protection to the tenants of such buildings was justified. It was observed in S. Kandaswamy Chettiar supra as under 11 In our view, the aforesaid material clearly shows that buildings belonging to such public religious and charitable endowments or trusts clearly fell into a class where undue hardship and injustice resulting to them from the uniform application of the beneficial provisions of the Act needed to be relieved and the exemption granted will have to be regarded as being germane to the policy and purposes of the Act. In other words the classification made has a clear nexus with the object Civil Appeal No. 3674 of 2009 Page 20 of 29 with which the power to grant exemption has been companyferred upon the State Government under S.29 of the Act. xx xx xx 14 It is obvious that if the trustees of the public religious trusts and public charities are to be given freedom to charge the numbermal market rent then to make that freedom effective it will be necessary to arm the trustees with the right to evict the tenants for numberpayment of such market rent. The State Government on materials before it came to the companyclusion that the fair rent fixed under the Act was unjust in case of such buildings and it was necessary to permit the trustees of such buildings to recover from their tenants reasonable market rent and if that be so number-eviction when reasonable market rent is number paid would be unreasonable and if the market rent is paid by the tenants numbertrustee is going to evict them. It is, therefore, clear that granting total exemption cannot be regarded as excessive or unwarranted. Apart from this aspect of the matter it is companyceivable that trustees of buildings belonging to such public religious institutions or public charities may desire eviction of their tenants for the purpose of carrying out major or substantial repairs or for the purpose of demolition and reconstruction and the State Government may have felt that the trustees of such buildings should be able to effect evictions without being required to fulfil other onerous companyditions which must be companyplied with by private landlords when they seek evictions for such purposes. In our view, therefore, the total exemption granted to such buildings under the impugned numberification is perfectly justified. These two judgments were followed by the two Judge Bench decision of this Court in Christ the King Cathedral v. John Ancheril and Another5 wherein similar exemption numberification 2001 6 SCC 170 Civil Appeal No. 3674 of 2009 Page 21 of 29 under the Kerala Buildings Lease and Rent Control Act, 1965 granting exemption in public interest to the buildings of all churches mosques of all minority religions and of all Dioceses, Archdioceses, Monasteries, etc. was challenged. One of the companytentions raised was that numberdata or material was produced by the State and hence the decision and ratio in S. Kandaswamy Chettiar supra would number be applicable. Rejecting the said companytention, it was observed The law had been stated by this Court to the effect that public religious or charitable endowments or trusts companystitute a well-recognised group which serves number only public purposes, but disbursement of their income is governed by the objects with which they are created and buildings belonging to such endowments or trusts clearly fall into a class distinct from the buildings owned by private landlords. It is in respect of three areas a regulation would be made under the Act, as has been done in other similar enactments and these areas are with respect to regulation of lease of buildings residential or number-residential ii companytrol of rent of such buildings and iii companytrol of eviction of tenants from such buildings. A public trust, as has been held in Kandaswamy Chettiar case is number likely to act unreasonably either in the matter of enhancement of rent or eviction of tenants being institutions of religion or charity. On that basis, this Court upheld the validity of the exemption granted under the Tamil Nadu Act in favour of such trust or endowment. In the present case, the companytention has been specifically put forth that the appellants fall into that very category which came up for companysideration before this Court in S. Kandaswamy Chettiar case. Therefore, numberdistinction can be made between that class of owners of the buildings in that case and in the present case. We do number understand as to what other material was required by the Court in a matter of this nature if the companytention put forth before this Court is number that churches or mosques, dioceses, archdioceses, monasteries, companyvents, wakfs and madarsas are number religious and charitable in nature. Civil Appeal No. 3674 of 2009 Page 22 of 29 Shri Nageswara Rao, the learned companynsel appearing for the companytesting respondents submitted that there is total number-application of mind by the Government in the matter of grant of exemption and the guidelines indicated in S. Kandaswamy Chettiar case have number been followed in the present case and, therefore, the exemption should number have been granted in the present case. In S. Kandaswamy Chettiar case an affidavit had been filed as to the lower rents that were being paid and that the tenants were exploiting the situation and had brought the charitable institutions to a situation of helplessness and that position number having been challenged the Court made those orders. If we bear in mind the fact that the purpose of the Act is apparently to prevent unreasonable eviction and also to companytrol rent and if the trustees of religious and public charities are given freedom to charge numbermal market rent with the further freedom to evict the tenants for number paying such market rent, the result would be unjust and cause hardship to them. But apprehension, by itself, is number sufficient. There is numbermaterial on record to show that in any of these cases the landlords would resort to such a companyrse of action. On the other hand, if the building belonging to such public trust or religious institution is exempt from the Act, the purpose of the trust companyld be carried out much better, is quite clear. If that is the object with which the Government has granted exemption, we do number think there is any reason to quash the numberifications impugned before the High Court. xx xx xx An argument is sought to be raised on the basis of ownership of property that there should number have been a distinction as is being made in the present case. That was the very basis of distinction made in case of statutory bodies like the Housing Board, local authorities which was numbericed in Jayakaran v. Kerala Health R W Society case or registered wakfs which was companysidered in Lakshmanan v. Mohamood. When such bodies or institutions fall into a distinct class by themselves and exemption granted to them would serve a public purpose, namely, to carry out the objects of the trust or the endowment or religious activity in a broad sense, we do number think that the fine distinction Civil Appeal No. 3674 of 2009 Page 23 of 29 sought to be made by the High Court in this regard is justified. Appropriate at this stage would also be reference to two earlier decisions of this Court which had examined the provisions of the rent companytrol legislations, namely, Kewal Singh v. Smt. Lajwanti6 and Ravi Dutt Sharma v. Ratan Lal Bhargava7. In Kewal Singh supra , the challenge made was to the provisions of summary eviction in case of bona fide requirement under the Delhi Rent Control Act, 1958. It was observed that the rent companytrol legislations are a piece of social legislations and are meant mainly to protect tenants from frivolous evictions but, at the same time, they must do justice to the landlord and to this extent the enactment should avoid placing such restrictions on their right to evict the tenants so as to destroy the legal right to property. Therefore, the landlords have been given certain statutory rights under the rent enactments to seek eviction and these provisions provide relief. In the absence of such rent companytrol legislations, a landlord has the right in law to evict the tenant either on the termination of tenancy by efflux of time or other grounds after giving numberice under the Transfer of Property Act. Such rights have been curtailed by the rent companytrol legislations to give protection to AIR 1980 SC 161 AIR 1984 SC 967 Civil Appeal No. 3674 of 2009 Page 24 of 29 tenants having regard to the genuine and dire needs but these should number be companystrued to destroy the rights which have been given to the landlords. It was observed There is yet another important aspect of the matter which may be mentioned here. Prior to the enactment of the rent companytrol legislation in our companyntry, the relationship of landlord and tenant was governed by our companymon law viz. the Transfer of Property Act Sections 107 to 111 . The tenant was inducted with his tacit agreement to be regulated by the companyditions embodied in the companytract and companyld number be allowed to repudiate the agreement reached between him and the landlord during that period. The tenant was, therefore, bound in law to vacate the premises either voluntarily or through a suit after he was given a numberice as required by the Transfer of Property Act under the terms and companyditions of the lease. However, as a piece of social reform in order to protect the tenants from capricious and frivolous eviction, the legislature stepped in and afforded special protection to the tenant by companyferring on him the status of a statutory tenant who companyld number be evicted except under the companyditions specified and the procedure prescribed by the Rent Control Acts. Thus to this extent, the agreement of lease and the provisions of the Transfer of Property Act stood superseded. At the same time, the Rent Control Acts provided the facilities of eviction to the landlord on certain specified grounds like bona fide personal necessity or default in payment of rent, etc. Thus any right that the tenant possessed after the expiry of the lease was companyferred on him only by virtue of the Rent Control Act. It is, therefore, manifest that if the legislature companysidered in its wisdom to companyfer certain rights or facilities on the tenants, it companyld due to changed circumstances curtail, modify, alter or even take away such rights or the procedure enacted for the purpose of eviction and leave the tenants to seek their remedy under the companymon law. Thus, we do number see how can the tenant challenge the validity of such a provision enacted by the legislature from which the tenant itself derived such rights. Civil Appeal No. 3674 of 2009 Page 25 of 29 Similar are the observations of this Court in Ravi Dutt Sharma supra which had quoted several passages from Kewal Singh supra to observe that it is open to the legislature to pick out one class of landlords out of several companyered under a specific provision of a rent enactment so long as they form a class by themselves and the legislature was free to provide benefit of a special procedure to them in the matter of eviction against the tenants as long as the legislation had the object to achieve and a special procedure has reasonable nexus to the object to be achieved. In Ashoka Marketing Ltd. supra , the five Judge Constitution Bench of this Court had upheld applicability of the Public Premises Act to a companyporation established by a Central Act that is owned and companytrolled by the Central Government, therein a nationalised bank. After referring to several judgments, this Court had explained the effect of Article 14 of the Constitution observing that the two statutes, namely, the Rent Control Act and the Public Premises Act were enacted by the same legislature, that is, the Parliament, in exercise of powers for matters enumerated in the Concurrent List. The Public Premises Act being a later enactment would prevail over the provisions of the Rent Control Act in respect of public premises. Referring to the provisions of the Rent Control Act, it was observed Civil Appeal No. 3674 of 2009 Page 26 of 29 The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant companytained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a companypetent companyrt and for trial of such a suit in accordance with the procedure laid down in the Code of Civil Procedure, the Public Premises Act companyfers the power to pass an order of eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public Premises Act is a special statute and number a general enactment the exception companytained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier companytrary laws, the Public Premises Act must prevail over the Rent Control Act. What has been said about the Public Premises Act would be equally applicable to the legislations made by the State legislature of the State of Punjab in respect of the two enactments under companysideration, that is, the East Punjab Rent Act and the Religious Premises Act. No doubt, in this decision it has been observed that the underlying reason for exclusion of property belonging to the Civil Appeal No. 3674 of 2009 Page 27 of 29 government from the ambit of the Rent Control Act is that the government while dealing with the citizens in respect of property belonging to it would number act as a private landlord but would act in public interest, albeit this reasoning would equally apply to religious institutions as defined.
ARISING OUT OF .S.L.P NO.4189 OF 2004 K. BALASUBRAMANYAN, J. Leave granted. The tenant is before us. He is the tenant of a building governed by the Kerala Buildings Lease and Rent Control Act, 1965 hereinafter called the Act . He took on rent a room in the building belonging to the respondent-landlord. He executed an unregistered, insufficiently stamped rent deed on 5.9.1988 which was accepted by the landlord. He entered into possession thereunder. The lease was taken for the purpose of companyducting a gold and silver jewellery shop. As per the rent deed, the term of the lease was 15 years. The rent payable was Rs.750/- a month. A sum of Rs.85,000/- was given to the landlord as security. That amount was to be returned to the tenant when he vacated the room. The monthly rent of Rs.750/- was to be paid by the 5th of the succeeding month. The tenant was given the right to install electrical fittings and to take water and telephone companynections. He had the right to install all necessary instruments or equipments in the room for the purpose of gold and silver business. Disputes seem to have arisen immediately thereafter. The tenant did number tender the rent that fell due on 5.10.1988. He removed a door and three windows from the walls of the room and closed up those openings. He cut-off the rafters in the front to a length of two feet. He lowered the level of the floor by one foot. He erected two pillars touching the walls and fixed a rolling shutter in front of the shop. These were done without the written permission of the landlord. The landlord issued a numberice in terms of the proviso to Section 11 2 of the Act. He called upon the tenant to pay the rent in arrears. The tenant failed to tender the rent. He filed an application R.C.P. No.2 of 1990 before the Rent Controller for eviction of the tenant. He invoked Section 11 2 of the Act pleading that the tenant had number paid or tendered the rent due by him for the period from 5.10.1988 to 31.12.1990 in spite of the statutory numberice. He also relied on the ground under Section 11 4 ii of the Act. He alleged that the tenant had used the building in such a manner as to destroy or reduce its value or utility materially and permanently. His case was that by removing the door and the windows and by his other acts the tenant has incurred the liability to be evicted under Section 11 4 ii of the Act. The tenant resisted the application. He pleaded that the landlord did number companyperate with him in getting electricity and water companynections and refused to issue receipts for the rent he tendered. Therefore, he had number paid the rent. He had number done anything in the building which materially affected the value or utility of the building. In fact, what he had done, had only made the building safe and enhanced its value. He pleaded that he was number liable to be evicted. He also deposited the rent that was in arrears so as to enable him to companytest the proceedings. A companymission was taken out. The Commissioner visited the shop in the presence of the tenant. The Commissioner numbered the relevant features and also recorded what the tenant told him in respect of the removal of the door and the windows. He numbered the lowering of the floor, the erection of the pillars and the fixing of the rolling shutter. The landlord examined himself as PW 1. He admitted the rent numbere. He admitted that he had received Rs.85,000/- as advance. He pleaded that in spite of the statutory numberice, the tenant had number paid the rent. He also spoke of the alterations to the building brought about by the tenant. The tenant, in his evidence tried to justify the number payment of rent. He deposed that what he had done in the premises was only to facilitate the jewellery trade for which the building was taken on rent. He was entitled to do so on the terms of the rent deed. What he had done, was only to strengthen the premises. The value of the building has number been permanently or materially diminished. He was number liable to be evicted. The Rent Controller found that the rent numbere was inadmissible in evidence. It was a tenancy from month to month. He found that the tenant had defaulted payment of rent. An order for eviction under Section 11 2 of the Act was liable to be passed. The fact that he had deposited the entire rent during the pendency of the proceedings, was relevant only for the purpose of Section 11 2 c of the Act. He found that the question of material alteration had to be approached from the angle of the landlord. From that angle, it was clear that by the closing of the windows and the door, the amenity to the room had been destroyed by the tenant. The fact that such closing of the door and the windows was necessary to secure the jewellery of the tenant was number relevant. What had been done amounted to material alteration within the meaning of Section 11 4 ii of the Act. The tenant was liable to be evicted. He, thus, ordered eviction on both grounds. The tenant filed an appeal under Section 18 of the Act. He raised a fresh companytention. The term of the lease was 15 years. The landlord was number entitled to seek eviction before the expiry of that term. The claim for eviction was barred by Section 11 9 of the Act. Since this aspect is number agitated before us, it is only necessary to mention that this companytention was negatived by the Appellate Authority. It held that since the rent deed was unregistered, it was number admissible in evidence. The tenant companyld number take advantage of the term therein. By payment and acceptance of rent, only a tenancy from month to month has companye into existence. Therefore, the application for eviction filed before the expiry of 15 years, was maintainable. As regards the claim under Section 11 2 of the Act, that authority reiterated the reasoning of the Rent Controller and found that the tenant had number tendered the rent or established that as a matter of fact, the landlord had refused to issue a receipt for payment of the same. It relied on a numberice issued by the tenant himself accusing the landlord of number companyperating in his getting electrical and water companynections and taking the stand that he was number bound to pay the rent. Regarding the claim under Section 11 4 ii of the Act, it held that the alterations made by the tenant came within the purview of that provision. The order for eviction thereunder was justified. It dismissed the appeal. The tenant filed a revision under Section 20 of the Act. The High Court, re-appraised the relevant materials. It held that the application for eviction was number premature and was maintainable. It further held that the order for eviction under Section 11 4 ii of the Act was sustainable. There was numberspecific discussion on the order for eviction under Section 11 2 of the Act and the revision was dismissed and the orders for eviction were companyfirmed. This is what is challenged here. First, the claim under Section 11 4 ii of the Act. The relevant provision in the Act reads - 11 4 A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building- i if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently. For seeking eviction, the user should destroy or reduce the value or utility of the building materially and permanently. Even if the user leads to some reduction in the value or utility of the building, eviction cannot be ordered. But, if the value or utility is materially and permanently affected, an order for eviction companyld be passed. The Kerala High Court has interpreted this provision in the companytext of a number of fact situations. Ahammad Kanna Vs. Muhammed Haneef, 1967 K.L.T. 841 held that the demolition of any wall in a building can be deemed to be an act of waste which is likely to impair materially the value and utility of the building. But that was number enough. The Court had to see whether there was sufficient evidence to show that the tenant had companymitted such acts of waste as to impair the value or utility of the building. It was found that the motive for the removal of the wall was for companyvenience of trade. Since it was number shown that any damage to the building was caused by the removal of the wall and the boundary was number obliterated, an order for eviction under Section 11 4 ii companyld number be granted. When the tenant destroyed a boundary wall, the decision in Ahammad Kanna was distinguished and it was held in Ayissabeevi Vs. Aboobaker 1971 K.L.T. 273 that the pulling down of a wall might or might number amount to waste, and the question will depend upon the purpose for which the wall was pulled down. When the purpose was to remove the boundary wall and that resulted in the obliteration of the boundary line and the tagging on of the property with the adjoining property through the medium of a companyridor, it attracted Section 11 4 ii of the Act. Shanmugam Vs. Rao Saheb 1988 1 K.L.T. 86 reiterated that there can be numberhard and fast rule that the removal of a wall or companystruction of a door or providing a companymon verandah should, necessarily lead to an inference that there was destruction or reduction of the value or utility. Such acts of the tenant have to be judged on the facts of each case. Mere proof of reduction or even destruction of utility or value was number sufficient and the words materially and permanently were important. The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. Prabodhini Vs. Rajammal 1991 1 K.L.J. 113 decided that the fixing of a gate after removing a portion of the wall, companyld number be taken as an act which destroyed or reduced the value or utility of the building. Nor companyld it be companysidered to be an act which materially affected the value or utility of the building, that too, permanently. In Thankappan Vs. Reji Xavier 1995 K.L.J. 86 it was held that the removal of a ceiling attracted Section 11 4 ii of the Act since the value of the building was number only reduced but its utility was also materially and permanently reduced. Mathew vs. Gilbert 1998 2 K.L.T. 19 held that the failure of the tenant to protect the furniture in the building passed on to him with the letting of the building, would number attract Section 11 4 ii of the Act. In Aboobacker Vs. Nanu 2001 3 K.L.T. 815 it was held that on proof of minor destruction or alteration even if it resulted in marginal reduction of value or utility, the landlord companyld number get an order of eviction under Section 11 4 ii of the Act. Seethalakshmi Ammal Vs. Nabeesath Beevi 2003 1 K.L.T. 391 held that the dismantling of the original roof followed by the substitution of a new roof, the replacing of old walls by new walls, the old flooring by a new flooring and the placing of shutters replacing the doors after practically demolishing the old building, were acts that attracted Section 11 4 ii of the Act. This Court had companysidered the scope of the analogous provision in sister enactments. The U.P. Cantonments Control of Rent and Eviction Act was involved in Manmohan Das Vs. Bishun Das 1967 1 SCR 836 . Even if the alterations did number cause any damage to the premises or did number substantially diminish its value, the alterations were material alterations. On that basis alone, the landlord was entitled to evict the tenant. That was in the companytext of the provision which enabled a landlord to get an order for eviction, if the tenant had, without the permission of the landlord, made any companystruction which has materially altered the accommodation. Eviction companyld also be ordered even if that companystruction or alteration was likely to substantially diminish the value of the building. The difference with the Kerala Act is that the two requirements were disjunctive. It was enough to satisfy either one of them. It was clarified that although the expression material alteration was number defined, the question would depend on the facts of each case. In that case the acts of the tenant were held to amount to material alterations. In Om Prakash Vs. Amar Singh AIR 1987 SC 617 interpreting the same provision, it was held that the question whether a companystruction materially altered the accommodation was a mixed question of fact and law. The dictionary meaning of the expression materially and alter were companysidered. It was held to mean a substantial change in the character, form and the structure of the building without destroying its identity. It had to be seen whether the companystructions were substantial in nature and they altered the form, front and structure of the accommodation. No exhaustive list of companystructions that companystitute material alteration companyld be given. The determination of that question depended on the facts of each case. On facts, it was held that there was numbermaterial alteration. It was also laid down that the companystruction of a temporary shed in the premises which companyld easily be removed did number companye within the mischief of the section. Brijendra Nath Vs. Harsh Wardhan 1988 2 SCR 124 held that the companystruction of a wooden balcony in the showroom did number amount to material alteration. Replacing of wooden plank on the front door of the building by a rolling shutter was held to be number an alteration that caused any damage to the building and that was held number to provide a ground for eviction in Arunachalam died through L.Rs. and another Vs. Thondarperienambi and another AIR 1992 SC 977 . In Vipin Kumar vs. Roshan Lal Anand 1993 2 SCC 614 a claim under Section 13 2 iii of the East Punjab Urban Rent Restriction Act, 1949, it was held that the impairment of the value or utility of the building was from the point of the landlord and number of the tenant. It had to be shown that there was impairment of the building due to acts of the tenant and, secondly, it had to be shown that the utility or value of the building had been materially impaired. The Court went on to say that the statute on proof of facts gave discretion to the Court to order eviction. The wording of the provision was if the tenant has companymitted such acts as are likely to impair the value or utility of the building or rented land. The Rent Controller had to independently companysider and exercise the discretion vested in him keeping in view the proved facts to decree ejectment. It was for the landlord to prove such facts which warrant the Controller to order eviction in his favour. In Waryam Singh Vs. Baldev Singh 2003 1 SCC 59 companystruing the same provision, it was held that enclosing a verandah by companystructing walls and placing a rolling shutter in front, did number justify an inference that the value or utility of the building had been impaired, in the absence of evidence led by the landlord to prove that the value or utility had been affected. So an order of eviction companyld number be granted. From the above, it is clear that the question depends on the facts of the case. The nature of the building, the purpose of the letting, the terms of the companytract and the nature of the interference with the structure by the tenant, are all relevant. The destruction or damage has to be adjudged from the stand point of the landlord. Let us look at the facts in the present case. The building is 75 years old. According to the tenant, it is 80 years old. The difference is number of any significance. It is the numberthern room in a building companysisting of a number of rooms. It is let out for 15 years for a jewellery trade. The term has, of companyrse, number companye into effect for want of registration of the deed. The door in the western wall has been bricked up. The windows on the numberthern, western and southern walls have also been bricked up. Obviously, the bricked up portions can be removed and the doors and windows restored without weakening the structure. But more importantly, the level of the floor was lowered, the rafters cut, two companycrete pillars erected and a rolling shutter fixed. The lowering of the floor and the tampering with of the roof, is of some significance. They companyld lead to impairment of the value or utility of the building, materially and permanently. That again has to be judged in the light of the surrounding circumstances. But a rolling shutter has been fixed. That provides more security to the premises. The height of the floor can be restored without impairment to the structure. Here, we find that the landlord has number even pleaded that the alterations made by the tenant have destroyed or reduced the value or utility of the building materially and permanently. No doubt, he has stated so in his evidence. But the tenant has stated that, companysidering that it was a jewellery business that was being started, these things had to be done. Securing of the premises was essential. He had given to the landlord Rs. 85,000/- as security to be returned, when he vacated the building. The value of the building, if at all, has only been enhanced. In this state of the record, it is number possible to infer that the acts of the tenant have materially and permanently destroyed or reduced the value or utility of the building. The age of the building cannot be ignored. The purpose of the letting cannot be ignored. We find that the Authorities below have number approached the question from the proper perspective. They have number given sufficient emphasis to the statutory requirement of the effect being material and permanent. It is material and permanent. The words are number disjunctive, like in some other Acts. Here the landlord had number proved the material and permanent impairment in value or utility. One suspects that the value and utility are enhanced. The landlord admits that he will get a higher rent if the room is again let out. We are, therefore, satisfied that interference is justified. We hold that the landlord has failed to prove that the acts of the tenant companystitute the user of the building in such a manner as to destroy or reduce the value or utility of the building materially and permanently. We set aside the order for eviction under Section 11 4 ii of the Act. Now, the claim under Section 11 2 of the Act. There cannot be any dispute that the tenant had number paid the rent from 5.10.1988 onwards as claimed by the landlord. He had deposited the rent in the proceeding. If he has done so, it is relevant only for companysidering the question whether he is entitled to relief in terms of Section 11 2 c of the Act. The only question is whether the fact that he had paid a sum of Rs. 85,000/- as security, which the landlord was liable to refund to him at the time of his vacating the room, companyld be taken numbere of as an amount available with the landlord for being adjusted against the rent due. Under Section 8 1 of the Act, the landlord is number entitled to take any premium or other like sum. Under Section 8 2 , he companyld receive or stipulate for payment only, an amount number exceeding one months rent by way of advance. In both cases, if he has received it, it becomes refundable at once. Hence, it would be an amount available with him. In Issac Ninan Vs. State of Kerala 1995 2 KLT 848 the High Court has declared that provisions relating to fair rent, that is, Sections 5, 6 and 8 of the Act, put together, are ultra vires the Constitution of India and are void. The questions may have, therefore, to be companysidered without reference to Section 8 of the Act. In a case where a substantial amount had been received as advance at the time of letting, which was liable to be refunded without interest on the expiry of the lease, this Court held in Modern Hotel Vs. K. Radhakrishnaiah 1989 2 SCC 686, that when the amount of arrears of rent was smaller than the advance amount held by the landlord on account of the tenant, there was numberdefault in payment of rent and the grant of eviction on the ground of arrears of rent was number justified. This was reiterated in K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed 1996 3 SCC 45 .
Chandramauli Kr. Prasad Petitioner Licil Antony happens to be the wife of detenu Antony Morris and aggrieved by the order dated 6th of November, 2013 passed by a Division Bench of the Kerala High Court in Writ Petition Criminal No. 412 of 2013 declining to quash the order of detention passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as COFEPOSA, has preferred this special leave petition. Leave granted. Shorn of unnecessary details, facts giving rise to the present appeal are that on the allegation that the appellants husband Antony Morris, hereinafter referred to as the detenu, intended to export red sanders through International Container Trans-shipment Terminal, was arrested on 17th of November, 2012 by the Directorate of Revenue Intelligence and a case was registered against him. He was released on bail by the Additional Chief Judicial Magistrate Economic Offences , Ernakulam. The Directorate of Revenue Intelligence, hereinafter referred to as DRI, by its letter dated 17th of December, 2012 made recommendation for the detenus detention besides two others under Section 3 of the COFEPOSA alleging that they are part of a wellorganised gang operating in smuggling of red sanders in India and abroad. The proposals of the DRI, hereinafter referred to as the sponsoring authority, were received in the office of the detaining authority on 21st of December, 2012. The detaining authority after scrutiny and evaluation of the proposals and the documents, decided on 25th of January, 2013 to place the proposals before the screening companymittee and forwarded the same to it on 1st of February, 2013. The proposals of the detenus detention along with two others were companysidered by the screening companymittee which companycurred with the recommendation of the sponsoring authority. The detaining authority companysidered the facts and circumstances of the case as also the reports of the sponsoring authority and the screening companymittee and other materials running over 1000 pages and took decision on 15th of April, 2013 to detain the detenu and two others. Draft grounds for detention in English were approved on 19th of April, 2013 and as one of the detenue was a Tamilian, time till 3rd of May, 2013 was taken for translation of the documents relied on in Malyalam and Tamil and for preparation of sufficient number of companyies. Ultimately, with a view to prevent the detenu from engaging in the smuggling of goods, the detaining authority passed order of detention dated 6th of May, 2013. It was served on the detenu on 11th of June, 2013. The grounds of detention dated 8th of May, 2013 were made available to the detenu on 13th of June, 2013. The detenu was produced before the Advisory Board, which found sufficient grounds for his companytinued detention and, accordingly, the detaining authority issued order dated 24th of August, 2013, and companyfirmed the order of detention for a period of one year with effect from 11th of June, 2013, the date of detention. It is relevant here to state that detenu was earlier arrested in companynection with Kallur Police Station FIR No.57 of 2012 under Section 29 and 32 of A.P. Forest Act, 1937 Section 29 of the Wildlife Protection Act, 1972 Section 55 2 of the Biological Diversity Act, 2002 Rule 3 of the A.P. Sandalwood and Red Sanders Wood Transit Rules, 1969 and Section 379 of the Indian Penal Code. Judicial Magistrate First Class , Pakala by order dated 30th of November, 2012 released him on bail and while doing so directed him to appear before the companycerned police station on specified days. The appellant challenged her husbands detention before the High Court in a writ petition. By the impugned order the same has been dismissed. Mr. Raghenth Basant, learned companynsel for the appellant submits that there is inordinate delay in passing the order of detention and that itself vitiates the same. He points out that the last prejudicial activity which prompted the detaining authority to pass the order of detention had taken place on 17th of November, 2012 whereas the order of detention has been passed on 6th of May, 2013. He submits that delay in passing the order has number been explained. Mr. M.T. George, learned companynsel appearing on behalf of the respondents does number join issue and admits that the sponsoring authority wrote about the necessity of preventive detention in its letter dated 17th of December, 2012 for the prejudicial activity of the detenu which had taken place on 17th of November, 2012 and the order of detention was passed on 6th of May, 2013 but this delay has sufficiently been explained. He submits that mere delay itself is number sufficient to hold that the order of detention is illegal. We have given our thoughtful companysideration to the rival submissions and we have numberdoubt in our mind that there has to be live link between the prejudicial activity and the order of detention. COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the companyrt is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has number been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if number satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is number a rigid or a mechanical test. In case of undue and long delay the companyrt has to investigate whether the link has been broken in the circumstances of each case. There are a large number of authorities which take this view and, therefore, it is unnecessary to refer to all of them. In the case of Adishwar Jain v. Union of India 2006 11 SCC 339, this Court observed as follows Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2-12-2004, the order of detention was passed after four months. We must also numberice that in the meantime on 20-12-2004, the authorities of the DRI had clearly stated that transactions after 11-10-2003 were number under the scrutiny stating In our letter mentioned above, your office was requested number to issue the DEPB scripts to M s Girnar Impex Limited and M s Siri Amar Exports, only in respect of the pending application, if any, filed by these parties up to the date of action i.e. 11-10-2003 as the past exports were under scrutiny being doubtful as per the intelligence received in this office. This office never intended to stop the export incentives occurring to the parties, after the date of action i.e. 11-10-2003. In the civil sic your office Letter No. L.-2/Misc. Am-2003/Ldh dated 17-5-2004 is being referred to, which is number received in this office. You are, therefore, requested to supply photocopy of the said letter to the bearer of this letter as this letter is required for filing reply to the Honble Court. Furthermore, as numbericed hereinbefore, the authorities of the DRI by a letter dated 28-2-2005 requested the bank to defreeze the bank accounts of the appellant. The said documents, in our opinion, were material. It was, therefore, difficult to appreciate why order of detention companyld number be passed on the basis of the materials gathered by them. It is numberdoubt true that if the delay is sufficiently explained, the same would number be a ground for quashing an order of detention under COFEPOSA, but as in this case a major part of delay remains unexplained. Further, this Court had the occasion to companysider this question in the case of Rajinder Arora v. Union of India, 2006 4 SCC 796 in which it has been held as follows Furthermore numberexplanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. The said question has also number been examined by the Authorities before issuing the order of detention. The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.A. Abdul Rahman v. State of Kerala 1989 4 SCC 741 stating SCC pp. 748-49, paras 10- 11 The companyspectus of the above decisions can be summarised thus The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and numberexhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is number a rigid or mechanical test by merely companynting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the companyrt has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the companyrt has to investigate whether the causal companynection has been broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw companysiderable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was number really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. The delay caused in this case in issuing the order of detention has number been explained. In fact, numberreason in that behalf whatsoever has been assigned at all. Bearing in mind the principles aforesaid, we proceed to examine the facts of the present case. Prejudicial activity which prompted the sponsoring authority to recommend for detention of the detenu under COFEPOSA had taken place on 17th of November, 2012. The allegation related to export of red sanders through International Container Transshipment Terminal. The sponsoring authority took some time to determine whether the prejudicial activity of the detenu justifies detention. During the inquiry it transpired that the detenu and two others were part of a well-organised gang operating in smuggling of red sanders in India and abroad. It is only thereafter that on 17th of December, 2012, the sponsoring authority made recommendation for the detention of the detenu and two others under Section 3 of the COFEPOSA. As the allegation had international ramification, the time taken by the sponsoring authority in making recommendation cannot be said to be inordinate. The proposals of the sponsoring authority were received in the office of the detaining authority on 21st of December, 2012. As detention affects the liberty of a citizen, it has to be scrutinised and evaluated with great care, caution and circumspection. The detaining authority upon such scrutiny and evaluation decided on 25th of January, 2013 to place the proposals before the screening companymittee and forwarded the same to it on 1st of February, 2013. If one expects care and caution in scrutiny and evaluation of the proposals, the time taken by the detaining authority to place the proposals before the screening companymittee cannot be said to have been taken after inordinate delay. The meeting of the screening companymittee took place on 1st of February, 2013 in which the cases of the detenu and the two others were companysidered. The screening companymittee companycurred with the recommendation of the sponsoring authority. As stated by the respondents in the companynter affidavit, the record of the sponsoring authority, the screening companymittee and other materials companysisted of over 1000 pages. As the final call was to be taken by the detaining authority, it was expected to scrutinise, evaluate and analyse all the materials in detail. After the said process, the detaining authority decided on 15th of April, 2013 to detain the detenu and two others. The time taken for companying to the decision has sufficiently been explained. After the decision to detain the detenu and two others was taken, draft grounds were prepared and approved on 19th of April, 2013. As one of the detenue was a Tamilian, the grounds of detention were translated in Malyalam and Tamil which took some time and ultimately sufficient number of companyies and the documents relied on were prepared by 3rd of May, 2013. Thereafter, the order of detention was passed on 6th of May, 2013. From what we have stated above, it cannot be said that there is undue delay in passing the order of detention and the live nexus between the prejudicial activity has snapped. As observed earlier, the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is number vitiated. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in companyplying with procedural safeguards enshrined under Article 22 5 of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is number fit to be quashed on the ground of delay in passing the same. The companyclusion which we have reached is in tune with what has been observed by this Court in the case of M. Ahamedkutty v. Union of India, 1990 2 SCC 1. It reads as follows 10 Mere delay in making of an order of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the companyrts should number merely on account of the delay in making of an order of detention assume that such delay, if number satisfactorily explained, must necessarily give rise to an inference that there was numbersufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was number genuinely reached. Taking of such a view would number be warranted unless the companyrt finds that the grounds are stale or illusory or that there was numberreal nexus between the grounds and the impugned order of detention. In that case, there was numberexplanation for the delay between February 2, and May 28, 1987, yet it companyld number give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was number genuine or that the grounds were stale or illusory or that there was numberrational companynection between the grounds and the order of detention. Mr. Basant, then assails the order of detention on the ground of its delayed execution. He points out that the order of detention was passed on 6th of May, 2013 whereas it was served on the detenu on 11th of June, 2013. He submits that had the detenu been absconding, the appropriate Government ought to have taken recourse to Section 7 of the COFEPOSA. Section 7 of the COFEPOSA companyfers power on the detaining authority to make a report to a companypetent Magistrate in relation to an absconding person so as to apply the provisions of Section 82, 83, 84 and 85 of the Code of Criminal Procedure. It also provides for publication of an order in the Official Gazette, directing the detenu to appear. It is an admitted position that numbersuch report or publication was made. Accordingly, Mr. Basant submits that the order of detention is vitiated on the ground of delay in its execution also. In support of the submission he has placed reliance on a large number of authorities. We are entirely in agreement with Mr. Basant that undue and unexplained delay in execution of the order of detention vitiates it, but in the facts of the present case, it cannot be said that such delay has occurred. As stated earlier, the order of detention dated 6th of May, 2013 was served on the detenu on 11th of June, 2013. It is expected of the detaining authority to take recourse to ordinary process at the first instance for service of the order of detention on a detenu and it is only after the order of detention is number served through the said process that recourse to the modes provided under Section 7 of the COFEPOSA are to be resorted. Here, in the present case, that occasion did number arise as the order of detention was served on the detenu on 11th of June, 2013. Therefore, in our opinion, the order of detention cannot be said to have been vitiated on this ground also. Lastly, Mr. Basant submits that the detenu was arrested in a case at Andhra Pradesh and while granting bail, the trial companyrt at Andhra Pradesh put following companyditions The petitioner accused No.4 shall appear and sign before the companycerned Station House Officer in between 10.30 AM to 2.00 PM on the first week Wednesday of every succeeding month for a period till the date of filing of charge sheet or until further orders and companyoperate with the Investigating Officer. The petitioner accused No.4 shall number tamper with the evidence of prosecution witnesses in any way. Mr. Basant submits that the order granting bail to the detenu and the companyditions put have number been companysidered by the detaining authority, while passing the order of detention. He submits that an order of preventive detention deprives a citizen of his precious fundamental right of liberty and as such, the detaining authority erred in passing the order of detention without companysidering the same. Mr. George, however, submits that as the said order was passed by the trial companyrt at Andhra Pradesh, it was number within the knowledge of the detaining authority.
Kirpal, J. Special leave granted. The unsuccessful challenge of the appellant before the High Court was to the proposal of respondent No.1 to the attachment of house No.l91-A, Saket, Meerut belonging to him for the realisation of the amounts due to respondent No.l. Briefly stated the facts are that the appellants son, Rajiv Jain entered into a hire-purchase agreement with respondent No.l whereby, the said respondent financed a business venture of his proprietorship companycern M s. S.R.S. Sunfix Company. At the time of signing of the hire-purchase agreement, the appellant herein stood as guarantor as per the deed of guarantee dated 7th June, 1983. The appellants son then incorporated a private limited companypany called Shiraj Sunfix Company Private Limited and the said companypany took over the business of the proprietorship companycern. The terms of the original agreement did number permit such a change without the companysent of respondent No.l. The companysent to the new entity taking over the business of the proprietorship companycern was given by respondent No.l and a new agreement was entered into. By virtue of this agreement, the private limited companypany became the hirer and Rajiv Jain and Ajit Prasad Jain became the first and the second surety respectively. These two persons stood as guarantors under this agreement and they undertook due performance of this agreement and to pay the installments of hire and insurance etc. The said companypany failed to make the payments as companytemplated by the agreement. Thereupon, respondent No.l filed a suit in the Delhi High Court for recovery of Rs.54,15,001.04 p. with future interest and possession of the machinery and mandatory injunction. While the companypany through its managing director was arrayed as defendant No.l, Rajiv Jain and Ajit Prasad Jain were impleaded as defendants Nos. 2 and 3 in their capacity as guarantors. They also happened to be directors of the private limited companypany. In the plaint, it was slated that respondent No.l had agreed to the change from the proprietorship companycern to the private limited companypany and it is thereupon that defendant No.l and defendant Nos. 2 and 3, being sureties, executed fresh agreement. It is on the basis of this agreement dated 2nd April, 1986 that the suit was filed which was decreed on 12th September, 1996. Respondent No.l then forwarded a certificate of recovery under the U.P. Public Moneys Recovery of Dues Act, 1972 to the companylector, Meerut. The amount for which the decree had been passed was set out in the certificate, The name, of the grantee was mentioned as well as the names and addresses of the guarantors. The appellant, who was number a party to the suit, was number mentioned in the certificate of recovery. The names of the guarantors mentioned in the certificate, being only of Rajiv Jain and Ajit Prasad Jain. It is only in Annexure-D which companytained the details of the immovable property sought to be attached and sold that the house No.l91-A. Saket. Meerut belonging to the appellant was mentioned. It is the inclusion of this immovable property in the recovery certificate which was challenged by the appellant before the High Court. The High Court, however, dismissed the writ petition. Hence, this appeal by special leave. From the facts enumerated hereinabove, it is clear that originally when the hire-purchase agreement had been entered into between the parties in June, 1983, the appellant had stood as one of the guarantors. This agreement, however, was superseded by a new one on 2nd April, 1986. The latter agreement does number say that the earlier agreement of guarantee stood terminated number does it state that the earlier agreement of guarantee companytinues. In fact, in the latter agreement of 2nd April, 1986, there is numbermention of the earlier agreement entered into by the appellant as a guarantor. The companyduct of the parties, however, shows that respondent No.l after 2nd April, 1986 did number regard the appellant as one of the guarantors. Apart from the recital in the agreement of 2nd April, 1986, inter alia, to the effect that a fresh agreement had been entered into and Rajiv Jain and Ajit Prasad Jain have agreed to stand as guarantors, respondent No.l, when it filed the suit in the Delhi High Court chose number to implead the appellant herein as one of the defendants. Rajiv Jain and Ajit Prasad Jain were impleaded as defendants primarily on the ground that they were guarantors under the fresh agreement dated 2nd April, 1986. There Is numberreference in the plaint to the earlier deed of guarantee dated 7th June, 1983 executed by the appellant number is there any prayer in the plaint for a decree against the appellant herein or in respect of the agreement of 1983. This apart, even in the certificate of recovery which as sent by respondent No.l to the companylector, Meerut, the arrears were stated to be due from Rajiv Jain and Ajit Prasad Jain in the capacity as guarantors apart from the companypany and its directors. The appellant herein was admittedly number a director of the companypany and his name does number find mention in the certificate of recovery. Without going Into the question whether the provisions of the U.P. Public Moneys Recovery of Dues Act, 1972 companyld be invoked on the facts of this case against the appellant, we find that in fact there was numbersuch invocation in the present case. Furthermore, the second agreement of 2nd April 1986 amounted to numberation of companytract as a result of which the earlier guarantors stood discharged and fresh guarantees of Rajiv Jain and Ajit Prasad Jain were accepted by respondent No.
Uday Umesh Lalit, J. Leave granted. These appeals take exception to the companymon judgment and order dated 13.07.2009 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application Nos.5107 of 2008, 4321 of 2008, 824-853 of 2008 and 899-916 of 2008. Since all these appeals raise identical issues, they are dealt with and disposed of by this companymon judgment. The Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 herein referred to as the PMP Act was enacted by Parliament to provide for the acquisition of right of user in land for laying pipelines for the transport of petroleum and minerals and for incidental matters, with following Statement of Objects and Reasons - As a result of the implementation of plans for the development of petroleum resources in the companyntry, it is anticipated that in the next few years there will be a substantial increase in the production of crude oil, natural gas and petroleum products by the public sector oilfields and refineries in India. It has therefore become necessary to lay petroleum pipelines in the companyntry to serve as an efficient and cheap means of transportation and distribution of petroleum and petroleum products. Although land can be acquired outright for laying such pipelines under the Land Acquisition Act, 1894 the procedure for such acquisition is long-drawn and companytly. Since the petroleum will be laid underground outright acquisition of land is number necessary. Therefore, in the case of these pipelines it is companysidered sufficient to acquire the mere right of user in the land for laying and maintaining the pipelines. The Bill seeks to achieve the above purpose. The main features of the Bill are i . No right of user of land can be acquired for the purpose of laying pipelines unless the Central Government declares its intention by Notification in the Official Gazette, and unless objections, if any, filed within twenty-one days of that Notification are disposed of by the companypetent authority. ii . When final declaration about acquisition is made the right to use land for the purpose of laying pipelines will vest in the Central Government, State Government or the companyporation, as the case may be but numberwithstanding such acquisition, the owner or occupier of the land shall be entitled to use the land for the purpose for which such land was put to use immediately before the declaration by the Central Government. But after the date of acquisition he shall number companystruct any building or any other structure or companystruct or excavate any tank, well, reservoir or dam or plant any tree, on that land. iii . Compensation for the damage, loss or injury sustained by any person interested in the land shall be payable to such person. Besides this, companypensation calculated at ten per cent of the market value of the land on the date of the preliminary Notification is also payable to the owner and to any other person whose right of enjoyment in the land has been affected by reason of the acquisition. The companypensation in both cases is to be determined by the companypetent authority in the first instance and an appeal lies from its decision to the District Judge. Section 2 of the PMP Act defines certain expressions. In terms of Section 3, the Central Government is empowered to acquire the right of user in any land. Under Section 4, it is lawful for any authorized person to enter upon and cause survey in respect of such land. Under Section 5, any person interested in the land can object to the laying of the pipelines under the land. The objections so preferred are to be dealt with by the Competent Authority who would then make a report for the decision of the Central Government. Under Section 6 if the Central Government is satisfied that the land is required for laying any pipeline for transport of petroleum or any mineral, it may declare so by Notification in the Official Gazette, whereafter the right of user shall vest absolutely in the Central Government or in the State Government or the Corporation as directed. After the right of user stands so vested it is lawful to lay pipelines in terms of Section 7. Section 9 incorporates certain restrictions regarding the use of such land and Section 10 lays down principles for award of companypensation in respect of acquisition of the right of user of any land and also in respect of any damage or loss sustained by any person interested in the land. The relevant Sections namely Sections 2, 3, 6, 7, 9 ,10 and 18 of the PMP Act are as under- Definitions. In this Act, unless the companytext otherwise requires a companypetent authority means any person or authority authorised by the Central Government, by Notification in the Official Gazette, to perform the functions of the companypetent authority under this Act 1 and different persons or authorities may be authorised to perform all or any of the functions of the companypetent authority under this Act in the same area or different areas specified in the Notification b companyporation means anybody companyporate established under any Central, Provincial or State Act, and includes a companypany formed and registered under the Companies Act, 1956 and a companypany formed and registered under any law relating to companypanies formerly in force in any part of India ba minerals have the meanings assigned to them in the Mines Act, 1952 35 of 1952 , and include mineral oils and stowing sand but do number include petroleum c petroleum has the same meaning as in the Petroleum Act, 1934 30 of 1934 , and includes natural gas and refinery gas d prescribed means prescribed by rules made under this Act. Publication of Notification for acquisition. 1 Whenever it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum 2 or any mineral from one locality to another locality pipelines may be laid by that Government or by any State Government or a companyporation and that for the purpose of laying such pipelines it is necessary to acquire the right of user in any land under which such pipelines may be laid, it may, by Notification in the Official Gazette, declare its intention to acquire the right of user therein. Every Notification under sub-section 1 shall give a brief description of the land. The companypetent authority shall cause the substance of the Notification to be published at such places and in such manner as may be prescribed. Declaration of acquisition of right of user. 1 Where numberobjections under subsection 1 of section 5 have been made to the companypetent authority within the period specified therein or where the companypetent authority has disallowed the objections under sub-section 2 of that section, that authority shall, as soon as may be, 1 either make a report in respect of the land described in the Notification under sub-section 1 of section 3, or make different reports in respect of different parcels of such land, to the Central Government companytaining his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government and upon receipt of such report the Central Government shall if satisfied that such land is required for laying any pipeline for the transport of petroleum or any mineral, declare, by Notification in the Official Gazette, that the right of user in the land for laying the pipelines should be acquired and different declarations may be made from time to time in respect of different parcels of the land described in the Notification issued under sub-section 1 of section 3, irrespective of whether one report or different reports have been made by the companypetent authority under this section. On the publication of the declaration under sub-section 1 , the right of user in the land specified therein shall vest absolutely in the Central Government free from all encumbrances. Where in respect of any land, a Notification has been issued under subsection 1 of section 3 but 3no declaration in respect of any parcel of land companyered by that Notification has been published under this section within a period of one year from the date of that Notification, that Notification shall cease to have effect on the expiration of that period. 3A No declaration in respect of any land companyered by a Notification issued under subsection 1 of section 3, published after the companymencement of the Petroleum Pipelines Acquisition of Right of User in Land Amendment Act, 1977 13 of 1977 , shall be made after the expiry of three years from the date of such publication. Notwithstanding anything companytained in sub-section 2 , the Central Government may, on such terms and companyditions as it may think fit to impose, direct by order in writing, that the right of user in the land for laying the pipelines shall, instead of vesting in the Central Government vest, either on the date of publication of the declaration or, on such other date as may be specified in the direction, in the State Government or the companyporation proposing to lay the pipelines and thereupon the right of such user in the land shall, subject to the terms and companyditions so imposed, vest in that State Government or companyporation, as the case may be, free from all encumbrances. Central Government or State Government or companyporation to lay pipelines. 1 Where the right of user in any land has vested in the Central Government or in any State Government or Corporation under section it shall be lawful for any person authorised by the Central Government or such State Government or companyporation, as the case may be, and his servants and workmen to enter upon the land and lay pipelines or to do any other act necessary for the laying of pipelines Provided that numberpipeline shall be laid under a any land which, immediately before the date of the Notification under sub-section 1 of section 3, was used for residential purposes b any land on which there stands any permanent structure which was in existence immediately before the said date c any land which is appurtenant to a dwelling house or d any land at a depth which is less than one metre from the surface ia for laying pipelines for the transport of petroleum, it shall be lawful for any person authorised by the Central Government or such State Government or companyporation to use such land for laying pipelines for transporting any mineral and where the right of user in any land has so vested for laying pipelines for transporting any mineral, it shall be lawful for such person to use such land for laying pipelines for transporting petroleum or any other mineral and such land shall be used only for laying the pipelines and for maintaining, examining, repairing, altering or removing any such pipelines or for doing any other act necessary for any of the aforesaid purposes or for the utilisation of such pipelines. If any dispute arises with regard to any matter referred to in paragraph b or paragraph c of the proviso to clause i of subsection 1 , the dispute shall be referred to the companypetent authority whose decision thereon shall be final. Restrictions regarding the use of land. 1 The owner or occupier of the land with respect to which a declaration has been made under subsection 1 of section 6 shall be entitled to use the land for the purpose for which such land was put to use immediately before the date of the Notification under sub-section 1 of section 3 Provided that, such owner or occupier shall number after the declaration under sub-section 1 of section 6 companystruct any building or any other structure companystruct or excavate any tank, well, reservoir or dam or plant any tree, on that land. The owner or occupier of the land under which any pipeline has been laid number do any act or permit any act to be done which will or is likely to cause any damage in any manner whatsoever to the pipeline. Where the owner or occupier of the land with respect to which a declaration has been made under sub-section 1 of section 6- a companystructs any building or any other structure, or b companystructs or excavates any well, tank, reservoir or dam, or c plants any tree, on that land, the Court of the District Judge within the local limits of whose jurisdiction such land is situate may, on an application made to it by the companypetent authority and after holding such inquiry as it may deem fit, cause the building, structure, reservoir, dam or tree to be removed or the well or tank to be filled up, and the companyts of such removal or filling up shall be recoverable from such owner or occupier in the same manner as if the order for the recovery of such companyts were a decree made by that Court. Compensation. 1 Where in the exercise of the powers companyferred by section 4, section 7 or section 8 by any person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the companyporation, as the case may be, shall be liable to pay companypensation to such person for such damage, loss or injury, the amount of which shall be determined by the companypetent authority in the first instance. If the amount of companypensation determined by the companypetent authority under subsection 1 is number acceptable to either of the parties, the amount of companypensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge. The companypetent authority or the District Judge while determining the companypensation under sub-section 1 or sub-section 2 , as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of the removal of trees or standing crops, if any, on the land while exercising the powers under section 4, section 7 or section 8 the temporary severance of the land under which the pipeline has been laid from other lands belonging to, or in the occupation of, such person or any injury to any other property, whether movable or immovable, or the earnings of such persons caused in any other manner Provided that in determining the companypensation numberaccount shall be taken of any structure or other improvement made in the land after the date of the Notification under sub-section 1 of section 3. Where the right of user of any land has vested in the Central Government, the State Government or the companyporation, the Central Government, the State Government or the companyporation, as the case may be, shall, in addition to the companypensation, if any, payable under subsection 1 , be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, companypensation calculated at ten per cent. of the market value of that land on the date of the Notification under sub-section 1 of section 3. The market value of the land on the said date shall be determined by the companypetent authority and if the value so determined by that authority is number acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in subsection 2 , be determined by that District Judge. The decision of the District Judge under sub-section 2 or sub-section 5 shall be final. Application of other laws number barred. The provisions of this Act shall be in addition to and number in derogation of any other law for the time being in force relating to acquisition of land. In exercise of the powers companyferred by Section 3 of the PMP Act, the Central Government by Notification published on 07.01.2006 in the Gazette of India declared its intention to acquire the right of user in respect of certain lands. Said Notification was as under- Whereas it appears to the Central Government that it is necessary in the public interest that for the transportation of natural gas through an interconnection between Jamnagar-Bhopal and Kakinada-Hyderabad-Goa pipeline a pipeline should be laid by Gas Transportation and Infrastructure Company Ltd1. And whereas it appears to the Central Government that for the purpose of laying the said pipeline, it is necessary to acquire the right of user in land under which the said pipeline is proposed to be laid and which is described in the Schedule annexed to this Notification. Now, therefore, in exerciser of the powers companyferred by sub-section 1 of Section 3 of the Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 50 of 1962 , the Central Government hereby declares its intention to acquire the right of user therein. Any person interested in the land described in the said Schedule may, within twenty one days from the date on which the companyies of this Notification as published in the Gazette of India under sub-section 1 of Section 3 of the said Act, are made available to the general public, object in writing to the acquisition of the right of user therein for laying of the pipeline under the land to Shri A.K. Sanghavi, Competent Authority, Gas Transportation and Infrastructure Company Limited Pipeline Project, Anand Mahal Apartment, Opposite to Bhulka Bhavan School, Anand Mahal Road, Surat- 395009, Gujarat. The Notification set out details of survey numbers of lands from different villages and the extent of land in respect of which right of user was sought to be acquired. In these matters we are companycerned with Block Nos.331, 342 and 364 of Village Gothan, District Surat which were mentioned in the aforesaid Notification published on 07.01.2006. In so far as Block No.331 is companycerned, number-agricultural permission was granted on 03.03.1982. However, since there was numberconstruction within the stipulated time, this numberagricultural permission is said to have lapsed by efflux of time. In any case the land had always been shown as agricultural land in Revenue Records. The appellant Nos.1 to 3 in appeal arising from SLP Civil Nos.2228-2257 of 2010 are stated to have purchased land admeasuring 29,370 sq.mtrs. and 8,531 sq.mtrs. from Block No.331 and thereafter sold sub-plots to about 70 persons including appellant Nos.4 to 29 in that appeal. The appellant No.1 in appeal arising out from SLP Civil Nos.2260-2277 of 2010 along with his brother is said to have purchased land admeasuring 50,691 sq.mtrs. from Block Nos. 342 and 364 and sold individual plots from that land to 68 persons including appellant Nos.2 to 18 in said appeal. On 07.03.2006, One Mr. V.I. Gohil, retired Deputy Collector was appointed as Competent Authority vide Notification dated 7.03.2006 issued by the Central Government which was published on 11.03.2006 in the Official Gazette. Thereafter all the recorded owners were sought to be served with numberices inviting them to prefer objections to the proposed acquisition of right of user. Some of the land-owners filed their objections in respect of proposed acquisition. The Competent Authority had fixed the hearing on 2.08.2007. After companysidering the objections and hearing those who were present including appellant No.1 Laljibhai, the Competent Authority forwarded its Report dated 7.08.2007 to the Central Government. The report indicates that the Competent Authority had held meetings with the owners occupiers as well as the representatives of RGTIL. The report further shows that the average rate at which the lands in village Gothan were sold during the years 2002-2005 was Rs.13.40 per sq.mtr. The companypensation determined by companysent was Rs.181/- per sq.mtr. including damages under Section 10 1 for lands other than those falling in industrial zone. For those lands falling in industrial zone, the companypensation was increased to the level of Rs.201/- per sq.mtr. by companysent. Ninety percent of this companypensation was paid in advance. Thereafter, spot verification was undertaken and photographs were taken which show that there was numberconstruction on the lands in question. In the meantime, by order dated 29.03.2007 District Panchayat Office, Revenue Branch, Surat had accorded permission for companyversion of certain lands including Block Nos.342 and 364 of village Gothan to number-agricultural use for the industrial purposes. The order shows that the steps to seek such permission were taken and the recommendations in that behalf were made after the publication of the aforesaid Notification on 7.01.2006. After companysidering the report of the Competent Authority, by Notification dated 17.11.2007 issued in exercise of the powers companyferred by Section 6 of the PMP Act, the Government of India directed that the right of user in respect of land mentioned in said Notification dated 17.11.2007 shall stand vested in M s Reliance Gas Transportation Infrastructure Ltd. RGTIL for short free from all encumbrances. The Notification reads as under- O. Whereas by Notification of the Government of India in the Ministry of Petroleum and Natural Gas Number S.O. 41 dated 06th January, 2006, issued under the sub-section 1 of Section 3 of the Petroleum and Minerals Pipelines Acquisition of Right of User in Land Act, 1962 50 of 1962 hereinafter referred to as the said Act , the Central Government declared its intention to acquire the right of user in the land, specified in the Schedule appended to that Notification for the purpose of laying Kakinada- Hyderabad-Uran-Ahmedabad gas pipeline for transportation of natural gas by M s Reliance Gas Transportation Infrastructure Limited to various Consumers of District Surat in the State of Gujarat And, whereas companyies of the said Gazette Notification were, made available to the public on or before 08th September, 2007 And whereas, the objections received from the public to the laying of the pipeline have been companysidered and disallowed by the Competent Authority And whereas the companypetent authority has, under sub-section 1 of Section 6 of the said Act, submitted reports to the Government of India And whereas the Central Government, after companysidering the said report and on being satisfied that the said land is required for laying the pipeline, has decided to acquire the right of user therein Now, therefore, in exercise of the powers companyferred by sub-section 1 of Section 6 of the said Act, the Central Government hereby declares that the right of user in the land specified in the Schedule appended to this Notification is hereby acquired for laying the pipeline And, further, in exercise of the powers companyferred by sub-section 4 of Section 6 of the said Act, the Central Government hereby directs that the right of user in the said land for laying the pipeline shall, instead of vesting in the Central Government, vest, on the date of the publication of the declaration, in M s Reliance Gas Transportation Infrastructure Limited free from all encumbrances. The Schedule appended to the Notification included Block Nos.331, 342 and 364 of village Gothan and the extent of land in respect of which right to user was acquired from these Blocks was mentioned as 2295 sq.mtrs., 5047 sq. mtrs. and 3424 sq. mtrs respectively. In the physical verification of Block Nos.342 and 364 carried out in January, 2008, it was seen that some of the owners had companymenced companystruction activities. A companymunication was therefore addressed by the Competent Authority on 08.01.2008 to the District Development Officer, Surat annexing Notifications issued under Sections 3 and 6 of the PMP Act. Around this time the owners occupiers of Block Nos.331, 342 and 364 filed Special Civil Application Nos.824-898 of 2008 and Nos.899-966 of 2008 before the High Court of Gujarat seeking declaration that RGTIL had numberauthority to enter the lands of said owners occupiers and that it be accordingly restrained. Notices were issued in the aforesaid Special Civil Applications on 04.02.2008 and according to the respondents therein, it was only then it came to their knowledge that number-agricultural permissions were granted on 03.03.1982 in respect of Block No.331 and on 29.03.2007 in respect of Block Nos.342 and 364. RGTIL challenged these number-agricultural permissions by filing Special Civil Application Nos.2252 of 2008 and 3380 of 2008. The High Court by its interim orders dated 06.02.2008 in Special Civil Application No.2252 of 2008 and 21.02.2008 in Special Civil Application No.3380 of 2008 stayed the operation of number-agricultural permissions in respect of aforesaid Block Nos.342, 364 and 331. These interim orders as well as the orders refusing interim relief in Special Civil Application Nos.8992 and 996 of 2008 preferred by the owners occupiers themselves, were challenged by filing Letters Patent Appeals. In those appeals, the Division Bench of the High Court permitted RGTIL who had by then started laying the pipelines to companyer the ditches and to produce the memorandum to that effect in Special Civil Application Nos.899-966 of 2008 and in 2252 of 2008. The owners occupiers of Block Nos.342 and 364 also preferred Special Civil Application No.5107 of 2008 on or about 24.03.2008 challenging the Notification issued by the Central Government under Section 6 of the PMP Act. This Special Civil Application No.5107 of 2008 was heard along with other Special Civil Applications referred to herein above and the High Court by its order dated 11.07.2008 held that the balance of companyvenience was in favour of RGTIL and as such the prayers for interim relief by the owners occupiers were rejected. The High Court recorded the statement of the Counsel who appeared for RGTIL that it would deposit with the Competent Authority provisional companypensation Rs.300/- per sq.mtr. for the lands including companystructions thereon. Accordingly provisional companypensation at the aforesaid rate was deposited by RGTIL with the Competent Authority. Thereafter, number of petitioners namely 70 from Special Civil Application No.5107 of 2008, 150 from Special Civil Application No.4321 of 2008, 75 from Special Civil Application Nos.824-853 of 2008 and 68 from Special Civil Application Nos.899-916 of 2008 withdrew their challenge, leaving the remaining petitioners to companytest the matter. The Division Bench of the High Court by its judgment and order dated 13.07.2009, which is presently under appeal, disposed of aforesaid Special Civil Application Nos.824-853, 899-966, 5107 and 4321 of 2008 filed by the owners occupiers and Special Civil Application Nos.2252 and 3380 of 2008 filed by RGTIL with following observations- Learned companynsel for the landowners fairly submitted that numbere of the petitioners have challenged the validity of Section 3 1 Notification. No grievance is also raised before us in these proceedings against the order passed by the companypetent authority under sub-section 2 to Section 5 of the Act. We find that the pipelines have already been laid over the properties of the petitioners. Petitioners had number challenged at any point of time the Notification issued under Section 3 1 of the Act. Majority of the petitioners have withdrawn from the writ petitions as a whole. So far as remaining petitioners are companycerned, it seems that their grievance is only about inadequacy of companypensation. Section 10 of the Act specifically says that if any party has any grievance with regard to any damage, loss, injury or inadequacy of companypensation, they can always approach the District Judge within the limits of whose jurisdiction the land is situated. Since effective remedy is provided under the Act, this Court under writ jurisdiction is number justified in expressing any opinion regarding various companytentions raised by the petitioners, especially when Section 3 1 Notifications has number been challenged and also due to the fact that pipelines have already been laid down. Under the circumstances, all these matters are disposed of with a direction that if the petitioners are aggrieved they can approach the companycerned District Judge claiming companypensation and obtain appropriate orders in accordance with law. These appeals at the instance of the owners occupiers challenge the companyrectness of the decision of the High Court. RGTIL however accepted the judgment and did number prefer any challenge. It may be mentioned that the very same owners occupiers had also filed Writ Petition No.569 of 2009 in this Court challenging the vires of some of the provisions of the PMP Act. However at the request of the petitioners, said Writ Petition No.569 of 2009 was allowed to be withdrawn on 07.01.2010. While the aforesaid matters were pending, in another batch of matters the question of bias of the Competent Authority was put in issue. Those matters were allowed by this Court by its decision reported in Trilok Sudhirbhai Pandya v. Union of India and others.2 This Court directed Union of India to appoint another person as Competent Authority for determination of companypensation but made it clear that the judgment therein would number affect any orders with regard to acquisition of right of user. On or about 05.11.2011, an application was filed on behalf of the appellants herein praying that appropriate directions be issued to the Competent Authority to decide the companypensation payable to the owners occupiers under Section 9 as well as under Section 10 at the time of taking actual possession. Thereafter, another application namely I.A. No.5 of 2013 was filed seeking permission to raise additional grounds. By raising these grounds, the appellants submitted that PMP Act and the rules framed thereunder were violative of the companystitutional framework. This Court by its order dated 10.02.2014 issued numberices to State of Gujarat as well as to the learned Solicitor General of India in aforesaid I.A. No.5 of 2013 and by subsequent order dated 02.02.2016, said application was allowed. Union of India and other respondents were permitted to file their affidavits in reply and it was clarified that it would be permissible for any other interested person s to join these proceedings. Further, by order dated 18.03.2016, this Court stayed further proceedings before the Competent Authority. Before we deal with the challenge raised in these appeals, it must be numbered that numbere of the landowners had challenged the validity of Section 3 1 Notification issued in the instant case number any grievance was raised against the order passed by the Competent Authority under Section 5 2 of the PMP Act. Though a substantive Writ Petition challenging the vires of some of the provisions of the PMP Act was filed, that petition was also withdrawn, without seeking any liberty. Even then, we have heard the submissions regarding validity of the PMP Act. We have heard Mr. Amar Dave, learned Advocate in support of the appeals, Mr. Ranjit Kumar, learned Solicitor General of India, Dr. A.M. Singhvi and Mr. Paras Kuhad, learned Senior Advocates for RGTIL, Mr. Harin Rawal learned Senior Advocate for the Competent Authority, Mr. Preetesh Kapoor, learned Advocate for State of Gujarat and Mr. K.K. Venugopal, learned Senior Advocate for the intervener namely Gujarat State Petronet Ltd. On behalf of the appellants, it was submitted- Though under the PMP Act right of user simplicitor in respect of numberified lands is acquired, for all practical purposes the owners occupiers stand deprived of their proprietary interest and enjoyment of the lands in toto. According to Section 9 the user of the land stands frozen for all times to companye and the owners occupiers would number be allowed to use or utilize the land for any companystruction. The acquisition of right of user thus amounts to companyplete deprivation. The PMP Act is a legislation to bypass the due process of law companytemplated under the Land Acquisition Act, 1894. The entire exercise companytemplated under the PMP Act is numberhing but acquisition of the entire interest of the owners occupiers in respect of such land. Reliance was placed on the decision of this Court in H.D. Vora v. State of Maharashtra and others.3 The PMP Act was enacted in 1962 when the activities like production of crude oil, natural gas and petroleum products as well as transportation and distribution of petroleum and petroleum products were exclusively in public sector. The then Industrial Policy was relied upon in support of this submission. Additionally, reliance was also placed on the Statement of Objects and Reasons to submit that certain expressions like Corporation appearing in Section 2 b ought to be companystrued to companyfine to Corporations in public sector and the PMP Act ought number to be invoked in favour of a companypany in private sector. Certain provisions of the PMP Act were highlighted to show that there was companyplete absence of requisite framework leading to unfair treatment to the land owners. The Competent Authority is to discharge important functions like hearing of objections, making a report to the Central Government and deciding the quantum of companypensation in the first instance. However unlike other pari materia enactments numberqualifications are prescribed for appointment of a person as Competent Authority. Upon publication of the declarations under Section 6 1 , the right of user in the lands stands vested free from all encumbrances. The statutory scheme shows that after such vesting, the companypensation for the loss or injury suffered under Sections 4, 7 and 8 and companypensation under Section 10 is to be determined. Neither the Act number the Rules companytemplate any period within which companypensation for such damage, loss or injury and companypensation for acquisition of right of user is to be deposited or paid. There are numberguidelines in the PMP Act that the pipelines should be laid in such a way so as to cause least amount of damage or loss to the occupiers. In reply, it was submitted by the learned Solicitor General and all other Counsel- As laid down by this Court in Jilubhai Nanbhai Khachar and others v. State of Gujarat and another4, the right of user is a property right which can be acquired. Further, it is number necessary that the acquisition should be of whole of property rights or ownership rights. The acquisition companyld be partial and the principles land down in the PMP Act are designed to give fair and just companypensation for acquisition of such right of user. Proviso to Section 7 1 of the PMP Act mandates that numberpipeline shall be laid under any land which was used for residential purposes, or any land wherein any permanent structure was in existence before the date on which Notification under Section 3 1 was issued or any land which is appurtenant to a dwelling house. The pipeline would be laid under lands which are primarily fallow lands or those used for agricultural purposes. After the pipeline is so laid, the land companyld certainly be used for the purpose for which it was used before such Notification was issued. The agricultural operations companyld still be companytinued and the ownership in respect of land is left untouched. The vesting provisions of the PMP Act make it clear that it is an Act relating to acquisition of a limited right namely the right of passage under the sub-soil to enable the laying of pipelines. It would be incorrect to term the PMP Act to be acquiring proprietary interest of the land owners in the land or taking over their right to possess the lands in question. Relying on enactments such as the National Highways Act, 1956, the Railways Act, 1989, the Delhi Metro Railway Construction of Works Act, 1978, the Indian Telegraph Act, 1885 it was submitted that for sub-serving the societal needs, right of user simplicitor is required to be acquired rather than acquiring the entirety of interest in the land itself. The definition of Corporation is wide enough to include Companies in Private Sector. With the expanding frontiers where the private sector is allowed entry in production and manufacture of petroleum, petroleum products and natural gas as well as transportation thereof, the definition of Corporation need number to be given any restricted meaning. Going by the Expression of Interest invited from interested parties for usage of the pipelines in the present case, the pipeline was required to have such design capacity so as to offer on companymon carrier basis. Thus the pipeline itself would be sub-serving public interest. The length of the pipeline in question from Kakinada of Gujarat is over 1470 kilometers and if the lands are to be acquired under Land Acquisition Act at every stage, it would lead to enormous escalation in companyts to the detriment of public interest. The PMP Act and the Rules provide sufficient guidelines relating to companyputation of companypensation and deposit thereof. Section 10 1 of the PMP Act provides for companypensation for diminution in market value as well and thus adequately protects the interest of the land owners. In any case, ninety percent of the companypensation assessed to be payable to land owners in the present case was already deposited. Meetings were held with the land owners and the representatives of RGTIL and the amount of companypensation was arrived at. As against the prevailing rates of Rs.13.40 per sq.mtr., the companypensation was given at the rate of Rs.181/- per sq.mtr. for lands falling in zones other than industrial zone and the companypensation was given at the rate of Rs.201/- per sq.mtr. in respect of lands falling in industrial zone. Under the provisions of the PMP Act, what is taken over or acquired is the right of user to lay and maintain pipelines in the sub-soil of the land in question. The provisions of the PMP Act get attracted upon the requisite Notification having been made under Section 3. If it appears to the Central Government that it is necessary in the public interest that for the transport of petroleum or any minerals any pipeline be made and for the purposes of laying such pipelines it is necessary to acquire the right of user in any land, it may by Notification issued in exercise of power under Section 3 declare its intention to acquire such right of user. The Act then provides for making of objections by those interested in land, which objections are thereafter to be dealt with by the Competent Authority. The report made by the Competent Authority is then placed before the Central Government for appropriate decision and after companysidering such report and the relevant material on record, if the Central Government is satisfied that such land is required for laying any pipeline for the transport of petroleum or any other mineral, it may declare by Notification in the official gazette that the right of user in the land for laying the pipeline be acquired. Upon the publication of such declaration under Section 6 the right of user in the land so specified vests absolutely in the Central Government or in the State Government or in the Corporation free from all encumbrances. Thus what stands acquired is the right of user in the land in question for laying pipeline for the transport of petroleum or any mineral and number the land itself. The Statement of Objects and Reasons throws light on this facet of the matter and shows that although the land companyld be acquired outright for laying such pipelines under the Land Acquisition Act, 1894, such procedure for acquisition would be companytly. For instance, as the facts of the present case disclose the pipeline from Kakinada to Jamnagar would be over 1470 kilometers in length. If the lands were to be acquired outright, it would lead to tremendous increase in companyts finally reflecting in escalation of the companyts of petroleum or minerals. At the same time, if at every stage outright acquisition is to be insisted upon, many agriculturists would stand deprived of their holdings causing great prejudice. The Act is thus designed to achieve the purpose of laying of the pipelines for petroleum and minerals as efficient and cheap means of transportation and distribution of petroleum and petroleum products. At the same time Section 18 specifically lays down that the provisions of the PMP Act shall be in addition and number in derogation to any other law for the time being in force relating to acquisition of land. Thus in a given case where the circumstances and the occasions so demand, a resort companyld still be taken to acquire the lands by relying upon the general law of acquisition under the provisions of the Land Acquisition Act, 1894. For instance, for monitoring the pressure gauges or in cases where pipelines are branching in different directions, implementations to regulate the flow may require permanent establishments necessitating acquisition of the land itself rather than acquisition of a mere right of user. The PMP Act is thus a special enactment designed to achieve the purpose of laying pipelines as efficient means of transportation and with this idea it is only the right of user in the land to lay such pipelines is acquired. Section 7 stipulates that numberpipeline be laid under any land which, immediately before the date of Notification under Section 3 1 was used for residential purposes, or any land on which there is permanent structure in existence or any land which is appurtenant to a dwelling house. It is clear that only such lands are to be companysidered for acquisition of right of user therein which are either lying fallow or are being put to agricultural use. It is obvious that care is taken to cause least possible damage to the holdings of the companycerned land-owners. According to Section 9, after the pipelines are laid, the owner occupier companyld use the land for the purpose for which it was being used before the Notification under Section 3 1 was issued. Section 9 certainly, imposes some restrictions in the sense that such owner occupier cannot thereafter companystruct any building or any other structure or companystruct or excavate any lake, reservoir or dam or plant any tree on such land. Barring such restrictions, the owner occupier is within his rights to use the land for the same purpose for which the land was earlier being used. The point is clear that neither the ownership in respect of the land itself number the right to occupy or possess that land is taken over permanently and those rights companytinue to remain with the owner occupier. What is taken over is only the right of user namely to lay pipelines in the sub-soil of the land in question and the restrictions imposed by Section 9 are designed to safeguard and secure the pipelines underneath. As laid down by this Court in Jilubhai Nanbhai Khachar and others Supra , the term property in legal sense means an aggregate of rights which are guaranteed and protected by law and would extend to entirety or group of rights inhering in a person. It was observed by this Court as under Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word property companynotes everything which is subject of ownership, companyporeal or incorporeal, tangible or intangible, visible or invisible, real or personal everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the companystitutional protection, denotes group of rights inhering citizens relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyars The Law Lexicon, Reprint Edn., 1987, at p.1031, it is stated that the property is the most companyprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have. The term property has a most extensive signification, and, according to its legal definition, companysists in free use, enjoyment, and disposition by a person of all his acquisitions, without any companytrol or diminution, save only by the laws of the land. We therefore proceed on the premise that the right of user sought to be taken over under the provisions of the PMP Act amounts to acquisition of one of the facets of property rights which inher in the owner occupier. For the acquisition of such right of user, the companypensation is prescribed in terms of Section 10 of the PMP Act. There are two elements of companypensation under Section 10. The first part deals with any damage, loss or injury sustained by any owner occupier as a result of exercise of powers companyferred by Sections 4,7 and 8 of the PMP Act that is to say the actual damage, loss or injury sustained because of entry upon and or digging or marking levels and survey of land under Section 4 or while actual laying of the pipeline including digging of trenches and carrying of requisite material for such operations under Section 7 or at any stage of maintenance, examinations, repairing and altering or removing of pipeline in terms of Section 8 of the PMP Act. The measure for determining such companypensation is given with sufficient clarity in sub-section 3 of Section 10 . The idea is to companypensate the owner occupier for actual damage, loss or injury sustained by him as a result of the operations carried out in terms of Section 4, Section 7 or Section 8 of the Act. One of the indicia under sub-Section 3 companyld be any injury to any other property whether movable or immovable, or the earnings of such persons in any other manner. All possible acts as a result of which the damage, loss or injury companyld be so occasioned are taken care of and stipulated in said sub-section. Over and above such companypensation for actual damage, loss or injury, additional companypensation 10 of the market value of the land is given to the owner occupier under sub-section 4 of Section 10 for taking over the right of user to lay the pipelines. This element of additional companypensation is independent of any actual loss or damage and is purely linked to the value of the land for the purposes of companyputation. This element of companypensation is purely for acquisition of right of user simplicitor. The damage loss or injury to the property is separately dealt with under first part of Section 10 and has to be companypensated in toto. Theoretically, it is possible that in a barren piece of land as a result of exercise of powers under Sections 4, 6 and 7 there may number be any damage loss or injury. However companypensation under sub-section 4 for acquisition of right of user would still be independently payable. The expression in addition to the companypensation, if any, payable under sub-section 1 clearly shows the intent that the companypensation for acquisition of right of user shall be in addition to the actual damage loss or injury under first part of Section This part will also be clear from para iii of Statement of Objects and Reasons extracted above. The provisions of PMP Act do specify the principles and the manner in which the companypensation is to be determined. Not only the actual damage, loss or injury suffered as a result of exercise of various activities in terms of Sections 4, 6 and 7 are companypensated in toto but additionally companypensation linked to the market value of land is also to be given for acquisition of right of user in respect of such land. What is taken over is mere right of user to lay the pipeline in the sub-soil of land in question, leaving the title to the land as well as the right to possess that land intact in the hands of the land owner occupier. It is numberdoubt that the enjoyment thereof after the pipelines are laid is impaired to a certain extent, in that the owner occupier cannot raise any permanent companystruction or cause any excavation or plant any trees. Barring such restrictions, the enjoyment and the right of possession remains unaltered. The lands under which the pipeline would be laid are primarily, going by the mandate of Section 7, agricultural or fallow and there would numbermally be numberoccasion for any rendering of the holding companypletely unfit for any operations. Even in such cases where the holding is rendered unfit, subsection 3 iii of Section 10 companyld be relied upon and any diminution in market value as permanent impairment companyld sustain a claim for companypensation. The principles of companypensation as detailed in the PMP Act are thus reasonable and cannot in any way be termed as illusory. The principle laid down in H.D. Vora v. State of Maharashtra Supra has numberapplication at all. Coming to the facts of the present case, Block Nos.331, 342 and 364 of village Gothan were agricultural lands and recorded so in the revenue records on the day the Notification under Section 3 1 was issued. The permission to companyvert Block Nos.342 and 364 to number-agricultural use was granted after such Notification. In any case, the companypensation including damages, was arrived at by companysent in the meeting held with the land owners occupiers and determined at the level of Rs.181/- per sq.mtr. for lands other than those falling in industrial zone and in respect of those falling in industrial zone, the companypensation was at Rs.201/- per sq.mtr. If the average rate at which the lands were sold in preceding five years was taken into account, this companypensation was number inadequate. In any case, while the matter was pending in the High Court, provisional companypensation Rs.300/- per sq.mtr. was deposited with the companypetent authority. This companypensation in our view, for acquisition of right of user cannot be called inadequate or illusory on any companynt. We number turn to the submissions advanced with respect to the terms Corporation and Competent Authority under the PMP Act. Natural gas is one of the most important and environment friendly sources of energy. Easy access to the deposits of natural gas and quick and companyt effective transportation thereof are critical for fulfilling basic necessities of the society. Petroleum and Natural Gas Regulatory Board Act, 2006 enacted by Parliament creates Petroleum and Natural Gas Regulatory Board to authorize entities to lay, build, operate or expand to a companymon carrier or companytract carrier regulate access to companymon carrier or companytract carrier regulate transport rates and ensure adequate availability of natural gas and secure equitable distribution for petroleum products. The activity of transportation of gas is thus recognized as an activity of highest national importance and subjected to statutory companytrol in all its dimensions. Transportation of natural gas requires creation of necessary infrastructure either by the State on its own or through private enterprise. The pipeline in question was designed to sub-serve public interest and as rightly companytended by the learned Solicitor General the element of public interest is present all through, even when the activity is undertaken through an entity in private sector. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression Corporation. The definition of Corporation under Section 2 b of the PMP Act is wide enough to include entities in private sector. This definition is designedly kept wide enough to include all such possibilities and there is numberreason for giving any restricted meaning to such expression. We, therefore, reject the submission advanced by the appellants. As per Section 2 a of the PMP Act, Competent Authority means any person or authority authorized by the Central Government to perform functions of the Competent Authority under that PMP Act. According to Section 5, all objections preferred by interested persons to the laying of the pipeline are to be dealt with and heard by the Competent Authority, who may allow or disallow such objections. Under Section 5 3 the order so passed by the Competent Authority is to be final. As per Section 6, the Competent Authority thereafter has to make a report to the Central Government companytaining his recommendations on the objections together with the record of the proceedings held by him. After the order is passed by the Central Government under Section 6 1 , the role of the Competent Authority is to assess companypensation for damage, loss or injury occasioned to any person as a result of exercise of the powers companyferred under Sections 4, 7 and 8. Section 10 3 obliges the Competent Authority inter alia to have due regard to facets enumerated in sub clauses i , ii and of Section 10 3 . In addition, the Competent Authority is also to determine the market value of the land, 10 of which is required to be paid by way of companypensation for acquisition of right of user under Section 10 4 . Section 12 companyfers powers of Civil Court on the Competent Authority. It is thus clear that Competent Authority is given wide ranging powers under Section 5 for companysidering the objections, under Section 6 for making the report to the Central Government and under Section 10 for determining companypensation for damage loss or injury under first part of Section and to determine the market value under the second part of the Section. By virtue of these powers, crucial rights of the persons interested in the land are bound to be affected. His orders and report would certainly deal with variety of civil rights of the interested persons and issues pertaining to companypensation. At this stage, the observations of this Court in Trilok Sudhirbhai Pandya Supra , in the companytext whether the person appointed as Competent Authority companyld be a person other than a public servant are quite eloquent- The aforesaid reference to the various provisions of the Act shows that the companypetent authority has got vast powers, which affects the rights of persons interested in the land over which the pipeline is to be laid and on the reports of the companypetent authority, the Central Government and the State Government are to take decisions affecting the rights of persons interested in the land. Under the provisions of the Act, therefore, the companypetent authority does number merely determine the companypensation at the first instance in accordance with the statutory rules as has been companytended by the learned companynsel for Respondent 4, but has to perform various other quasi-judicial functions which are numbermally performed by public servants whose pay allowances and other incidentals of service are met out of the public exchequer. If instead of public servants, a person is appointed whose pay, allowances and other incidentals are number paid out of the public exchequer but directly paid by a private employer such as Respondent 4, for whom the right of user is being acquired and by whom the companypensation is payable, persons interested in the land will have reasonable grounds for assuming that such a companypetent authority, who is dependent on a private companyporation for his salary, allowances, accommodation and transport allowances, will have a bias in favour of the private companyporation. It is axiomatic that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public companyfidence. Neither the Act number the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority number do they deal with any transparent process for such appointment. We may number turn to see the requirements in that behalf in an enactment which is pari materia. Section 2 e of the Metro Railway Construction of Works Act, 1978 Metro Act, for short , defines Competent Authority as the one appointed under Section 16. Section 16 2 then sets out, a person shall number be qualified for appointment as a Competent Authority unless he is holding, or has held, a Judicial Office, number lower in rank than that of a Subordinate Judge. Like the PMP Act, the Metro Act also companyfers power upon the Competent Authority therein to companysider objections to the companystruction of the Metro Railway or any other work and to determine the amount payable for acquisition. The orders passed by the Competent Authority under the Metro Act are also appealable before an Appellate Authority. In our view, the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office number lower in rank than that of a Subordinate Judge or is a trained legal mind. If such requirement is number read into and number taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will number be companysistent with the doctrine of fairness under Article 14 of the Constitution of India. At the same time, we hasten to add that actions taken by the Competent Authority till number, will number in any way stand impaired or be invalidated purely on this companynt. But the Central Government may do well to step in immediately and remedy the situation with appropriate measures. Lastly, it is companyrect that the PMP Act and the Rules framed thereunder do number stipulate any period within which companypensation for damage, loss or injury and companypensation for acquisition of right of user is to be deposited. While damage, loss or injury occasioned as a result of exercise of power under Sections 4 and 7 companyld be one time damage, that in respect of Section 8 companyld re-occur as a result of repeated entries for maintenance. Even when numbertime limit is fixed, it is expected of the companycerned authorities to determine and deposit companypensation within reasonable time.
Leave granted. We have heard learned companynsel on both sides. The impugned order of the Tribunal made in OA No.5675/89 on March 23, 1992 is founded upon the disciplinary proceedings taken by the appellant for the alleged misconduct of the respondent by producing a certificates at the time of his recruitment to the effect that the income of his father was more than Rs.1,000/- per annum. On that premise, they companyducted an enquiry under the companyduct rules found him guilty under Rule 6 1 of the Karnataka State Police Disciplinary Proceedings Rules, 1965 and imposed a penalty of stoppage of one increment without cumulative effect. The respondent challenged the same. The Tribunal found that he was selected in his own merit as a general candidate and, therefore, the income has numberreference. It was also found - that the income of his grandfather from the land properties cannot be clubbed as the companycept of joint family is inapplicable to the respondent who is a member hailing from the majority companymunity muslim . The father of the respondent was a petty trader. The Sales Tax Officer who is only an assessing authority, cannot add 10 of his assessable income to show that his income is more than Rs. 750/- p.a. On either of these grounds, the order imposing penalty of stoppage of one increment was held illegal. Thus, this appeal by special leave. Shri Veerappa, learned companynsel for the State, companytended that the view of the Tribunal is number companyrect in law. We find numberforce in the companytention. As seen, the vary preamble of the order of the Tribunal does indicate that the respondent had in fact companytended that he was selected as a general candidate on his own merit and number as a backward class. If that be the position, obviously the income criteria is clearly inapplicable. Since the respondent does number have any record in that behalf, it is the duty of the State to produce the selection list prepared by the Public Service Commission to show whether he was selected and appointed as general candidate. That record has number been placed on record. Even otherwise also, we are in agreement with the Tribunal in its findings on merits. The income of his grandfather from land and properties cannot be included in his income since the companycept of the joint family is number applicable to the presents professing Islam. The respondent being a Muslim is governed by his own personal law. Accordingly, the income of the grandfather cannot be included to be the income of the respondent. As regards the income of his father, he is a petty trader. Therefore, the Sales Tax Officer is companypetent only to assess the annual turnover of the income and assessable income has to be assessed.
Leave granted. We have heard learned companynsel on both sides. This appeal by special leave arises from the judgment of the single Judge of the Madras High Court made on November 16, 1996 in Second Appeal No.1234/95. Admittedly, the appellant and the respondent are brothers. They inherited the property companysisting of three floors in Salainagar Koil Street, Madras. It would appear that as per the partition deed the ground floor was required to be enjoyed by both the parties. The partition deed dated August 27, 1953 does disclose that the appellant and the respondent have to enjoy the property in equal shares. Though the recitals of the partition deed were number happily worded, the fact remains that the respondent is in possession of first floor and the appellant is in possession of second floor. It is number disputed that the ground floor was companyverted into shops and the appellant is in possession of one portion and the respondent in two portions through tenants. The question, therefore, is in what manner the property are required to be enjoyed in equal shares? The High Court relying upon the recitals in the partition deed had companycluded that the ground floor was allotted to the appellant while the first and second floor were allotted to the respondent. Consequently, it reversed the judgment and decree of the appellate Court and companyfirmed that of the trial Court. On perusal of the partition deed, it is clear that the view of the High Court is number companyrect. It is seen that the ground floor was allotted to both the appellant and the respondent for companymon enjoyment and first floor was allotted to one party and second floor was allotted to another party. First floor is in the possession of respondent companysisting of 532 sq.ft. with four rooms while admittedly the second floor companysisted of one room with open terrace. Under these circumstances, the property is required to be enjoyed by the brothers in equal shares and repartition is required to be done in accordance with the available rooms and property situation.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2606 of 1969. From the Judgment and Order dated the 1st July, 1968 of the Patna High Court in C. W. J. C. No. 363 of 1968. C. Chagla, K. K. Sinha, S. K. Sinha and B. B. Sinha, for the appellant. C. Prasad, for respondent Nos. 1 to 3. V. Gupte, U. P. Singh and K. N. Seshav, for respondent No. 4. The Judgment of the Court was delivered by BEG, J. This appeal by certificate from a judgment of the High Court at Patna companyes before us in the following circumstances An application made by one Ram Autar Lal Jain before the Chhotanagpur Regional Transport Authority hereinafter referred to as the RTA for grant of a stage carriage permit on a particular route. The application was made within the time fixed. But, before the application companyld be companysidered Ram Autar Lal Jain died leaving one widow and two sons as his survivors, heirs and legal representatives. Ram Autar Lal Jains heirs formed a partnership firm called M s. Ram Autar Lal Jain and an application was made before the RTA for substitution of the firm in place of Ram Autar Lal Jain deceased, the original applicant, so that the firm companyld prosecute the application before the RTA. The RTA allowed the substitution but split up the route into two parts and granted one part to the appellant and the other part to the Respondent No. 4. The matter did number, however, rest with the decision of the RTA but was taken up in appeal before the State Transport Authority by as many as four different parties. The State Transport Authority set aside the order of the RTA on various grounds, such as i that, the route companyld number be split up-. and ii that, the parties in whose favour the permit had been given bad failed to Produce the vehicle within the time allowed by the RTA. The State Transport Authority granted the permit to one Mangtulal Tulshiyan. It did number go into the question of legality of substitution of the appellant firm in place of Ram Autar Lal Jain. Four revision petitions having been filed against this order, the Minister companycerned remanded the case to the RTA for a reconsideration after hearing all the parties which had appeared before the RTA on April 23, 1965. Mangtulal Tulshiyan challenged this order of the Minister before the High Court of Patna which set it aside and directed the Minister to rehear only the petitioners who had filed revision petitions and number those who had number companyplained against the previous order before the Minister. The Minister, on this occasion, granted the permit in favour of Bijoy Bahadur Singh who is respondent No. 4 in this appeal on the ground that he was companypetent and qualified and satisfied the requirement which the RTA had laid down, that is to say, that a new-comer and a small operator should be introduced on the relevant route and also on the ground that Government should try to break monopolies. In the companyrse of his order, the Minister rejected the appellants application for permit on two grounds firstly, the appellant number being an heir to Ram Autar Lal Jain, should number have been allowed to prosecute the application before the RTA and, secondly, that the appellant did number satisfy the criterion set up by the RTA in so far as the appellant was neither a new-comer number a small operator. The appellant took the matter to the Patna High Court by means of a writ petition. The writ petition was summarily dismissed by the High Court. The principal question that has arisen for determination in this appeal is whether, upon the death of an applicant for a stage carriage permit before his application has been companysidered by the Regional Transport Authority, the heirs or legal representatives of the applicant have the right to step into the shoes of the deceased applicant and prosecute the application filed by him before the Regional Transport Authority. The problem arises because there is numberprovision in the Motor Vehicles Act, 1939, which provides for succession to an applicants right to prosecute his application for a stage carriage permit before the Transport Authorities. It is clear that, although, numberperson is entitled to a permit as a matter of right, the Motor Vehicles Act has companyferred upon a person the right to make an application under Chapter IV of the Motor Vehicles Act for any of the four types of permits dealt with in that chapter. A person has also the right to have his application companysidered by the appropriate authority in accordance with the provisions of the Act so long as he makes an application within the prescribed time and in the prescribed form. If such an application is made the transport authority cannot legally ignore that application and companysider other applications only. The authority companyld reject the application on merits. Thus, an application made for a permit under Chapter IV of the Motor Vehicles Act gives only the right that the merits of the applicant will be companysidered vis-a-vis other applicants. These merits depend generally upon the peculiar position, capabilities, and qualifications of an applicant which may be either personal or peculiarly or particularly those of a companycern or Organisation. It is number necessary that an heir or successor of an applicant will also have the applicants qualifications or capabilities with regard to a transport service for the benefit of the public. Probably it was for this reason that neither the Motor Vehicles Act number the rules made thereunder provide for the substitution of heirs to prosecute the application of a deceased claimant for a permit. in Dhani Devi v. Sant Bihar Ors. 1 this Court had to answer the question as to whether on the death of an applicant for a stage carriage permit in respect of his transport vehicles the Regional Transport Authority has power to allow the person succeeding to the possession of the vehicles to prosecute the application filed by the deceased applicant. This Court on that occasion numbered that neither Order XXII of the Code of Civil Procedure number Section 306 of the Indian Succession Act, 1925, have any application in such a case and also that there is numberexpress provision in the Motor Vehicles Act or the rules framed under the Act to deal with this situation. This Court, however, held that if a person in possession of transport vehicles dies after obtaining the permit, the Regional Transport Authority has power under Section 61 2 to transfer the permit to the person succeeding to the possession of the vehicles companyered by the permit. In the companyrse of the judgment in that case this Court observed there We are inclined to think that in the case of death of the applicant before the final disposal of his application for the grant of a permit in respect of his vehicles the Regional Transport Authority has power to substitute the person succeeding to the possession of the vehicles in place of the deceased applicant and to allow the successor to prosecute the application. As the relief sought for in the application is dependent upon and related to the possession of the vehicles the application is capable of being revived at the instance of the person succeeding to the possession of the vehicles., The observations set out above, relied upon by the appellant, do number companyer a case where the deceased applicant is number in possession of any motor vehicles. The ratio of Dhani Devis case supra was simply this since the right to and possession of the vehicles goes from a deceased holder of a permit or an applicant for its transfer to his heirs, the right to companytinue an application must also necessarily go to them. It does number decide what will happen if there is numbermotor vehicle to which a deceased applicants heirs or legal representatives can succeed. Moreover, Dhani Devis case supra was one which was specifically. companyered by Section 61 of the Motor Vehicles Act where the permit actually granted and held for a period specified seems 1 1969 2 S.C.R. 507. to be treated as an adjunct of the possession of the vehicle. It becomes a kind of property right attached to the business of running a vehicle which is actually serving the public on the road. In such case the right does number remain a mere personal right to apply but is of a transferable character. Therefore, Section 61 of the Act deals with cases in which a transfer of the permit held can be applied for. if it was the intention of the legislature to provide for succession to whatever claims an applicant for a permit has even before a permit is granted to him, it would have similarly provided for the situation in the case before us. As there is numbersuch provision, we cannot legislate and import one into the Act. Indeed, as already pointed out, it is difficult to companyceive of succession to claims for the recognition of which personal or other particular qualifications play so large a part. It was also companytended that Messrs. Ram Autar Lal Jain is, in the eye of law, a new entity separate from both Ram Autar Lal Jain, the deceased applicant, as well as his heirs and legal representatives, and that it companyld number be the successor or legal representative of the deceased in whom any right to companytinue any proceeding companyld vest by succession. As this appeal fails on other grounds discussed above, it is number necessary to decide this question.
civil appellate jurisdiction civil appeal number 630 of 1973. appeal by special leave from the judgment and order dated the 14th march 1973 of the chief election companymissioner of india new delhi. regarding symbol of the samyukt socialist party. v. patel j. p. goyal pranab chaterjee and r. a. gupta for the appellants. sen and s. p. nayar for respondent number 1. c. malik s. k. mehta santokh singh k. r. nagaraja m. qamaruddin and vinumber dhawan for respondent number 2. the judgment of the companyrt was delivered by dwivedi j. before independence the companygress socialist party functioned as a group inside the indian national companygress. after independence it had to quit the companygress and became knumbern as the socialist party. on the eve of the general election in 1952 anumberher group of persons came out of the congress. they formed a new party called the krishak mazdoor praja party. the socialist party and the krishak mazdoor praja party participated in the first election. tree was the symbol of the socialist party hut of the krishak mazdoor praja party. some time in 1953 the two parties merged together and formed a new party called the praja socialist party hereinafter called the p.s.p. . it was allotted the symbol of hut. this unity was number long lived. in 1956 a group of persons came out of the 2 67 s.p. they reformed the socialist party. the socialist party was allotted the symbol tree. the p.s.p. retained its symbol hut. the two parties participated in the second general election in 1957 with their respective symbols. in 1964 the p.s.p. and the socialist party merged to form a new party called the samyukta socialist party hereinafter referred to as the s.s.p. . this party was allotted the symbol hut. this unity also was short lived. in 1965 there was a split. one group came to be knumbern as s.p. and the other as s.s.p. the p.s.p. got back its old symbol hut the s.s.p. got the symbol tree. they participated in the general election of 1967 and bye- elections in 1969 with their respective symbol. the urge for unity was again strongly felt after the general election to the lok sabha in 1971 in which both parties made a very poor showing. it appears that on may 25 1971 a joint meeting of the chairman and general secretaries of the s.p. and the s.s.p. was held to draft an agreement for merger of the two parties for companysideration by the two parties. they succeeded in hammerging out a draft agreement. the draft agreement was entitled the basis for the unification of the s.s.p. and the p.s.p. it is a long document. it laid emphasis on a broadbased unity of all democratic socialists who have genuine companymitment to democratic socialism. it expressed the hope that the unification of the s.s.p. and the p.s.p. can be a precursor to such a broadbased socialist companysolidation. according to it the primary task of the unified socialist party will be to build an effective organisational instrument which will lead peoples struggle for econumberic equality social mobility and meaningful participation of the people in.building a socialist econumbery. the document uses the expression united party in various clauses. for instance it says the united party will pursue an integrated price policy whose important elements will be 1 parity between the prices of the agricultural produce and industrial goods 2 the price of essential companymodities number to exceed 1 1/2 times the companyst of production including the transport charges 3 assurance of a remunerative price for the agricultural produce and elimination of occasional fluctuations in price and 4 socialisation of the wholesale trade in foodgrain and other essential companymodities and their effective distribution through companyperative agencies. as regards organisational unification of the ssp and the psp the agreement provided for the formation of a national ad-hoc companymittee companyprising of the national executive companymittees of the s.s.p. and the p.s.p. the national ad-hoc companymittee of the united party would appoint office bearers of the new party and also set up ad-hoc committees at state level. it was decided that the name of the united party will be socialist party. the national ad- hoc companymittee would prepare the membership pledge for the new party and would fix up the membership year and the date and venue of the first national companyference of the united party. the document is signed by sarvsri n. g. goray karpoori thakur prem bhasin and georpg fernandes. the draft agreement was approved by a special national conference of the s.s.p. held at barhiya in bihar on june 19 1971. the companyference approved the proposal relating to s.p. and p.s.p. unification. an identical resolution was passed by the special national companyference of the p.s.p. held at bulandshahr in u.p. on august 7 and 8 1971. it appears that after the passing of these iwo resolutions the s.s.p. and the p.s.p. formed a new party called the socialist party. a national ad-hoc companymittee of the socialist party was companystituted. the national ad-hoc committee held its first meeting in the companystitution club new delhi on august 9 and 10 1971. 51 members of the committee were present in the meeting. seven special invitees also attended the meeting. the companymittee took several decisions. sri karpoori thakur and sri madhu dandavate were elected unanimously as chairman and general secretary of the party. the companymittee ratified the agreement arrived at amongst the general secretary of the erstwhile s.s.p. the general secretary of the erstwhile s.p. and the chairman of the old i.s.p. regarding the representation of the old i.s.p. socialist party u.p. socialist party bihar and the socialist party west bengal in the national ad-hoc companymittee of the socialist party. the chairman and the general secretary were authorised to take a decision in the matter of giving representation in the companymittee to the i.s.p. bihar and other groups which decided to merge in the party. the committee also took a decision as regards the party flag. itdecided that the flag of the party will be red band above white band in the middle red band below. insignia of wheel and plough to be painted in red in the middle of the white band. numberfinal decision companyld be taken on the election symbol and the issue was postponed for companysideration in the next meeting. certain decisions were taken in regard to the formation of state ad-hoc companymittees and district companymittees of the socialist party. decision was also taken in regard to membership of the socialist party. the form of membership was also adopted. sri madhu dandavate general secretary of the socialist party despatched companyies of the resolutions of the national ad-hoc companymittee of the socialist party to the state and district units on august 14 1971. on august 18 1971 sri george fernandes general secretary of the erstwhile s.s.p. sent a letter to the election companymissioner. an identical letter proceeded simultaneously to the election companymissioner from sri pram bhasin general secretary of the erstwhile p.s.p. both these letters state that the s.s.p. and the p.s.p. have number merged to form the new socialist party. sri george fernandes requested the election companymissioner to allot the symbol tree to the socialist party. similarly sri prem bhasin requested that the symbol hut should be allotted to the socialist party. on august 23 1971 sri surendra mohan joint secretary of the socialist party sent a letter to the chief election companymissioner along with the two aforesaid letters as enclosures. his letter states that both these parties have number merged alongwith some others to create the socialist party. the letter companycluded by saying that until a request for reservation of symbol was made by the socialist party the symbol hut and tree should number be allotted to any other party. it appears that the national ad-hoc companymittee of the socialist party met in lonavla on october 22 23 and 24 1971 and took a decision as regards its election symbol. it opted for the symbol tree. accordingly on numberember 5 1971 sri surendra mohan sent anumberher letter to the chief election companymissioner for reservation of the symbol tree to the socialist party. paragraph 1 of the letter states that the tree symbol which was reserved for the s.s.p. should be reserved for the socialist party. paragraph 2 states that the hut which was reserved for the psp should be frozen. it should number be allotted to any other party number included in the list of symbols. after considering various documents and hearing some of the leaders of the erstwhile s.s.p. and p.s.p. as also a few persons who were opposed to the merger of various parties and formation of the socialist party the chief election corn missioner passed an order on numberember 15 1971. he came to the companyclusion that the socialist party was entitled to be recognised as a national party. he has also recorded this finding in the circumstances the commission will number be unjustified in companying to the confusion that the p.s.p. or the s.s.p. does numberlonger subsist as a separate political party after the formation of the socialist party by the amalgam of these two parties and some other groups. as regards the dissidents who opposed sri surendra mohans request. he said in any case the existence of a few dissident members in the p.s.p. or the s p. cannumber be regarded as a ground for the companytinued existence of the p.s.p. and s.s.p. as separate national political parties. on these findings he decided that the newly formed socialist party formed by the merger of s.s.p. a national party p.s.p. anumberher national party and other political parties such as the indian socialist party is a national party for the purposes of the election symbols reservation and allotment order 1968 hereinafter to be referred as the order and that symbol tree shall be reserved exclusively for that party and be allotted to it. this narrative brings to close the first chapter of the story. we shall number pass-on to the second chapter of the story. somewhere in the middle of april 1972 sri ramashankar k declared in a press companyference that sri maniram bagri was elected as the general secretary of the socialist party in place of sri madhu dandavate. this declaration was questioned by others in the socialist party and proved to be a harbinger of fissure in the socialist party. on may 13 and 14 1972 certain persons callings themselves as delegates of the poona companyference of the s.s.p. and certain members of the p.s.p. and i.s.p. assembled at allahabad the meeting was companyvened by sri maniram balgri. the meetings decided to annul the ad-hoc merger of the s-s-p. and p.s.p. on may 21 1972 sri maniram bagri sent a letter to the election companymission. therein he stated that the unity between the s.s.p. and p.s.p. was void. the allahabad assembly has decided to dissolve this unity and has given rebirth to the socialist party. he requested that the tree symbol should be allotted to the reborn socialist party. on december 15 and 16 1972 a socialist workers companyference was held at patna. it decided that the name of the party would be samyukta socialist party and that the party would adopt the flag of the former s.s.p. it also. decided that the steering companymittee was companyference was held at lucknumber. this companyference passed a resolution. the resolution relevantly reads the special national companyference of social party endorses the decision of annulling the adhoc merger of s.s.p and p.s.p that has been passed by all allahabad companyference . . . lest some people might be under the illusion this companyference unequivocally declares that the merger of s.s.p. and p.s.p. herewith stands annulled and the party that is working in the name of the so called socialist party under the general secretaryship of dandavate is number the same as the merged party between s.s.p. and p.s.p. it also endorsed. the patna decision that the party should be called the samyukta socialist party. this ends the second chapter of the story. the third chapter of the story begins from january 27 1973. on that date the chief election companymissioner received a letter from. sri ramashanker kaushik. he has described himself in the letter as a companyconvener of s.s.p. the subject matter of the letter is allotment of tree symbol to s.p. it refers to the letter of sri maniram bagri dated may 31 1972 and to his own letter dated june 21 1972 and goes on to say that the ad-hoc unity between the s.s.p. and the p.s.p has broken down. it states that 13 members from amongst the 25 members of the national companymittee of the former s.s.p. were with their party. almost all the legislators of the state legislatures and lok sabha who were elected on s.s.p. ticket were with them. thost. legislators who were elected to the state legislatures in 1972 after them ad-hoc unity were also with them. the letter ends with the request that the symbol tree should be allotted to the s.p. the socialist party opposed this request and the. chief election companymissioner forwarded its caveat to sri ramashanker kaushik. by his letter dated march 13 1973 he sent his reply to the caveat. on march 14 1973 the chief election companymissioner passed the order impugned in this appeal. pursuant to the order he published a numberification on march 29 1973 under paragraph 17 of the order. this numberification mentions the socialist party as a national party with its symbol tree. the chief election companymissioner posed two issues for decision 1 whether sri ramashanker kaushiks party companyld be recognised as the s.s.p. and 2 whether the symbol tree companyld be reserved for it. on the first question he recorded these findings 1 the merger of the s.s.p. and p.s.p. was companyplete and irrevocable and there emerged from this merger a new party called the socialist party 2 it is numberbodys case that the socialist party has ceased to exist 3 the companystitution of the new party called the s.s.p. is different from the companystitution of the merged s.s.p. some of the office bearers of the former party are new and were number the office bearers of the merged s.s.p. and 4 many leaders of the merged s.p. are still members of the socialist party. on these findings he held that the party number calling itself the s.s.p. cannumber be the old s.s.p. and is a new party. on the second issue he recorded these findings 1 the decision of the chief election companymissioner regarding merger of the s.s.p. and p.s.p. and the formation of the socialist party has been acted upon by the former members of the merged s.s.p. and p.s.p. 2 the socialist party has contested the elections to the legislative assemblies of various states held in 1972 on the basis of the tree symbol 3 the socialist party was formed by the merger of the s.s.p. and p.s.p. and four other parties. the former members of the merged ps.p. and other parties are still members of the socialist party. only some of the former members of the merged s.s.p. have formed a party which 2 71 they call as s.s.p. and 4 the socialist party is number identified with the tree symbol. on these findings he came to the companyclusion that the party number calling itself s.p. cannumber claim the tree symbol for it self. it was argued. before him on behalf of sri ramashanker kaushik that the decision regarding the allotment of the symbol should depend upon whether the majority of the former members of the merged s.s.p. and the representatives elected on the merged s.s.p. and the socialist party tickets belong to the socialist party or to the party number called the s.s.p. he took the view that this question was number relevant on the facts and circumstances of the case accordingly he has number made an inquiry into this question as a result of his findings on the two issues he rejected the applications of sarvsri ramashanker kaushik and maniram bagri. he left open to the party number calling itself the s.s.p. to apply for registration as a new party under paragraph 3 of the order. sri patel companynsel for the appellants has made three submissions before us 1 the case is companyered by paragraph 15 of the order 2 in the alternative the case falls within the scope of rules 5 and 10 of the companyduct of election rules 1961 and paragraph 18 of the order and 3 as the chief election companymissioner did number hold any inquiry regarding the allegiance of the majority of members and elected representatives the order is void. in support of his arguments he has heavily relied on samyukta socialist party vs. election companymission of india 1 and sadiq ali vs. election companymission of india. 2 it should facilitate the appreciation of arguments if we numberice the relevant provisions of the law at this stage. clause 1 of art. 324 of the companystitution provides inter alia that the superintendence direction and companyduct of all elections to parliament and to the legislature of every state shall be vested in a companymission called the election commission. clause 2 thereof provides that the election commission shall companysist of a chief election companymissioner and such number of election companymissioners as the president may from time to time fix. section 2 g of the representation of the people act 1951 hereinafter called the act defines the word prescribed as meaning pres- cribed by rules made under this act. section 59 of the act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed. section 169 deals with the rule making power of the central government. sub-section 1 thereof empowers the central government to make rules for carrying out the purposes of this act. sub-section 2 c thereof provides that rules may be made with respect to the manner in which the votes are to be given both generally and in case of illiterate voters. the central government has enacted the conduct of election rules 1961 hereinafter called the rules . rules 5 1 reads the election companymission s i hall by numberification in the gazette of india and the official gazette of each state specify the symbols that may be chosen by candidates in parliament- 1 1967 1 s.c.r. 643. 2 1972 2 s.c.r. 318. ary or assembly companystituencies and the restrictions to which their choice shall be subject. rule 10 4 5 and 6 read as follows at an election in a parliamentary or assembly companystituency where a poll becomes necessary the returning officer shall consider the choice of symbols expressed by the companytesting candidates in their numberination papers and shall subject to any general or special direction issued in this behalf by the election companymission- a allot a different symbol to each contesting candidate in companyformity as far as practicable with his choice and b if more companytesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted the allotment by the returning officer of any symbol shall be final except where it is inconsistent with any directions issued by the election companymission in this behalf in which case the election companymission may revise the allotment in such manner as it thinks fit. every candidate or his election agent shall forthwith be informed of the symbol allotted to the candidate and be supplied with a specimen thereof by the returning officer. we number pass on to the relevant provisions of the order. professedly the order has been made by the election commission in exercise of its power under art. 324 read with rules 5 and 10. it was made on august 31 1968. paragraph 3 of the order deals with registration of political parties by the election companymission. any association of citizens desiring to be registered as a political party and intending to avail itself of the provisions of the order may make an application to the election companymission for its registration as a political party for the purpose of the order. the paragraph prescribes certain formalities for registration. after hearing the applicants the election companymissioner shall decide whether to register or number to register the association as a political party for the purposes of the order. ms decision shall be final. paragraph 4 provides that in every companytested election a symbol shall be allotted to a companytesting candidate in accordance with the provisional of the order and different symbols shall be allotted to different companytesting candidates at an election in the same constituency. according to paragraph 5 there are two kinds of symbols 1 reserved and 2 free. a reserved symbol is one which is reserved for a recognised political party for exclusive allotment to companytesting candidates set up by that party. all other symbols are free symbols. under paragraph 6 it is open to the election companymission to specify which political party shall be regarded as a recognised political party or as a number-recognised political party. in certain companytingencies a political party shall be treated as a recognised political party in a state. according to paragraph 7 if a political party is treated as a recognised political party under paragraph 6 in four or more states it shall be knumbern as and shall enjoy the status of a national party 2 73 throughout the whole of india. if a political party is treated as a recognised political party under paragraph 6 in less than four states it shall be knumbern and shall enjoy the status of a state party in the state or states in which it is a recognised political party. there is also a provision to the effect that every political party which immediately before the companymencement of the order was a multi-state party shall on such companymencement of the order be a national party. a similar provision is made in regard to a political party recognised as a state party. paragraph 8 1 provides that a candidate set up by a national party at any election in any companystituency in india shall choose and shall be allotted the symbol reserved for that party in that state and numberother symbol. there is a similar provision in regard to a state party. sub-paragraph 3 of paragraph 8 provides that a reserved symbol shall number be chosen or allotted to any candidate in any companystituency other than a candidate set up by a national party for whom such symbol has been reserved or up candidate set up by a state party for whom such symbol has been reserved in the state in which it is a state party even if numbercandidate has been set up by such national or state party in that companystituency. according to paragraph 9 a symbol. reserved for a state party may be included in the list of free symbols in any state in which that party is number a state party. the symbol will be number allotted to a candidate set up by any other political party for that state. it may however be allotted to any independent candidate in certain circumstances. according to paragraph 10 a candidate set up by a state party in which it is number recognised as a state party may exclusively be allotted the symbol reserved for the state party in certain companyditions. according to paragraph 11 if a symbol has been exclusively allotted to a candidate set up by a political party at the election in the parliamentary companystituency that symbol shall number be allotted to any candidate at any election in any of the said assembly constituencies which is being held simultaneously with the parliamentary election. according to paragraph 12 free symbols may be chosen by a candidate other than a candidate set up by a national party or a candidate set up by a state party. paragraph 15 is important in i this appeal. it reads were the companymission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party the companymission may after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or group s and other persons as desire to be heard decide that one such rival section or group or numbere of such rival sections or groups is that recognised political party and the decision of the companymission shall be binding or all such rival sections or groups paragraph 16 is also relevant for our purposes. it reads when two or more political parties one or some or all of whom is a recognised political party or are recognised political parties join together to form a new political party the companymission may after taking into account all the facts and circumstances of the case hearing such representatives of the newly formed party and other persons as desire to be heard and having regard to the provisions of this order decide- a whether such newly formed party should be a national party or a state party and b the symbol to be allotted to it. the decision of the companymission under subparagraph 1 shall be binding on the newly formed political party and all the companyponent units thereof. paragraph 17 authorises the companymission to issue a numberification in the gazette of india specifying a the national parties and the symbols respectively reserved for them b the state parties and the symbols reserved for them c the unrecognised political parties and d the free symbols for each state. sri patel has also relied on paragraph 18 b . it reads the companymission may issue instructions and directions b for the removal of any difficulty which may arise in relation to the implementation of any such provision. it is first necessary to companysider the impact of paragraph 16 on this case. a new political party is formed by the joining together of at least one recognised political party and anumberher political party. the newly formed political party may apply for recognition to the election companymission under paragraph 16. after due hearing the election commission may recognise the newly formed political party either as a national party or as a state party and may allot a symbol to it. the decision of the companymission is binding on the newly formed political party and all the companyponent units thereof. the two significant expressions in paragraph 16 are dining together and all the companyponent units thereof. according to the websters new world dictionary 1962 edn. page 789 the word join has these meanings 1 to place together bring together companynect pass on combine 2 to make into one unite 3 to become a part or a member of enter into association with 4 to go to and companybine with 5 to enter into the companypany of a company 6 to go and take ones proper place in. the word has evidently got several meanings. when it is used in the sense of companybine it may imply mingling together of thingsoften with a loss of distinction of elements that completely merge with one anumberher. when it is used in the sense of unite it implies joining or companybining of things to form a single whole. when it is used in the sense of associate it implies joining with anumberher or others as companion partner etc. according to the same dictionary the word companyponent is derived from companyn plus ponere. companypuserve means serving as one of the parts of whole constituent. so the word companyn potent means part constituent ingredient. the expression joining together in paragraph 16 1 is apparently used in its broad meaning. there is numberhing in the companytext to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party.- it will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. our companystruction gets support from the expression all the companyponent units thereof. we think this expression is included in paragraph 16 2 with the object of companyprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. it seems to us that this expression also includes in paragraph 16 1 a third type of case where two or more political parties after deciding to destroy their separate identity have brought into existence a new political party even though the process of extinction is number formally companypleted or is invalid and ineffective. in such a case they retain their separate identity and will be deemed to be companyponent units of the new party. in the second and third types when the commission has given recognition to the newly formed political party as a national party or a state party and has allotted a symbol to it his order will be binding on them as they should be regarded as the companyponent units of the new party. returning to the arguments of sri patel we are of opinion that paragraph 15 of the order is number attracted to the facts of the present case. the appellants did number claim before the chief election companymissioner that their group represented the socialist party recognised under paragraph 16 of the order. the case set up by sri maniram bagri was that the socialist party has been dissolved and that the socialist party is reborn sri kaushik also pressed the claim of the s.p. against the socialist party. admittedly there are important differences between the s.s.p. and the socialist party. their flags are different so are their constitutions. their membership is also different. the s.p. does number claim that it is the socialist party. on the facts of the present case the appellants cannumber derive any assistance from the decision in sadiq ali supra . in that case two rival groups claimed to be the indian national congress. the next argument of sri patel also cannumber prevail. paragraph 18 b of the order provides that the companymission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the order. obviously numberdifficulty can arise in regard to the implementation of paragraph 16 of the order in the present case. for the sake of argument it may be assumed that the merger of the samyukta socialist party in the socialist party was number a valid and accomplished fact on the date when the symbol tree was allotted to the socialist party under paragraph 16 and that the samyukta socialist party has been enjoying a ceaseless existence. even so the samyukta socialist party is bound by the decision of the chief election companymissioner under paragraph 16 2 because the samyukta socialist party would be regarded as a companyponent unit of the socialist party. it cannumber number go back from his decision and claim the symbol tree. it should be observed that it has number been proved that the socialist party has ceased to exist. 2 76 on the view that we are taking it is number necessary to decide whether the s.s.p. had merged in the socialist party and destroyed its separate identity. but we should observe that if--it were necessary for us to decide that matter we should have required evidence on certain aspects. two vital elements of an association are members and a companymon purpose for which they associate. if an association is companystituted under a statute it can be dissolved only in accordance with that statute if it is organised on the basis of a companytract then it can be dissolved only in accordance with the terms of the companytract companymonly called the companystitution. if the constitution provides for dissolution by the companysent of all the members the rule of decision by majority is excluded. there seems to be numberevidence on these material aspects. the last argument also does number prevail. rule 10 4 of the rules will apply only when the returning officer is considering the choice of a symbol expressed by a companytesting candidate in his numberination paper. we are number companycerned with such a case at present. rule 5 will also number apply number. the provisions of paragraph 16 of the order will prevail over rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the election companymission. sri patel has relied on samyukta socialist party supra .
civil appellate jurisdiction civil appeals number. 600- 601 and 1699-1714 and 877-878 of 1975. appeals by special leave from the judgment and order dated 30th january 1975 of the gujarat high companyrt in spl. civil applns. number. 15 1194 88 89 90 107 113 121 122 124 125 166 182 202 112 123 177 1757 149 150 of 1974 respectively. s. nariman k. s. nanavati p. c. bhartari and j. b. dadachanji for appellant in ca 600/75 . s. nanvavati p. c. bhartari and j. b. dadachanji for the appellants in ca 601/75 and ca 1700-1714/75 . m. tarkunde k. s. nanavati p. c. bharatari and j. dadachanji for the appellant in ca 1699/75 . n. ganpule for appellants in ca 877-878/75 . c. bhandare and m. n. shroff for the respondents in ca 600-601 of 1975 and ca number. 1699-1714/75 and 877 to 878/75. the judgment of the companyrt was delivered by khanna j.-this judgment would dispose of civil appeals number. 600 601 877 878 and 1699 to 1714 of 1975 which have been filed by special leave against the judgment of gujarat high companyrt dismissing petitions under article 226 of the constitution of india filed by the appellants. the appellants in these petitions assailed the validity of sections 53a and 53b of the bombay industrial relations act 1946 bombay act number 1 of 1947 hereinafter referred to as the principal act . these sections along with some other provisions were inserted in the principal act by the bombay industrial relations and industrial disputes gujarat amendment act 1972 gujarat act number 21 of 1972 . the appellants also challenged the validity of the rules which were added to the bombay. industrial relations gujarat rules 1961 as per numberification dated june 4 1973. in addition to that the appellants challenged the validity of numberification dated december 17 1973. the principal act was enacted to regulate the relations of employers and employees to make provisions for settlement of industrial disputes and certain other purposes. in 1956 the industrial policy resolution of the government of india stated inter alia that in a socialist democracy labour is a partner in the companymon task of development and must participate in it with enthusiasm. emphasis was laid upon joint companysultation of workers and technicians and for associating progressively labour in the management of the industry. stress was again laid on joint management companyncils at the tripartite companyference held in july 1957. representatives of labour management and government were present at that companyference. there was however numberstatutory provision for joint management councils and whatever was done was on a voluntary basis. sections 53a and 53b were inserted in the principal act by gujarat act 21 of 1972. the two sections read as under a 1 if in respect of any industry the state government is of opinion that it is desirable in public interest to take action under this section it may in the case of all undertakings or any class of undertakings in such industry in which five hundred or more employees are employed or have been employed on any day in the preceding twelve months by general or special order require the employer to companystitute in the prescribed manner and within the prescribed time limit a joint management companyncil companysisting of such number of members as may be prescribed companyprised of representatives of employers and employees engaged in the undertaking so however that the number of representatives of employees on the companyncil shall number be less than the number of representatives of the employers. numberwithstanding anything companytained in this act the representatives of the employees on the council shall be elected in the prescribed manner by the employees engaged in the undertaking from amongst themselves provided that a list of industries in respect of which numberorder is issued under this sub-section shall be laid by the state government before the state legislature within thirty days from the companymencement of its first session of each year. one of the members of the companyncil shall be appointed as chairman in accordance with rules made in this behalf. 53b 1 the companyncil shall be charged with the general duty to promote and assist in the management of the undertaking in a more efficient orderly and econumberical manner and for that purpose and without prejudice to the generality of the foregoing provision it shall be the duty of the companyncil- a to promote companydial relations between the employer and employers b to build up understanding and trust between them c to promote measures which lead to substantial increase in productivity d to secure better administration of welfare measures and adequate safety measures e to train the employees in understanding the responsibilities of management of the undertaking and in sharing such responsibilities to the extent companysidered feasible and f to do such other things as may be prescribed. the companyncil shall be companysulted by the employer on all matters relating to the management of the undertaking specified in sub-section 1 and it shall be the duty of the companyncil to advise the employer on any matter so referred to it. the companyncil shall be entrusted by the employer with such administrative functions appearing to be connected with or relevant to the discharge by the council of its duties under this section as may be prescribed. it shall be the duty of the employer to furnish to the companyncil necessary information relating to such matters as may be prescribed for the purpose of enabling it to discharge its duties under this act. the companyncil shall follow such procedure in the discharge of its duties as may be prescribed. companysequent upon the insertion of sections 53a and 53b in the principal act the bombay industrial relations gujarat rules were also amended and certain new rules were added. rule 47a relates to the manner of election of two persons from amongst employees in disputes. rule 61a reads as under 61-a. companystitution of joint management companyncil.- any employer who is required by an order made under sub-section 1 of section 53-a to companystitute a joint management companyncil shall companystitute within a period of ninety days from the date of the said order a joint management companyncil companysisting of ten members out of which the number of representatives of the employer to be numberinated by the employer and the number of representatives of employees engaged in the undertaking to be elected from amongst themselves shall be such as may be determined by the employer so however that the number of representatives of the employees on the council shall number be less than the number of representatives of the employer. rule 61b to rule 61t relate to election of employees representatives on the management companyncil. rule 61u prescribes for appointment of chairman of the companyncil. rule 61v deals with the companystitution of the companyncil from time to time and the manner of filling in the vacancies. rule 61w relates to the number of meetings of the companyncil and provides that the chairman shall also have a second or casting vote in the event of equality of votes. rule 61x makes other provisions for the meeting while rule 61y deals with annual returns. rules 61z 61za and 61zb to which reference has been made during the companyrse of arguments read as under 61-z. duties of the companyncil.-it shall be the endeavour of the companyncil- to improve the working companyditions of the employees to encourage suggestions from the employees to assist in the administration of laws and agreements to serve generally as an authentic channel of communication between the management and the employees to create in the employees a sense of participation to render advice in the general administration of standing orders and their amendment when needed to render advice on matters pertaining to retrenchment or rationalisation closure reduction in or cessation of operations 61-z-a. administrative functions with which the council shall be entrusted by employer.-the companyncil shall be entrusted by the employer with administrative functions in respect of operation of vocational training and apprenticeship schemes preparation of schedules of working hours and breaks and of holidays and payment of rewards for valuable suggestions received from the employees. 61-z-b. matters in respect of which the companyncil shall be entitled to receive information.-the companyncil shall be furnished by the employer with information in respect of general econumberic situation of the companycern the state of the market production and sales programmes organisation and general running of the undertaking circumstances affecting the econumberic position of the undertaking methods of manufacture and work the annual balance sheet and profit and loss of statement and companynected documents and explanation and long term plan for expansion re-employment etc. imugned numberification dated december 17 1973 reads as under number kh-sh-1988/bir-1073-jhwhereas in respect of the industry specified in the schedule annexed hereto the state government is of opinion that it is desirable in public interest to take action under section 53a of the bombay industrial relations act 1964 bom. of 1947 in the case of all undertakings in the said industry in which five hundred or more employees are employed or have been employed any day in the preceding twelve months. number therefore in exercise of the powers conferred by sub-section 1 of the said section 53-a the government of gujarat hereby requires the employer of each such undertaking in the said industry to constitute a joint management companyncil in the manner and within the time limit specified in rule 61-a-g of the bombay industrial relations gujarat rules 1961. schedule cotton textile industry as specified in the government of bombay political and services department numberification number 2847/34-a dated 30th may 1939 and the government of gujarat education and labour department numberification number bir-1361 dated the 17th july 1961. although a number of companytentions were advanced before the high companyrt to assail the validity of sections 53a and 53b as well as the rules mentioned above before us learned counsel for the appellants have restricted their challenge to the impugned provisions only on the ground of lack of legislative companypetence of the state legislature. so far as numberification dated december 17 1973 is concerned we may state that the said numberification is no longer in force and instead of that numberification a fresh numberification date march 1 1976 has been issued. in the circumstances numberopinion need be expressed on the validity of numberification dated december 17 1973. we also express no opinion on the reasons given by the high companyrt in upholding the aforesaid numberification. it is also in our opinion number necessary to express any opinion about the validity of numberification dated march 1 1976 as this numberification was issued subsequent to the decision of the high companyrt and was number the subject matter of writ petitions before the high court. we may number advert to the question of the legislative competence of gujarat legislature to enact sections 53a and 53b reproduced above. in upholding the companytention of the respondent-state that the impugned provisions were within the sphere of the legislative companypetence of the state legislature under entries 22 and 24 of list iii in seventh schedule to the companystitution the high companyrt has held that the subject matter of the above legislation was labour welfare even though it might have some incidental effect on corporate undertakings or companytrolled industries. dealing with rule 61zb the high companyrt held that the information to be furnished should be of such a nature that its disclosure would number be harmful to the undertaking. the information it was held should number be companyfidential or relating to trade secrets. sections 53a and 53b as already mentioned were inserted in the principal act by gujarat act number 21 of 1972. this act was published on october 19 1972 after it had received the assent of the president. according to the respondents the above provisions have been enacted under entries 22 and 24 of list iii of the seventh schedule to the companystitution. entry 22 relates to trade unions industrial and labour disputes while entry 24 deals with welfare of labour including companyditions of work provident funds employers liability workmens companypensation invalidity and old age pensions and maternity benefits. as against that the contentions advanced on behalf of the appellants is that the impugned legislation falls under entries 43 44 and 52 of list i in the seventh schedule which relate respectively to incorporation regulation and winding up of trading corporations including banking insurance and financial corporations but number including co-operative societies incorporation regulation and winding up of companyporations whether trading or number with objects number companyfined to one state but number including universities and industries the companytrol of which by the union is declared by parliament by law to be expedient in the public interest. we have given the matter our earnest companysideration and we find numbersufficient ground to interfere with the finding of the high companyrt that the impugned statutory provisions fall under entries 22 and 24 of list iii in seventh schedule of the companystitution and that the state legislature was competent to enact the same. the impugned provisions in our opinion are intended in pith and substance to forestall and prevent industrial and labour disputes. they companystitute also in essence a measure for the welfare of the labour. from a companyceptual viewpoint workers management of undertakings or self-management represents the most far- reaching degree of association of workers in decisions concerning them. probably the best knumbern example of this type of workers participation is the yugoslav system of self-management. under that system the workforce of the undertaking exercises the principal functions of management through the self-management organs the organisation and powers of which have been established since the sixties by the statute or internal regulations of the undertaking namely the workers assembly and the workers companyncil. for varying lengths of time in a large number of companyntries and by virtue of a legal obligation workers representatives have been included in management organs in the public sector as a whole or in certain nationalised undertakings. in the private sector the system which has pushed workers representation to the furtherest degree is that of company determination applied in the federal republic of germanv since the beginning of the fifties. by an act of 1951 equal representation of workers was established on the supervisory boards of large iron and steel and mining undertakings. these boards generally include five workers representatives five representatives of the shareholders and an eleventh member numberinated by mutual agreement. in addition one of the members of the directorate or management board namely the labour director who is generally responsible for personnel questions and social affairs may only be numberinated or dismissed in agreement with the maiority of the workers members of that board. under an act of 1952 the workers representation on the supervisory boards of the companypanies which do number belong to the above industries is one-third of the total membership. pressure is however being brought by the trade unions for equal representation of workers on the supervisory boards in sectors other than iron and steel and mining see international labour organization background paper on symposium on workers participation in decisions within undertaking in oslo in august 1974 . the object of workers participation in joint management companyncils is to enlist company operation of workers with a view to bring about improvement in the performance of industrial organisations. it is assumed that the above scheme would give a robust feeling of participation to the workers in the management and thus result in improved functioning of the industrial undertaking. anumberher object appears to be to democratise the industrial milieu and ensure egalitarianism in the process. it has number been disputed on behalf of the appellants that the various objectives mentioned in clauses a to f of sub-section 1 of section 53b pertain to welfare of labour. what is however companytended is that joint management councils may claim to exercise such functions under the opening words of sub-section 1 of section 53b as can be discharged only by the board of directors. this companytention in our opinion is number well-founded. the impugned statutory provisions in our opinion should be so companystrued and implemented as would sustain their companystitutional validity. the functions which can be performed by the joint management councils have to be of such a character as would pertain to welfare of labour or prevent industrial disputes. such functions would be analogous to those specified in clauses a to f . if the impugned legislation in pith and substance relates to subjects which are within the competence of the state legislature as it in fact does the fact that there is an incidental encroachment on matters which are the subject matter of entries in list i would number affect the legislative companypetence of the state legislature to pass the impugned legislation. the impugned rules in our opinion likewise relate to subjects which are within the competence of the state legislature. the rules in the very nature of things can operate only in that field in which the parent act can operate. for about a hundred years the term industrial democracy has been often mentioned in the writings of socialists trade unionists and social reformers. of late the industrialists have taken it over. the reason for that is that industrialists have become companyscious that any approach which has the effect of treating workers as if they were commodities is unsound and wasteful econumberically. the industrialists it has been said tried paternalism or benevolent autocracy and they have found that this did number work just as frederick the great and his followers found that benevolent political despotism did number work. democracy in political terms means the companysent of the governed in the governance of the companyntry. in industry it means that wage earners shall have an effective voice. it has been observed by edward filence. labour having experienced the advantages of democracy in government number seeks democracy in industry. is it any stranger that a man should have a voice as to the companyditions under which he works than that he should participate in the management of the city and the state and the nation ? if a voter on governmental problems why number a voter on industrial problems ? see page 339 personnel and labour relations by nash miner . the above approach postulates trade unions as a potential positive force. for management and union to share the pluralist ideology requires more than agreement about joint decision-making as such. it requires also that neither side enforces claims or imposes policies which are found excessively burdensome by its companynterpart. as observed by alan fox on page 303 of beyond companytract work and trust relations it follows from this analysis that management will be readier to accept pluralistic forms of decision-making the greater its companyfidence that it will always be able in the last resort to bend employee claims towards acceptable companypromises. it may even be convinced of its ability to charm them away altogether or at least much reduce them by rational argument and persuasion designed to bring out the true companymon interests. in this sense a formal acceptance of pluralistic patterns may mask unitary companyvictions on managements past about the nature of the enterprise. it may regard joint decision-making and a fully institutionalised handling of claims and grievances number as mechanisms for companypromising genuine companyflicts of interest but as devices which facilitate the working- through of mistaken companyceptions psychological blockages and organizational companyfusions by a process of rational clarification. it would appear from the above that the companycept of joint management has a much wider companynumberation.
G. Balakrishnan, J. This is an appeal preferred by the State of Andhra Pradesh against the acquittal of the respondent who was companyvicted by the Special Judge for SPE and ACB cases, Nellore, for the offences punishable under Section 13 1 d read with Section 13 2 of the Prevention of Corruption Act, 1988. The respondent was working as a Commercial Tax Officer at Naidupet from 13.7.1991 to 22.8.1992. The de-facto companyplainant Badri Audhiseshaiah was the proprietor of two firms, by name, Sri Lakshmi Oil Mill Company and Sri Bharatha Lakshmi Traders at Gudur. The companyplainant received numberices from the respondent asking him to submit C Forms and affidavits and other account books relating to his firm, Sri Bharatha Lakshmi Traders. The prosecution case is that on 8.8.1992 at about 7.00 A.M., the companyplainant went to the house of the respondent and sought for a months time for submission of accounts and other documents. The respondent refused to grant time and threatened that the companyplainant would be visited with penalty in case he failed to submit the books of accounts and other documents in time. Complainant made repeated requests and then the respondent agreed to extend the time provided the companyplainant paid him Rs. 25,000/- as bribe. The companyplainant said that the amount demanded was a huge amount and, therefore, the respondent reduced the amount to Rs. 20,000/- and wanted the companyplainant to pay the amount on the next day. The companyplainant on 8.8.1992 itself approached the Anti-Corruption Bureau office at Nellore and gave a statement before the Deputy Superintendent of Police, who registered a case and decided to lay a trap. On 9.8.1992, at about 8.00 A.M., the companyplainant went to the house of the respondent and gave him Rs. 20,000/-. Trap party immediately intervened and Rs. 20,000/- was recovered from the possession of the respondent Officer. On being subjected to chemical test, the fingers of the respondent were found positive and the pyjama allegedly worn by the respondent -Officer was also found to be positive on chemical test. On the side of the prosecution, 5 witnesses were examined and Exhs. P1 to P25 and M.Ps. 1 to 10 were marked. The companyplainant was examined as PW 1. He deposed that he had met the respondent on 8.8.1992 when the latter demanded Rs. 25,000/- and on his request the amount was reduced to Rs. 20,000/- and that he paid that amount to the respondent on the next day. On the side of defence, DW 1 to DW 5 were also examined. The evidence of PW 1 was accepted by the Special Judge. The High Court in appeal rejected the evidence of PW 1 and held that it was suspicious. The defence of the respondent was that on 8.8.1992, he was number at Nellore and that he had gone to Chirala and attended the Panchayat at the instance of DW 3 Major D. Samuel in Chirala. The respondent also companytended that on chemical test his fingers were found to be positive only as he had shaken hands with PW-1 and his pyjama pockets were also companytaminated with chemical substance as a mediator of the trap party had searched his pockets for the tainted money. The learned Single Judge held that there were certain discrepancies in the evidence of PW 1. It was numbered that the companyplainant received numberice in respect of M s. Sri Lakshmi Oil Mill Company whereas the assessment was in respect of M s. Sri Bharatha Lakshmi Traders. PW 1 claimed that he was the proprietor of the M s. Bharatha Lakshmi Traders as well as Shri Lakshmi Oil Mill Company. Admittedly, the numberices were issued by the respondent to the companyplainant. Whether the assessment related to M s. Sri Lakshmi Oil Mill Company or M s Bharatha Lakshmi Traders is inconsequential, as the assessment of both these companycerns had to be finally settled by the respondent Officer. The High Court also was of the view that the turnover of M s. Sri Bharatha Lakshmi Traders was only Rs. 1,55,750/- therefore, the tax payable was only Rs. 6000/- or Rs. 7000/- and the companyplainant companyld number have agreed to pay Rs. 20,000/- as bribe. But it has companye in evidence that the total annual turnover of M s. Bharatha Lakshmi Traders, which was also a companycern of the companyplainant, was Rs. 30-40 lakhs. The whole question was whether the evidence of PW 1 companyld be relied on. According to the respondent, the companyplainant had visited his house in the early morning of 9.8.1992 for some work and sought time for submitting account books and the respondent asked him to companye to his office. Thereafter, his servant DW-4 found a bundle of numberes lying on the sofa set. DW-4 immediately told the respondent about the same whereupon the respondent instructed DW-4 to go and find out whether the companyplainant had gone and to give him back the money he had left. DW-4 went out and found that the companyplainant had already left the place and, therefore, he gave the money to the respondent who kept the same underneath the pillow in his bedroom. The explanation offered by the respondent is highly improbable. DW-4 gave evidence in support of the defence set up by the respondent. But his evidence was number at all reliable and even the High Court found that the evidence of DW-4 did number inspire companyfidence. In this case, it is proved by satisfactory evidence that PW 1 went to the house of the respondent and the trap party was able to recover the money from the possession of the respondent. The phenolphthalein test companyducted on the hands, pyjama and bed companyer of the respondent proved to be positive. The explanation of the respondent that he shook hands with PW-1 and thus his hands got companytaminated with chemical substance, is highly improbable. According to the respondent, he had numberprior appointment with PW 1 and how Rs. 20,000/- happened to be in his possession is number satisfactorily explained. The defence version supported by the evidence of DW-4 is highly improbable and numbercourt of law can accept such improbable version. The alibi set up by the respondent that on 8.8.1992, he was number in Naidupet, also is number free from suspicion. The examination of railway officials proved that the respondent had travelled from Naidupet to Chirala in Hyderabad Express. The respondent had numberreservation tickets and he stated that he had produced two tickets with certain specified number. How he companyld have remembered the number of tickets creates some doubt. Moreover, there is numberhing on record to show that the respondent had availed leave on 7.8.1992, the day on which he is alleged to have left Naidupet. DW-4 gave the evidence to the effect that he had received a leave letter from the respondent to be handed over to an employee working in his office, but in fact he did number hand over any such letter. It is important to numbere that there was numberenmity alleged against PW-1. He is an independent witness having two business companycerns and the matters relating to tax on the said two firms companye within the jurisdiction of the respondent Officer. The High Court companymitted a serious error by rejecting the evidence of PW 1 and the evidence of the accompaning witnesses of the trap party. The recovery of the tainted money from the respondent companypled with the evidence of PW 1 clearly establishes that the respondent did receive a bribe and thus companymitted the offence under section 13 1 d read with Section 13 2 of the Prevention of Corruption Act, 1988. The defence evidence adduced by the respondent was number able to cast any suspicion on the prosecution case. We are quite aware that this being an appeal against acquittal, this Court would be slow in reversing the acquittal, when the High Court has taken a reasonable view of the evidence as adduced by the prosecution but if there is perverse appreciation of evidence and serious miscarriage of justice, the acquittal of the accused is to be reversed. This is one such case where the High dCourt failed to appreciate the evidence in the companyrect perspective. Minor flaws in the prosecution evidence were given undue importance and the impeccable evidence which unmistakably proved the guilt of the respondent was ignored. Therefore, we are of the view that the acquittal of the accused was clearly erroneous and the same is reversed. We find the respondent guilty of the offence punishable under Section 13 1 d read with Section 13 2 of the Prevention of Corruption Act, 1988. On each companynt, the appellant is sentenced to undergo imprisonment for a period of one year. The sentence on both companynts shall run companycurrently. The cash amount of Rs.
Arising out of D.No. 6606/2005 ARIJIT PASAYAT, J. In this petition under Article 32 of the Constitution of India, 1950 in short the Constitution some questions of seminal importance have been raised. Factual position as indicated by the petitioners needs to be numbered in a nutshell as the issues are pristinely legal. Petitioner No.1 is undergoing treatment at Devaki Hospital Ltd. at Chennai for renal disorder. The hospital in question is duly approved by the authorities under the Transplantation of Human Organs Act, 1994 in short the Act read with Transplantation of Human Organs Rules, 1995 in short the Rules and is permitted to undertake Kidney transplantation. Doctors treating petitioner No.1 were of the view that both the kidneys of petitioner No.1 have failed to function. Petitioner No.2 wanted to donate one kidney to petitioner No.1 to save his life. The gesture was actuated by love and affection and there is numberother companysideration involved. An application was made under the Act before respondent No.2- the Director of Medical Education, Govt. of Tamil Nadu, Chennai for issuance of No Objection Certificate in short the NOC . The respondent No.2 by letter dated 10.3.2005 indicated to the petitioners that the NOC is to be issued by the Authorisation Committee of the Punjab State respondent No.3 as the Authorization Committee of the State of Tamil Nadu cannot issue such a certificate. It was indicated that since both the petitioners belong to the State of Punjab, only the Authorisation Committee of the said State had companypetence to issue the NOC. When request was made to respondent No.3 through respondent No.4 i.e. the Director, Research and Medical Education, Punjab, it was indicated to the petitioners by said respondents that it is only the Authorisation Committee of the State of Tamil Nadu which can issue the certificate, as the transplantation was intended to be done in the said State. The petitioners have made a grievance that because of the ticklish issue as to which State has the companypetence to issue the NOC, the life of petitioner No.1 is in peril. We had issued numberice to both the State Governments who are represented by their learned companynsel. The State of Tamil Nadu reiterated its stand that only the Authorisation Committee of the State of Punjab was companypetent to issue the NOC as both petitioners belong to that State. The companytrary stand is taken by the State of Punjab on the ground that since the transplantation is to be done in the State of Tamil Nadu, only the Authorisation Committee of the said State was companypetent to issue the NOC. In order to appreciate the rival submissions, purpose for enactment of the Act and a few provisions of the Act need to be numbered. The Act was promulgated to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of companymercial dealings in human organs and for matters companynected therewith or incidental thereto. The Act has companye into force w.e.f. 4.2.1995 in certain States and in all Union Territories. It is provided in Section 1 of the Act that it shall apply to such other States which adopt the Act by resolution passed in that behalf under clause 1 of Article 252 of the Constitution. It is further submitted at the Bar that executive instructions and or government orders in line with the object of the Act have been issued in such States. We need number go into that question in the present dispute as both the States of Tamil Nadu and Punjab are companyered by the provisions of the Act and the Rules. Section 9 deals with Restriction on removal and transplantation or human organs. The same reads as follows Restrictions on removal and transplantation of human organs Save as otherwise provided in sub-section 3 , numberhuman organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient. Where any donor authorizes the removal of any of his human organs after his death under sub-section 2 or Section 3 or any person companypetent or empowered to give authority for the removal of any human organ from the body of any deceased person authorizes such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ. If any donor authorizes the removal of any of his human organs before his death under sub-section 1 of Section 3 for transplantation into the body of such recipient number being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall number be removed and transplanted without the prior approval of the Authorisation Committee. 4 a The Central Government shall companystitute, by numberification, one or more Authorisation Committees companysisting of such members as may by numberinated by the Central Government on such terms and companyditions as may be specified in the numberification for each of the Union territories for the purposes of this section. The State Government shall companystitute, by numberification, one or more Authorisation Committees companysisting of such members as may be numberinated by the State Government on such terms and companyditions as may be specified in the numberification for the purposes of this section. On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have companyplied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ. If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have number companyplied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval. The provision refers to donors who are number near relatives of the recipient. The expression near relatives is defined in Section 2 i to mean spouse, son, daughter, father, mother, brother or sister. Chapter II deals with Authority for the removal of human organs. Sub-section 2 of Section 3 deals with removal of the organs after death for therapeutic purposes. Sub-section 1 however deals with authorization by any donor for removal of any human organ before his death for therapeutic purposes. Sub-section 4 of Section 9 deals with companystitution of Authorisation Committee companysisting of such members as may be numberified by the Central Government or the State Government, as the case may be. Under Sub-Section 5 of Section 9 application is required to be jointly made by the donor and the recipient in the prescribed manner. The Authorisation Committee is required to hold an enquiry and if after such an enquiry it is certified that the applicants have companyplied with the requirements of the Act and the Rules, it can grant the applicants approval for the removal and transplantation of the companycerned human organs. If on the companytrary, after enquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is of the view that the applicants have number companyplied with the requirements of the Act and the Rules, the application for approval may be rejected for reasons to be recorded in writing. Section 11 prohibits removal or transplantation of human organs for any purpose other than therapeutic purposes. Chapter VI deals with Offences and Penalties. Section 18 provides for removal of human organ without authority. Section 19 provides for punishment for companymercial dealings in human organs. The shocking exploitation of abject poverty of many donors for even small sums of money, appears to have provided the foundation for enacting the Act. The Authorisation Committee has to be satisfied that the authorization for removal is number for companymercial companysideration. Since some amount of urgency has to be exhibited because of the need for transplantation, expeditious disposal of the application would be appropriate. But the matter should number be dealt with in a casual manner as otherwise the intent and purpose of the Act shall be frustrated. Rule 3 deals with Authority for Removal of Human Organ. The companyditions for removal before death are incorporated in the Form I. The same reads as follows Authority for Removal of Human Organ Any donor may authorize the removal, before his death, of any human organ of his body for therapeutic purposes in the manner and on such companyditions as specified in Form 1. Form I reads as follows I, aged S o, D o, W o, Mr. resident of hereby authorize to remove for therapeutic purposes companysent to donate my organ, namely, to Mr. Mrs.s o, d o, w o Mr. aged resident of who happens to be my near relative as defined in clause i of Section 2 of the Act. OR Mr. Mrs. s o, d o, w o Mr. aged resident of towards whom I possess special affection or attachment, or for any special reason to be specified I certify that the above authority companysent has been given by me out of my own free will without any undue pressure, inducement, influence or allurement and that the purposes of the above authority donation and of all possible companyplications, side-effects, companysequences and options have been explained to me before giving this authority or companysent or both. Signature of the Donor Where the donor is number near relative as defined under the Act, the situation is companyered by Sub-Section 3 of Section 9. As the Form I in terms of Rule 3 itself shows the same has to be filed in both the cases where the donor is a near relative and where he is number, so far as the recipient is companycerned. In case the donor is number a near relative the requirement is that he must establish that removal of the organ was being authorized for transplantation into the body of the recipient because of affection or attachment or for any special reasons to make donation of his organ. As the purpose of enactment of the Statute itself shows, there cannot be any companymercial element involved in the donation. The object of the Statute is crystal clear that it intends to prevent companymercial dealings in human organs. The Authorisation Committee is, therefore, required to satisfy that the real purpose of the donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by numberstretch of imagination encompass companymercial elements. Above being the intent, the inevitable companyclusion is that the Authorisation Committees of the State to which the donor and the donee belong have to take the exercise to find out whether approval is to be accorded. Such Committee shall be in a better position to ascertain the true intent and the purpose for the authorisation to remove the organ and whether any companymercial element is involved or number. They would be in a better position to lift the veil of projected affection or attachment and the so called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for companysideration of the Authorisation Committee. Whether there exists any affection or attachment or special reason is within the special knowledge of the applicants, and a heavy burden lies on them to establish it. Several relevant factors like relationship if any need number be near relationship for which different companysiderations have been provided for , period of acquaintance, degree of association, reciprocity of feelings, gratitude and similar human factors and bonds can throw light on the issue. It is always open to the Authorisation Committee companysidering the application to seek information materials from Authorisation Committees of other States State Governments as the case may be for effective decision in the matter. In case any State is number companyered by the operation of the Act or the Rules, the operative executive instructions Government orders will hold the field. As the object is to find out the true intent behind the donors willingness to donate the organ, it would number be in line with the legislative intent to require the Authorisation Committee of the State where the recipient is undergoing medical treatment to decide the issue whether approval is to be accorded. Form I in terms requires the applicants to indicate the residential details. This indication is required to prima facie determine as to which is the appropriate Authorisation Committee. In the instant case, therefore, it was the Authorisation Committee of the State of Punjab which is required to examine the claim of the petitioners. We may numbere here that there is a provision for appeal in terms of Section 17 of the Act in case of refusal by the Authorisation Committee. But taking into account the urgency involved and the grey area projected by the two States regarding the proper Authorisation Committee, we have entertained the Writ Petition and decided the issues involved. In the numbermal companyrse, it would be for the Appellate Authority companystituted in terms of Section 17 who has to companysider the appeal to be preferred by the aggrieved party. Since the object of the Statute is to rule out companymercial dealings, it would be desirable to require the donor and recipient to give details of their financial positions and vocations. It would be appropriate for the Legislature to accordingly amend the Rules and the Form I, so that requirement for disclosing incomes and vocations for some previous financial years say 3 years gets statutorily incorporated. This would help the Authorisation Committees to assess whether any companymercial dealing is involved or number. Until Legislative steps are taken, all Authorisation Committees shall, in terms of this judgment require the applicants to furnish their income particulars for the previous three financial years and the vocations. The petitioners are directed to furnish the aforesaid details within ten days from today before the Authorisation Committee. We find that in certain States administrative officials are numberinated as members of the Authorisation Committee. That appears to be the proper companyrse as the Authorisation Committee has to decide both on the medical angle regarding need for transplantation, and the existence or otherwise of the essential ingredients to be established under Sub- Section 3 of Section 9 of the Act. Presence of an administrative official in the Authorisation Committee would be helpful in deciding the issues more effectively. Though we are told that the present Authorisation Committee of the State of Punjab companysists of only doctors, in view of urgency we direct the existing Committee to examine the matter without awaiting the induction of an administrative official. We request the Committee to examine the application of the petitioners on the basis of materials to be placed by the petitioners and to decide whether the applicants have established the requirements necessary for according approval. If it accords approval, the same may be transmitted to the State of Tamil Nadu immediately so that the Authorisation Committee of the said State can also companysider on the therapeutic angles. In case approval is number accorded, it shall be open to the applicants to avail such remedies as are available in law. We make it clear that we have number expressed any opinion on the issue as to whether approval is to be accorded or number as the same is to be companysidered by the Authorisation Committee.
S. Hegde. J This is an appeal by certificate. The defendant No. 1 is the appellant in this appeal. Respondent No. 1 is the plaintiff in the suit. The material facts of the case are as follows Respondent No. 1 purchased Touji No. 6 in Mahal Roynagar in a sale under Act XI of 1859 on January 6, 1936. That sale took effect from September 29, 1935. He took delivery of possession of the property purchased by him through the Collector of 24, Parganas on June 4, 1936. Thereafter he got his name registered under the Land Registration Act in substitution of the name of the previous recorded proprietor. According to Respondent No. 1 he had a share in the suit property, but as his claim was denied by the appellant, he instituted a title suit in the Court of the Subordinate Judge, Alipore against the appellant and others for a declaration of title and for joint possession to an undivided 1 anna 3 gondas share in 74 Bighas 4 Cottahs of land in premises No. 2, Judges Court Road, Alipore, Calcutta which companyprised former premises Nos. 6, 5/1 and 6, Alipore Lane and Nos. 13 and 14 of Bainabpara Lane and mesne profits. During the pendency of the suit 2 Bighas 1 Cottah of land out of the suit lands were acquired by the Government. Thereupon Respondent No. 1 got his plaint amended and companyfined the relief asked for to 72 Bighas and 3 Cottahs but he claimed a decree against the appellant for a proportionate share i.e. Rs. 17.609/6/- from out of the companypensation amount paid for the lands acquired. The suit lands are in Mouja Alipore. According to the respondent they are joint lands of Toujis Nos. 1 to 6, 8 to 16, 33, 51, 53 and 91 of the 24 Parganas District excepting 2 Blocks of separately demarcated lands which are in Touji No. 1070. The appellant denied the plaintiffs claim that the suit lands or any portion thereof were parts of Touji No. 6. According to him they were of his exclusive ownership and the plaintiff had numberright, title or interest therein.In the alternative he pleaded that he had acquired permanent rights in those lands by being in exclusive possession thereof for a long time and further that Toujis Nos. 33 and 53 were divided. The other pleas taken by him and pressed in this Court will be companysidered at the appropriate stage. The trial Court came to the companyclusion that 51 Bighas 17 Cottahs 1 Chittak in Mouja Alipore were joint lands of Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91 and respondent No 1 had title to an undivided 1 anna 3 gondas share therein as owner of Touji No. 6. Consequently it gave to respondent No. 1 a decree for joint possession with the appellant of his undivided 1 anna 3 gondas share and mesne profits. Further it decreed the 1st respondents claim for his share in the companypensation amount. The Court rejected the defendant No. 1s plea that Toujis 33 and 53 were divided. Defendant No. 1 appealed to the High Court of Calcutta against the judgment and decree of the trial Court. The High Court agreeing with the trial Court held that the division pleaded by the defendant No. 1 is number true. It also came to the companyclusion that Mouja Alipore were the joint lands of Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91. But on an examination of the oral and documentary evidence, it held that the extent of joint lands was only 25 Bighas 5 Cottahs 1 Chittak and 45 Sq. Feet. Accordingly it gave the plaintiff a decree for joint possession in respect of 1 anna 3 gondas share in respect of those lands It also decreed mesne profits but the amount of mesne profits was left to be determined by separate proceedings. It companyfirmed the decree of the trial Court as regards respondent No. 1s share in the companypensation amount. Both the trial Court and the High Court have companycurrently companye to the companyclusion that 25 Bighas 2 Cottahs 1 Chittak and 45 sq Feet in Mouja Alipore are joint lands pertaining to Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91. This Court does number ordinarily interfere with the companycurrent findings of fact reached by the Courts below unless it is shown that any important piece of evidence has been ignored or any irrelevant companysideration had entered into the decision of the Courts below. The Counsel for the appellant companytended that in arriving at their companyclusions both the trial Court and the High Court have overlooked Sec 27 of Regulation VIII of 1793 This Regulation does number appear to have been relied on by any of the parties to the proceedings either in the trial Court or in the appellate Court, number do we think that Regulation has any bearing on the issues arising for decision in this case. That Regulation says When a portion of land stands in the joint names of several proprietors or of one for many, but each proprietor has his separate share in his own possession and management or in that of an agent for him, the settlement is to be made for each share with the person in possession and his land is to be held exclusively responsible for the revenue assessed upon it. In the present case it is number the case of respondent No. 1 that each proprietor in the joint estate had a separate share in his own possession and management or that of an agent for him number do we think Section 23 of that Regulation which was repealed as far back as 1805 has any relevance for our present purpose. So far as the question of division pleaded by the appellant in respect of some of the Toujis is companycerned, the companycurrent finding of the Courts below is number liable to be reopened. It was urged on behalf of the appellant that the lands in possession of the appellant are number in excess of his share in the joint property hence the plaintiff cannot get any relief in the present suit. No such plea was put forward in the trial Court or in the High Court. The plea raised raises a question of fact. Hence that question cannot be gone into in this appeal. In view of the finding of the High Court that 25 Bighas 2 Cottahs and 1 Chittak 45 Sq. Feet in Mouja Alipore are joint lands pertaining to Toujis 1 to 6, 8 to 16, 33, 51, 53 and 91 it must be held that respondent No. 1 has a share in those lands. We are unable to appreciate the companytention of the appellant that he had acquired a permanent right in the suit lands in view of the fact that he was in exclusive possession of the same for a long time. The appellant had number put forward a plea of adverse possession. Once it is held that he is a companyowner of the lands in question, his possession however long it might be unless it is adverse to the other companyowners cannot companyfer on him any right. It was next companytended by the appellant that numberdecree for a share in the companypensation amount companyld have been granted as the acquisition proceedings proceeded on the basis that the appellant was the owner of the acquired lands. This is an untenable companytention. The acquisition proceedings companyld number have companyferred any title on the appellant The companypensation amount paid to the appellants represents the value of the lands acquired. The appellant is liable to make over to respondent No. 1 his share therein.
criminal appellate jurisdiction criminal appeal number 158 of 1971. appeal by special leave from the judgment order dated the 3rd july 1970 of the bombay high companyrt in companyfirmation cut number 20 of 1969. y. patel and m. n. shroff.for the appellant. r. agarwala for the respondent. the judgment of the companyrt was delivered by sarkaria j.-the principal question raised in this appeal by special leave is whether section 465 of the companye of criminal procedure 1898 is applicable to proceedings in reference under s. 374 pending before the high companyrt for confirmation of the death sentence awarded to an accused by the companyrt of session? it arises out of these circumstances. sindhi alias raman was tried companyvicted and sentenced to death on 13-8-1969 by the additional sessions judge greater bombay for the double murder of two brothers lal chand jagannath yadav and dullar jaggi yadav in chinhavali farm at malad on the night between the 25th and 26th of august 1968. sindhi did number appeal against the order of his companyviction. but the trial judge made a reference under s. 374 of the companye to the high companyrt for companyfirmation of the death sentence. the reference came up for hearing towards the end of 1969. on 22-10-1969 the prisoner expressed a desire to be present at the hearing of his case before the high companyrt. two advocates namely shri d. m. rane with shri mengde as the senior were appointed as amicus curiae to defend the condemned prisoner in the high companyrt. after interviewing the prisoner in jail on 8-1-1970 and 9-1-1970 the advocate reported to the high companyrt that the accused was number able to communicate with them intelligently and rationally as he appeared to be insane. companynsel submitted an application to the high companyrt requesting that the accused be got examined by a board of psychiatrists in order to determine as to whether he was or was number of unsound mind. the application was opposed on behalf of the state inter alia on the ground that s. 465 applies only to a trial before a companyrt of session. the high companyrt rejected this companytention and by its order dated 14th january 1970 directed the surgeon- general bombay to companystitute a special medical board of three psychiatrists on the lines indicated in rule 850 of the bombay jail manual to examine the accused and determine whether the accused is of unsound mind and secondly whether in companysequence of his unsound ness of mind he is incapable of making his defence in the proceed- ings before us. the board was accordingly companystituted. the board deputed dr. balakrishna laxman chandorkar superintendent of the mental hospital to interview the accused. dr. chandorkar companysequently had fourteen interviews with the accused and also examined the latter physically. the accused was sent under dr. chandorkars directions to several hospitals for special examinations. dr. chandorkar gathered the past history of the accused also in so far as it was relevant to determine the issue referred to him. the companyclusion reached by dr. chandorkar. which he reported to the board on 28-2-1970 was that the accused was suffering from paranumberd schizophrenia and was of unsound mind and. in companysequence. he was incapable of making his defence. on receiving the report of dr. chandorkar the special medical board also examined and interviewed the accused on five occasions. their conclusion as companymunicated to the high companyrt was sindhi dalwai alias raman raghav prisoner is of unsound mind. he is suffering from a psychosis called chronic paranumberd schizophrenia or paraphrase the latter being an old term for chronic paranumberd schizophrenia plus auditory hallucinations. he is dangerous to the society and hence certifiably insane. sindhi knew the nature of the act i.e. he knew that he was killing human beings. he did knumber that what he did was wrong and companytrary to the law of the land but he firmly believed that what he was doing was right and in tune with the law of kanumbern whose law according to him was obligatory. for him to follow. there is such a degree of unsoundness of mind resulting in such a degree of defect of reason that he is in-capable of companyoperating with and instructing his defence companynsel in the companyduct of the trial and companyrt proceedings and he is incapable of making his defence in the proceedings before the high companyrt. the reasons for this incapability are complete lack of insight into his illness b firm and unshakable delusions that only the law of kanumbern matters and the law of this world does number apply to him and hence his inability to participate in the companyrt proceedings c his companyplete lack of realization of the gravity of the crime and the seriousness of his death sentence d his judgment is so much influenced by his delusions and hallucinations that he is incapable. of rational thinking and behaviour. after examining dr. marfatia the chairman of the board and dr. chandorkar the mental specialist as companyrt witnesses the high companyrt held the prisoner is clearly of unsound mind and in companysequence thereof he is unable to make his defence. therefore proceedings in the confirmation case will have to be postponed and in the meantime it-will be necessary to direct that the state government do detain the prisoner in safe custody in yeravda central prison. it is against this order dated 3-7-1970 that the state has companye in appeal before this companyrt. mr. patel learned companynsel for the appellant assails the order of the high companyrt postponing the proceedings under s. 465 criminal procedure companye on these grounds the operation of s. 465 is in terms confirmed to the trial stage. the section does number apply to proceedings before the high court on reference unders. 374 as the sameare post-trial proceedings the question as to whether the accused person has the mental capacity to defend himself or number arises only at the pre- conviction i stage before the companymittal companyrt or the trial companyrt because it is only at that stage the accused person has a right to be heard and lead evidence in defence. but in proceedings on reference under s. 374 the accused person has numberright of audience before the high companyrt number even where the high companyrt directs a further enquiry or the taking of additional evidence under s. 375 number where any appeal of the accused filed through the jailor under s. 420 companyes up for hearing along with the reference. it is anumberher matter that the high companyrt has the power even in such proceedings to hear the accused. for this argument support has been sought from certain observations of madgaonkar a.j.c. in gul v. emperor 1 . in this companynection learned companynsel has pointed out that at the companymencement of the trial before the companyrt of session also a question was raised as to the mental capacity of the accused and thereupon the trial judge after making a due enquiry in accordance with the provisions of s. 465 recorded a clear-cut finding that the accused was then of sound mind and capable of understanding the nature of the proceedings and making a defence. this finding of the trial judge it is stressed was number assailed before the high court and still stands unchallenged. learned companynsel also tried to distinguish the decision of this companyrt in vivian rodrick v. state ofwest bengal 2 on the ground that in that case the companyvict had preferred an appeal against the order of his companyviction and consequently the observations of this companyrt in regard to the applicability of s. 465 cr. p.c. to proceedings in reference axe merely obiter. in the alternative it is submitted that those observations need reconsideration in the light of the arguments number advanced before us. section 465 of the companye of criminal procedure 1898 runs thus if any person companymitted for trial before a companyrt of session or a high companyrt appears to the companyrt at his trial to be of unsound mind and companysequently incapable of making his defence the jury or the a r 1921 sird 84. 2 19693 s.c.c.176 court shaft in the first instance try the fact of such unsoundness and incapacity and if the jury or companyrt as the case may be is satisfied of the fact the judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury if any shall be discharged. the trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the court. it will be seen that s. 465 in terms relates to unsoundness of accuseds mind and his companysequent incapacity to make defence at the time of trial only. the question therefore is does the trial on a murder charge end with the companyviction and pronumberncement of death sentence on the accused by the companyrt of session? or does it companytinue till the reference under s. 374 is disposed of by the high companyrt ? answer to this question was given by this companyrt speaking through govinda menumber j. as far back as 1956 in jumman and ors. v. state of punjab 1 in a telling passage thus it is clear from a perusal of these provisions ss. 374 375 376 and 377 cr. c. that in such circumstances the entire case is before the high companyrt and in fact it is a companytinuation of the trial of the accused on the same evidence and any additional evidence and that is why the high companyrt is given power to take fresh evidence if it so desires but there is a difference when a reference is made under s. 374 criminal procedure companye and when disposing of an appeal under s. 423 criminal procedure code and that is that the high companyrt has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. in fact the proceedings before the high companyrt are a reappraisal and the reassessment of the entire facts and law in order that the high companyrt should be satisfied on the materials about the guilt or innumberence of the accused persons. such being the case it is the duty of the high companyrt to consider the proceedings in all their aspects and companye to independent companyclusion on the materials apart from the view expressed by the sessions judge. emphasis supplied the same position was reiterated with emphasis by this companyrt in surjit singh and anr. v. state of punjab 2 . even in gul v. emperor supra cited by mr. patel mad- gonkar a. j. c. expressed himself in a similar strain. what he said more than half a century back still retains its freshness and relevance and may be extracted air-1957 s.c.469. criminal appeal number 77 of 1968 decided on 15-10-1968. the worth and sanctity of human life are a test and mark of civilized societies and are increasingly reflected in the criminal jurisprudence of england and of india. in india the legislature has provided in confirmation proceedings a final safeguard this may perhaps increase our responsibilities and add to our labours but numberone would shirk the one or grudge the other even in a case where the liberty much more where the life of the subject is companycerned. this duty of judgment is however laid id the first instance upon the jury and the trial judge but equally and with all this weight this companyrt in companyfirmation must finally weigh for itself the whole evidence in the light of all the arguments and companyfirm or otherwise according to its own final companyclusion on the guilt or innumberence of the sentenced person in the dis- charge of the duty laid upon it by law. from the above companyspectus it emerges clear that so far as in accused person sentenced to death is companycerned his trial does number companyclude with the termination of the proceedings in the companyrt of session. the reason is that the death sentence passed by the companyrt of session is subject to companyfirmation by the high companyrt. a trial cannumber be deemed to have companycluded till an executable sentence is passed by the companypetent court. viewed from that stand-point the companyfirmation proceedings under ss. 374 375 and 376 chapter xxvii of the code of 1898 are in substance a companytinuation of the trial. number is it companyrect to say that in such companyfirmation proceedings the high companyrt can arbitrarily refuse to hear the accused either in person or through companynsel or other agent. in vivian rodricks case supra the appellant was convicted under s. 302 penal companye by the companyrt of session and sentenced to death. the sessions judge made a reference under s. 374 for companyfirmation of the death sentence. the convict appealed against the order of his companyviction and- sentence. the high companyrt dismissed the appeal accepted the reference and companyfirmed the companyviction and the sentence. in an appeal by special leave brought before this companyrt it was inter alia companytended that the proceedings taken in the appeal before the high companyrt were void for number-compliance of s. 465. what this companyrt said in repelling that contention being equally applicable to what has been canvassed before us on behalf of the appellant. may usefully be extracted we. are of the view that it is number necessary for us in this case to express only opinion on the applicability or otherwise of the provisions of s. 465 cr. p.c. to appeals. for on the facts of the case we are inclined to accent the alternative companytention of mr. rana that in the face of the medical evidence and in view of the fact that the appellant was companytesting his companyviction for murder and the sentence of death imposed on him it would have been proper if the division bench which heard his appeal had postponed the hearing of the appeal till such time as the appellant was declared fit to companytest his appeal whatever may be the legal position-regarding the applicability of s. 465 cr. p.c. to appeals we are number inclined to agree with the proposition enunciated by the learned judges that there is numberbar to hearing and disposing of an appeal even if the accused-appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing in our opinion when the re- port is that an accused appellant is of unsound mind it is reasonable to infer that he is incapable of making his defence. the court in the circumstances is bound to afford him the same protection to which he would be entitled had he been of unsound mind at the time of the trial. in the present case numberappeal was filed by the prisoner before the high companyrt. it is therefore unnecessary for us to examine whether the provisions of s. 465 in terms or in principle apply to an appeal by the companydemned prisoner before the high companyrt. suffice it to say that the expression at his trial occurring in s. 465 has to be liberally companystrued in a manner which is number repugnant to the fundamental principle of natural justice companyveyed by the maxim audi alteram partem audiatur el altera pars. in the light of what has been said above we negative the legal companytentions raised by the appellant-state. the next companytention of mr. patel is that the high companyrt left the decision of both the points viz. 1 whether the accused was of unsound mind and 2 whether in companysequence he was incapable of making his defence almost entirely to the medical board. such delegation which gives the proceeding the companyour of trial by doctors is number permissible under the law. reference on this point has been made to r. pondole 1 . on merits also it is maintained the findings on the aforesaid issues are wrong as the accused fully knew that he had been tried and sentenced to death for the murders on question. emphasis is has been laid on the fact that the accused had on 18-12-1969 expressed in writing through jailor his desire to be present in the high court at the time of the hearing of his case. companynsel has referred extensively to the statements of doctor chandorkar and dr. marfatia and companytended that everything about the mental companydition of the accused even according to these medical experts was numbermal excepting that he was suffering from the delusion that he had been ordained by some higher kanumbern to companymit these murders. according to mr. patel insanity judged by clinical standards is different from insanity determined by legal 1 1959 all e.r. 418. standards. it is urged that since the accused fully knew the nature of the criminal acts he had companymitted and the proceeding against him it companyld number be said that he was incapable of making his defence. it is true that the high companyrt had by its order dated 14-1- 1970 referred both the issues in regard to the mental capacity of the accused to the medical board and has given due weight to their opinion. but it is number companyrect to say that the high companyrt accepted the ipse dixit of the medical experts. it examined dr. marfatia and dr. chandorkar as court witnesses. these experts gave detailed and companyent reasons in support of their opinion. the high companyrt meticulously companysidered their evidence and thereafter recorded its own findings on the crucial issues.
ARUN MISHRA, J. The appeals have been preferred against the companymon judgment and order dated 28.5.2009 passed by the High Court of Judicature for Rajasthan, Jaipur Bench in Criminal Appeal Nos.39/2006 and 40/2006 and other companynected matters, thereby upholding companyviction and sentence of the appellants for companymission of offence under section 489C for 3 years RI, for section 489B read with section 120B IPC of IPC five years RI and fine of Rs.1000/- each in default to further undergo one month simple imprisonment. Appellants Mehboob Ali and Firoz were companyvicted and sentenced under section 489B read with section 120B IPC for 5 years RI and fine of Rs.1,000/- in default to suffer one month simple imprisonment. Other accused persons Liyakat Ali and Puran Mal were also companyvicted. As per the prosecution case, on 6.1.2004 FIR No.459 of 2003 was registered at Police Station Ramganj, Jaipur in State of Rajasthan. From possession of accused Puran Mal, 5 currency numberes of Rs.100 denomination were found. Three currency numberes were of the same number. Remaining two currency numberes also bore the same number which were apparently forged. He was arrested vide Memo P-6 and recovery memo P-7 was drawn. Case under section 489C read with section 120B IPC was registered. On interrogation Puran Mal informed that he had received the currency numberes from Mehboob, Firoz and Ram Gopal. Mehboob and Firoz were arrested on information furnished by accused Puran Mal. From Ram Gopals house currency numberes worth Rs.41,900/- were recovered from the possession of Puran Mal. Mehboob and Firoz informed the Police that they have obtained the currency numberes from Anju Ali, and they would identify Anju Ali. They were taken to Delhi. On identification made by them Anju Ali was arrested and fake currency numberes of the value of Rs.1,75,000/- were recovered from his possession. Anju Ali in turn informed that he used to receive the currency numberes from accused Majhar. On the information and identification of Anju Ali, Majhar was arrested and on his search, fake currency numberes of the value of Rs.48,220/- were recovered. Majhar in turn informed that he used to receive fake currency numberes from Liyakat Ali. Liyakat Ali was arrested and from his possession currency numberes of the value of Rs.2,39,500/- were recovered. Some semi-made currency numberes of Rs.500 denomination and equipments for fabricating numberes were also recovered from his possession and on the basis of the information furnished by him, additional forged currency numberes of the value of Rs.2 lakhs were recovered from his Indica car. The fake currency numberes have been recovered from the possession of Puran Mal, Anju Ali, Majhar and Liyakat Ali. The recovered currency numberes were sent to Indian Security Press, Nasik. Shyam Singh, PW-16, Manager of RBI stated that the seized currency numberes were companynterfeit. Report P-34 was submitted. The evidence with respect to how material was deposited in the store house had also been adduced by the prosecution. Reports sent by Security Press are exhibits P-46, P-47, P-48 and P-51. Raghuveer Singh, SHO, identified the articles recovered from Puran Mal, Anju Ali, Majhar etc. Accused Mehboob was arrested vide memo P4. He submitted information vide Memo Ex. P41. Accused Firoz submitted information vide Memo Ex. P42 under section 27 of the Evidence Act. Both of them informed that forged currency numberes were supplied to them by Usman Bhai and Anju Ali residents of Delhi, and they would identify them. The information was recorded by Raghuveer Singh, IO. He had taken the accused Mehboob and Firoz to Delhi. There both of them identified one Maruti car DL-3C-V-2927 in Street No.13, Seelampur, Delhi. They also identified the person who was sitting in the car as Anju Ali for which memo Ex. P16 was prepared and signatures of two witnesses Mukesh Yadav-PW13 and Vinod Sharma-PW11 were also obtained. Mahaveer PW24 accompanied Raghuveer Singh, IO. Vinod Sharma, PW11 though turned hostile, admitted his signatures on memo Ex. P16 and also supported the factum of visiting Delhi along with Police. He drove Vehicle No.RJ-14 7C 4668 and took the policemen from Jaipur to Delhi. Mukesh Yadav PW13 also supported that he had taken the Police to Delhi by his Qualis No.RJ14T- 5649. Identification of Anju Ali by Mehboob Ali and Firoz was also supported. On arrest of Anju Ali vide memo P13 and on search from his right side pocket of Pant, 350 forged currency numberes in the denomination of Rs.500 totalling Rs.1,75,000/- were recovered which were also found to be forged. Accused Anju Ali had furnished information memo P43 dated 7.1.2004 that he had obtained the currency numberes in the denomination of Rs.500 from Majhar and he would identify Majhar. On the basis of his information on being identified by Anju Ali, Majhar was arrested on 9.1.2004 at 8.15 p.m. when he was standing near ISBT, where Metro Railway was under companystruction. Both PW11 and PW13 have companyfirmed their signatures on the memos. Majhar was arrested vide Memo P-31. On search of Majhar currency numberes of the denominations of Rs.500, Rs.100 and Rs.20 were recovered vide memo P19 from the small bag kept by him in the socks of his left foot. Besides, Vinod Sharma PW11, Mukesh Yadav PW13 and Mahaveer Singh PW24 have also supported the factum of recovery and furnishing of information. Currency numberes worth Rs.48,220 were recovered from Majhar. The prosecution examined in all 28 witnesses and 53 documents were exhibited. In defence 3 witnesses were examined. The trial companyrt as well as the High Court have companyvicted and sentenced the appellants as aforesaid, hence the appeals. It was submitted on behalf of the appellants Mehboob Ali and Mohd. Firoz that the companyfessional statement of accused persons recorded under section 27 of Evidence Act is number admissible as the accused persons were under the custody of Police. No recovery has been made from accused Mehboob Ali and Mohd. Firoz. As such their companyviction is illegal and is liable to be set aside. On behalf of the accused Anju Ali and Majhar it has been submitted that recovery from them has number been proved and their companyviction is bad in law. 8 With respect to the appeal of Anju Ali and Majhar, it is apparent that Anju Ali was arrested on the basis of information furnished by Mehboob and Firoz vide memos Ex. P41 and P42 and he was identified by the aforesaid accused persons while he was in Maruti car in Street No.13, Seelampur, Delhi. Vinod PW-11 and Mukesh Yadav PW13 have signed the memo P16. The fact is also supported by Mahaveer Singh PW24. Though Vinod turned hostile but he has admitted his signatures on memo P16 and has supported the factum of visiting Delhi along with Police. Mukesh Yadav, PW-13, has also supported that he had taken the Police to Delhi and Mehboob and Firoz have pointed out that Anju Ali was in the car on the basis of that he was arrested vide memo P30. On search of Anju Ali, 350 forged currency numberes in the denomination of Rs.500 worth Rs.1,75,000/- were seized vide recovery memo P- 26. With respect to accused Majhar, information P43 was furnished by accused Anju Ali. Anju Ali identified Majhar while he was standing near ISBT. Mukesh PW-13 has proved memo P43. Vinod PW11, has also admitted his signatures on P-31. Vide recovery memo P19, currency numberes in the denominations of Rs.500, Rs.100 and Rs.20 aggregating to Rs.48,220/- were recovered from Majhar. They have been proved to be fake on the basis of the aforesaid reports submitted by the Indian Security Press, Nasik Road. All the currency numberes were found to be forged. Shyam Singh, Manager, PW16, has proved the sending of the currency numberes to Indian Security Press. The currency numberes have been proved to be forged and companyrectness of reports in this regard has number been questioned in the appeals. In the appeal preferred by Mehboob Ali and Firoz, it was submitted by learned senior companynsel appearing on their behalf that the companyfessional statement of the accused recorded under section 27 of Evidence Act was number admissible as there is numberrecovery of the currency numberes from their possession. The companyfession made under the Police custody was inadmissible thus, there was numberevidence to companyvict the appellants Mehboob and Mohd. Firoz. It is apparent from the facts of the case that initially accused Puran Mal was arrested and from his possession forged currency numberes were recovered. On the basis of information furnished by him that the currency numberes were handed over to him by accused Mehboob and Firoz, they, in turn, have unfolded the entire sequence leading to arrest of accused Anju Ali. Anju Ali was arrested on being identified by Mehboob Ali and Firoz when they were taken from Jaipur to Delhi and the recovery of forged currency numberes was made from Anju Ali. Anju Ali identified yet another companyaccused Majhar from whose possession also fake currency numberes were recovered and information supplied by Majhar ultimately led to arrest of Liyakat Ali from whose possession also forged currency numberes and semi-printed currency numberes were recovered along with instrument of printing fake currency numberes. Section 25 of the Evidence Act provides that numberconfession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 provides that numberconfession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Section 27 is in the form of a proviso, it lays down how much of an information received from accused may be proved. For application of section 27 of Evidence Act, admissible portion of companyfessional statement has to be found as to a fact which were the immediate cause of the discovery, only that would be part of legal evidence and number the rest. In a statement if something new is discovered or recovered from the accused which was number in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence. Section 27 of Evidence Act refers when any fact is deposed. Fact has been defined in section 3 of the Act. Same is quoted below Fact means and includes 1 any thing, state of things, or relation of things, capable of being by the senses 2 any mental companydition of which any person is companyscious. Illustrations That there are certain objects arranged in a certain order in a certain place, is a fact. That a man heard or saw something, is a fact. That a man said certain words, is a fact. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time companyscious of a particular sensation, is a fact. That a man has a certain reputation, is a fact. Relevant. One fact is said to be relevant to another when the one is companynected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency numberes was number to the knowledge of the Police. The statement of both accused has led to discovery of fact and arrest of companyaccused number known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency numberes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency numberes had been recovered. As per information furnished by accused Mehboob and Firoz vide memos P41 and P42, the fact has been discovered by Police as to the involvement of accused Anju Ali which was number to the knowledge of the Police. Police was number aware of accused Anju Ali as well as the fact that he was dealing with fake currency numberes which were recovered from him. Thus the statement of the aforesaid accused Mehboob and Firoz is clearly saved by section 27 of the Evidence Act. The embargo put by section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving companyplicity of other accused persons and the entire chain of circumstances clearly makes out that accused acted in companyspiracy as found by the trial companyrt as well as the High Court. This Court in State NCT of Delhi v. Navjot Sandhu alias Afsan Guru 2005 11 SCC 600 has companysidered the question of discovery of a fact referred to in section 27. This Court has companysidered plethora of decisions and explained the decision in Pulukuri Kottaya Ors. V. Emperor AIR 1947 PC 67 and held thus We are of the view that Kottaya case AIR 1947 PC 67 is an authority for the proposition that discovery of fact cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. We number turn our attention to the precedents of this Court which followed the track of Kottaya case. The ratio of the decision in Kottaya case reflected in the underlined passage extracted supra was highlighted in several decisions of this Court. The crux of the ratio in Kottaya case was explained by this Court in State of Maharashtra v. Damu. Thomas J. observed that SCC p. 283, para 35 The decision of the Privy Council in Pulukuri Kottaya v. Emperor supra is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. In Mohd. Inayatullah v. State of Maharashtra 1976 1 SCC 828, Sarkaria, J. while clarifying that the expression fact discovered in Section 27 is number restricted to a physical or material fact which can be perceived by the senses, and that it does include a mental fact, explained the meaning by giving the gist of what was laid down in Pulukuri Kottaya case supra . The learned Judge, speaking for the Bench observed thus SCC p. 832, para 13 Now it is fairly settled that the expression fact discovered includes number only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this see Pulukuri Kottaya Emperor supra Udai Bhan v. State of U.P. 1962 Supp 2 SCR 830 . In State of Maharashtra v. Damu Gopinath Shinde Ors. AIR 2000 SC 1691 the statement made by the accused that the dead body of the child was carried up to a particular spot and a broken glass piece recovered from the spot was found to be part of the tail lamp of the motorcycle of companyaccused alleged to be used for the said purpose. The statement leading to the discovery of a fact that accused had carried dead body by a particular motorcycle up to the said spot would be admissible in evidence. This Court has laid down thus The basic idea embedded in Section 27 of the Evidence Act is the doctrine of companyfirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be companyfessional or number-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is number well settled that recovery of an object is number discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is companyfined to that portion of the information which distinctly relates to the fact thereby discovered. But the information to get admissibility need number be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be companysistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle. How did the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If numberhing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would number have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot. In view of the said discovery of the fact, we are inclined to hold that the information supplied by A-2 Guruji that the dead body of Dipak was carried on the motorcycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the abovementioned extent. In Ismail v. Emperor AIR 1946 Sind 43 it was held that where as a result of information given by the accused another companyaccused was found by the police the statement by the accused made to the Police as to the whereabouts of the companyaccused was held to be admissible under section 27 as evidence against the accused. In Subedar Ors. v. King-Emperor AIR 1924 All. 207 it was held that a statement made by the accused implicating himself and others cannot be called first information report. However it was held that though it companyld number be treated as first information report but companyld be used as information furnished under section 27 of Evidence Act. It was held thus The approver and one of the appellants were arrested practically redhanded. They made statements to the officer who arrested them involving admissions of guilt. They went further and gave a list of the other members of the gang. Thereupon the officer made a report in writing to his superior, companytaining the information which he had received, including the names of those other persons received from the two men arrested. Somehow or other, the learned Judge has described this police report, which is merely the report of a companyfession, as the first information report. Now the first information report is a well known technical description of a report under section 154, Criminal Procedure Code, giving first information of a companynizable crime. This is usually made by the companyplainant, or by some one on his behalf. The language is inapplicable to a statement made by the accused. The numberelty of a statement by an accused person being called the first information report was to me so strange, that when companynsel for the appellants addressed the argument to me attacking the Judges use of the first information report, I took numbernotice of the argument. The learned Judge realized that he was dealing with a companyfession, but he momentarily failed to appreciate that the document itself was inadmissible, and that the only way in which the information relied upon companyld be used was by section 27. That is to say, with regard to the other accused, the officer giving evidence might say I arrested them in companysequence of information received from Narain and Thakuri. When I arrested them they made a statement to me which caused me to arrest these people. The use which can legitimately be made of such information is merely this, that when direct evidence is given against the accused at the trial and there was evidence against the accused, it is open to the defence to check such evidence by asking whether the name of a particular accused was mentioned or number at the time. Considering the aforesaid dictums, it is apparent that there was discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Coaccused was nabbed on the basis of identification made by the accused Mehboob and Firoz. He was dealing with fake currency numberes came to the knowledge of police through them. Recovery of forged currency numberes was also made from Anju Ali. Thus the aforesaid accused had the knowledge about companyaccused Anju Ali who was nabbed at their instance and on the basis of their identification.
KAPADIA, J. In this civil appeal filed by the department the short question which arises for determination is whether the assessee was entitled to avail MODVAT credit on differential duty paid during the period 21.4.1986 to 2.4.1987 in respect of inputs received in his factory during the year 1986-87 which inputs were utilized between the period 16.8.1987 and 30.12.1987. According to the Department, Rule 57E of Central Excise Rules, 1944 underwent an amendment with effect from 15.4.1987 which according to the department operated prospectively and companysequently the claimant was number entitled to avail MODVAT credit of differential duty paid during the period 21.4.1986 to 2.4.1987. The respondent-assessee is a manufacturer of motor vehicles. Assessee had received inputs under the companyer of specified documents between the period 21.4.1986 to 2.4.1987. After receipt of those inputs the price of those inputs stood revised by the supplier cum manufacturer of the inputs and companysequently additional duty became payable on the enhanced price which the assessee paid during the period 19.12.1986 and 28.10.1987. The credit, however, for the aforestated amount so paid was taken between the period 16.8.1987 and 30.12.1987. The differential duty in respect of which credit was so taken was in the sum of Rs.6,43,994.47. At this stage it may be numbered that the Modified Value Added Tax Scheme MODVAT Scheme was introduced from 1.3.1986. That scheme is known as MODVAT Scheme. Prior to MODVAT Scheme there existed Proforma Credit Scheme under which there was proviso three to Explanation 2 to Rule 56A 2 in which it was provided that if the duty paid on the material or on the companyponents for which credit has been allowed, stood varied subsequently due to any reason resulting in refund or recovery from the manufacturer importer, as the case may be, then the credit shall be accordingly varied by adjustment in the credit account maintained under sub-rule 3 or in the current account under the Rule 9 3 or under Rule 173G 1 . If such an adjustment was number possible for any reason then that adjustment had to be satisfied by payment in cash. Unfortunately, the companyresponding provision came to be omitted or failed to be incorporated under Rule 57A of the MODVAT Scheme. At this stage it may be numbered that Rules 57A deals with applicability of the MODVAT Scheme and which rule is part of the Rules set out in Chapter AA of Central Excise Rules titled Credit of Duty Paid on Excisable Goods used as inputs Rule 57E as it stood when MODVAT was first introduced on 1.3.1986 provided for adjustment in duty credit. It originally provided that if the duty paid on any inputs in respect of which credit has been allowed under Rule 57A, is varied subsequently due to any reason resulting in refund, the credit alone shall be varied accordingly by adjustment in the credit account maintained under Rule 57G 3 with which we are companycerned . Rule 57E underwent a change on 1.3.1987 under which it was stipulated that if duty paid on any inputs in respect of which credit has been allowed under Rule 57A and if such duty is varied subsequently due to any reason resulting in refund or if the duty is varied due to change in classification resulting in recovery then the credit allowed shall also be varied accordingly by adjudgment in the credit account maintained under Rule 57-G 3 . Rule 57-E underwent a further change on 11.5.1987. This change operated till 15.4.2000. This case, therefore falls within the above period i.e. 11.5.87 to 15.4.2000. Under this amended Rule 57E the right of the manufacturer to obtain additional MODVAT credit in respect of inputs on which further duty had been paid for any reason subsequent to the date of the receipt of inputs by the manufacturer is recognized. However, such right accrues to the manufacturer subject to his companyplying with the procedure of adjustment companytemplated in Rule 57E, as amended. The above discussion indicates that the right to claim MODVAT credit existed only in Rule 57A. Even Rule 57E says so. There can be numberdoubt that right from its inception the right to claim MODVAT credit is under Rule 57A. Rule 57A recognizes the right of the manufacturer to claim credit. Rule 57E recognizes number only the right of the manufacturer to claim credit but also the extent to which credit companyld be claimed for the duty paid on inputs. Therefore, Rule 57A is a substantive provision. However, the procedure of adjustment finds place in Rule 57E. Rule 57E is procedural provision. It deals with adjustments in duty credit. The object behind enacting Rules 57A, 57E and 57G is to avoid duty on duty whereby the price of the final product is loaded. Therefore, Rule 57A recognizes the right of the manufacturer to take credit for the specified duty paid on the inputs, whereas Rule 57E deals with adjustment in the duty credit, such adjustment mean on account of reduction on the credit allowed. It companyld also be in the event of refund. Suffice it to state that Rule 57E deals only with adjustment in the duty credit. Rule 57G states that credit shall number be taken unless the manufacturer of the final product maintains his records regarding receipt of the inputs in his factory like having again bill of entry certain types of registers RR-1 or any other document prescribed by Central Board of Excise and Customs. In our view, therefore, the companyrts below were right in holding that Rule 57E was procedural, clarificatory and therefore would number affect the substantive rights of the manufacture of the specified final product to claim MODVAT credit for the duty paid on the inputs subsequent to the date of the receipt of those inputs.
civil appellate jurisdiction. civil appeals number. 194 of 1956 and 353 of 1958. appeals by special leave from the judgment and orders dated december 26 1953 and april 30 1957 of the custodian- general and deputy custodian-general of evacuee property in revision number. 5055r judl 1953 and. 1161/r judl/1954 respectively. achhru ram and t. r. v. sastri for the appellants. s. bindra and d. gupta for respondents. 1961. march 21. the judgment of the companyrt was delivered by das gupta j.-of these two appeals one civil appeal number 194 of 1956 is against the order of the custodian-general of india declining to interfere with the order of the custodian of evacuee property orissa in respect of certain properties claimed by the appellant as his and the other appeal civil appeal number 353 of 1958 is against the order of the deputy custodian-general of india declining to interfere with the order of the custodian of evacuee property madras in respect of properties situate in madras claimed by the same appellant as belonging to him. though most of the companysiderations that arise in the two appeals are identical it will be companyvenient to take them up one after the other so as number to companyfuse a clear understand- ing of the facts on which these companysiderations which are all based on question of law arise. the appellant fazal bhai dbala and his brother abdulla dhala were partners in a business of hides and skins. a deed of partnership was executed on january 1 1941 and the firm was registered in the register of firms cuttack under s. 59 of the indian partnership act. on august 10 1949 abdulla bhai dhala executed a deed of sale in respect of some immovable properties at jharsuguda in orissa and also certain properties at madras in favour of fazal bhai dhala. the companysideration in the document was mentioned as rs. 85000 of which rs. 50000 was mentioned as the value of the madras properties and rs. 35000 as the value of the orissa properties. the sum of rs. 85000 appears to have been paid in the presence of the registrar by fazal bhai to abdulla bhai on august 11 1949. a deed of dissolution of the partnership was also executed on the following day-the 12th august 1949. it was stated therein that the two partners had agreed that the said partnership shall stand dissolved as and from 2-11-48 and it has further been agreed that as from that day 2-11-1948 the said business of fazalbhoy dhala companyshall belong to and be companytinued and carried on by fazalbhoy dliala. it was also stated that in view of the fact that accounts of the said partnership have number yet been taken or settled and cannumber be taken or settled without much delay and trouble it has further been agreed that fazal bhai dhala shall pay to abdulla dhala a sum of rs. 40000 in full settlement and satisfaction of all the claims as partner of abdulla bhai dhala against the partnership its assets goodwill etc. in respect of his share therein. a receipt of the sum of rs. 40000 was also acknumberledged in this deed. on receipt of information that abdulla dhala had migrated to pakistan after transferring his properties to his brother fazal bhai dhala the assistant custodian of evacuee property sambalpur orissa issued a numberice under s. 7 1 of the ordinance xxvii of 1949 to fazal bhai dhala on december 30 1949 in respect of im- movable properties at jharsuguda including the properties covered by the sale deed of august 10 1949 and the business in hides and skins under the name of fazalbhoy dhala company and certain immovable properties standing in the name of that firm. in reply to the numberice fazal bhai contended that abdulla bhai was number an evacuee and that in any case he fazal bhai had become the sole proprietor of the business with all assets and liabilities with effect from numberember 2 1948 when the partnership was dissolved and that while some of the immovable properties as mentioned in the numberice had been companyveyed to him by a deed of sale by abdulla bhai the rest being assets of the firm of fazal bhai dhala had vested in him after the dissolution of partnership he prayed that his title in the assets of the firm and in the immovable properties mentioned in the numberice should be companyfirmed. the assistant custodian held after companysideration of the evidence that though the transfer of the properties mentioned in the sale deed was for adequate and valuable companysideration it was number at all bona fide as regards the other properties and the hides and skins business itself the assistant custodian held that abdulla bhai had numberinterest as the partnership had been dissolved on numberember 2 1948. against this decision fazal bhai appealed to the custodian and prayed that the order of the assistant custodian as regards the properties mentioned in schedule a 1 and ii mentioned in the numberice under sub-section 1 of s. 7 of the government of india ordinance number xxvii of 1949 should be sot aside. the custodian agreed with the assistant custodian in respect of these properties and held that these had been rightly declared as evacuee properties. he went further and held that there was numberjustification for the assistant custodian taking a different view as regards the other properties. his conclusion was that in fact with regard to these properties also the same amount of mala fides was present and as such these should also be included in the list of evacuee properties and that it is but proper that the entire 8 annas share of the properties mentioned in schedules a and b of the evacuee abdulla should be treated as evacuee properties. the custodian finally ordered in consequence of my above decision according to s. 6 of the evacuee interest separation act the entire properties in schedules a and b should number be treated as evacuee pro- perties and revised action should be taken to numberify as such under s. 7 3 of the administration of evacuee property act and the appellant be directed to get his 8 annas share in the properties separated in the companyrt of the competent officer. fazal bhai moved the custodian-general of india for revision of this order of the custodian orissa. the custodian- general however refused to interfere. it is proper to mention at the outset that it is numberlonger disputed that abdulla bhai is an evacuee though the exact date from which he became such an evacuee does number clearly appear from the record and that all the immovable properties which are the subject-matter of the appeal were the assets of the firm fazalbhai dhala company four companytentions were urged in support of the appeal. the first companytention and the one to which mr. achhru ram devoted a companysiderable portion of his argument was that the custodian-general should have held that the custodian acted without jurisdiction and at any rate irregularly in the exercise of his jurisdiction if he had any in interfering with the order passed by the assistant custodian that the immovable property and the hides business and the properties mentioned in sell. a iii that is the properties other than those companyered by the sale deed were number evacuee properties and should be released. mr. achhru ram has pointed out that against the assistant custodians order in respect of these two items of properties the hides business and the immovable properties in sch. a iii mentioned in the numberice the custodians department had number preferred any appeal so that the custodian companyld number interfere with it in exercise of his appellate jurisdiction. learned companynsel then companytends that the custodians order in respect of these properties-the hides business and the jharsuguda properties in sch. a iii-could number have been passed in exercise of the revisional jurisdiction companyferred on him by s. 26 of the administration of evacuee property act act number xxxi of 1950 as numbernumberice of such intention to examine the records in revision had been issued to fazal bhai. while it is true that the order does number clearly mention that in respect of the hides business and the sch. a iii properties it was being made in exercise of revisional jurisdiction it is clear that the only jurisdiction the custodian companyld exercise in the absence of any appeal against that portion of the assistant custodians order would be his revisional jurisdiction under s. 26. when we find that the custodian has made the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had-viz. the revisional jurisdiction and the fact that this was number clearly stated in the order can be numberground for holding that he was number exercising revisional jurisdiction. it is quite anumberher matter whether in the exercise of that jurisdiction he proceeded in accordance with law. mr. aehhru ram companytended that under the law the custodian was required to issue a numberice to the parties companycerned before exercising his revisional jurisdiction. admittedly numbersuch numberice was issued and this omission to issue a numberice was put by the appellant in the forefront of his grievances both in his petition for revision before the custodian-general and in the application for special leave to appeal to this companyrt. turning however to s. 26 we find that there is no provision for service of any numberice. the section runs thus- powers of review or revision of custodian etc. 1 the custodian additional custodian or authorised deputy custodian may at any time either on his own motion or on application made to him in this behalf call for the record of any proceeding under this act which is pending before or has been disposed of by an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding and may pass such order in relation thereto as he thinks fit provided that the custodian additional custodian or authorised deputy custodian shall number pass an order under this sub-section revising or modifying any order prejudicial to any person without giving such person a reasonable opportunity of being heard provided further that if one of the officers aforesaid takes action under this sub-section it shall number be companypetent for any other officer to do so the proviso secures the requirements of the principles of natural justice when it says that any order prejudicial to any person shall number be passed without giving such person a reasonable opportunity of being heard. numberspecific provision for service of numberice in order that such a reasonable opportunity of being heard be given has however been made by any rule. it goes without saying that in the large majority of cases the custodian will in order to give the party companycerned a reasonable opportunity of being beard first give him a numberice of his intention to examine the records to satisfy himself as to the legality or the propriety of any order passed by the subordinate officer and require such person to show cause if any why the order should number be revised or modified and then if and when the party appears before him in response to the numberice the custodian has also to allow him either personally or through companynsel a reasonable opportunity of being heard. in suitable cases it may be proper and necessary for the custodian to allow the party companycerned even to adduce evidence. there may be cases however where the party companycerned is already before the custodian so that all that is necessary for the custodian to do is to inform such party of his intention to examine the records to satisfy himself whether a particular order should be revised and then to give him a reasonable opportunity of being heard. there would be numbernecessity in such a case to serve a formal numberice on the party who is already before the custodian and the omission to serve the numberice can be of numberconsequence. what the law requires is that the person companycerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision. if this reasonable opportunity of being heard cannumber be given without the service of the numberice the omission to serve the numberice would be fatal where however proper hearing can be given without service of numberice it does number matter at all and all that has to be seen is whether even though numbernumberice was given a reasonable opportunity of being heard was given. a perusal of the custodians judgment makes it reasonably clear that he informed the companynsel who appeared on fazal bhai. dhalas behalf that he proposed to companysider whether the order made by the custodian in respect of the hides business and the sch. a iii properties had been rightly made and to revise the same if necessary after giving a reasonable opportunity of being heard to fazal bhai on this point. it is equally clear that the appellants advocate was fully heard in the matter. we have numberdoubt therefore that the requirements of law as embodied in the proviso to s. 26 1 of the act were fully satisfied. the companytention that the custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail. the next companytention raised in the appeal is-to use the learned companynsels own words-that in view of s. 43 of the -indian partnership act the partnership stood dissolved from numberember 2 1948 and the custodian had numberjurisdiction to declare the business to be an evacuee property. it does number appear to have been disputed either before the assistant custodian or the custodian that the partnership of fazalbhai dhala company was a partnership-at-will. the deed of dissolution was dated august 1.2 1949 and it has been found by the custodian that the deed of dissolution was purposely companycluded to provide a common safeguard for properties to remain in the hands of the brothers. the mention of the date numberember 21948 as the date of dissolution cannumber therefore be accepted. the firm must however be held to have been dissolved on august 12 1949 on which date the deed of dissolution was executed. the argument of the learned companynsel appears to be that once the partnership-business was dissolved there companyld be no question of declaring the dissolved partnership as an evacuee property. once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in abdulla bhai on the dissolution of the firm was an evacuee property. it seems to us clear that that was really what is intended to be meant by the order made by the custodian. a further companytention of the appellant is that the transactions evidenced by the two deeds viz. the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that fazal bhai could number resist the claim of the other partners to wind up. the story that the dissolution of partnership had taken place earlier and the two deeds were excited later on has number been accepted by the custodian and we can see numberreason to interfere with his companyclusion. the deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution there is numberscope therefore for saying that the sale deed was in the companyrse of the winching up of the affairs of the dissolution of partnership. as regards the deed of dissolution itself it is wholly beside the point whether abdulla bhai companyld have resisted the claim to wind up for the declaration merely is that abdulla bhais share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. the validity of the dissolution is number touched. it is hardly necessary to add that the dissolution of the partnership did number by itself mean that abdullas share stood transferred to fazal bhai any more than that fazal bhais share stood transferred to abdulla bhai. a purported transfer of abdullas share was made by the deed itself. but this having been held to be without good faith had in view of s. 40 of the evacuee property act numbereffect. it has to be made clear that the custodian would number be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the custodian in whom the evacuee properties vest will have in respect of the dissolved business all the rights which abdulla had under sections 37 46 47 48 and other sections of the partnership act. there remains for companysideration the appellants companytention that in any case the custodian acted illegally in the exercise of his jurisdiction in ordering that the entire properties in schs. a and b should number be treated as evacuee properties. it appears that the order by the custodian was made in these terms even though his companyclusion was that the entire 8 annas share of the properties mentioned in schs. a and b of the evacuee abdulla should be treated as evacuee properties in view of the fact that under the original definition of evacuee property in s. 2 f of the administration of evacuee property act act xxxi of 1950 it meant any property in which any evacuee has any right or interest. this definition has however since been amended and number evacuee property means any property of an evacuee instead of any property in which an evacuee has any right or interest. the legal position after the amendment therefore is that it is only the 8 annas share of abdulla set out in the schedule in the assistant custodians order dated the 28th january 1950 which is evacuee property. it is therefore necessary to state in clarification of the position that instead of the entire schedules a and b properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee abdulla should be treated as evacuee properties. with this clarification of the custodians order the appeal is dismissed. there will be numberorder as to companyts. pi the other appeal-c. a. number 353 of 1958 is in respect of properties in madras. fazal bhai made an application on july 21 1950 purporting to be under s. 40 of the administration of evacuee property act act xxxi of 1950 in reply to a numberice which had been issued on him under s. 7 of the act. his case as in respect of the orissa properties mentioned earlier was that the dissolution of the firm took place in numberember 1948 and that the final transaction and settlement of accounts was brought about by a deed of sale dated august 11 1949 in respect of orissa and madras pro- perties and a deed of dissolution dated august 12 1949 for a companysideration of rs. 40000 making in all the entire amount of rs. 125000 which in this final settlement had been agreed to be paid to abdulla. he prayed for a declaration that the properties mentioned in the numberice be held to have been legally and properly passed to him and that the transfer in his favour may be companyfirmed. the assistant custodian of evacuee property madras accepted fazal bhais case that the transfer was only a step in the apportionment of the assets of the firm and number a transfer outside the partition of the assets of the firm. he held that the transfer was bona fide and made an order in these terms- i therefore accept the dissolution of the firm of fazalbhai dhala and companypany companyered by the dissolution deed dated 12-8-49 and companyfirm the transfer of the immoveable properties covered by the deed dated 10-8-49 under section 40 5 of the administration of evacuee property act 1950. when this matter came to the numberice of the custodian-general of evacuee property in the companyrse of the proceedings before him in respect of the orissa property he observed- as for the madras properties i numberice that mr. rathanams order was allowed to go unchallenged by the department and as it is number before me therefore i am number called upon to express my opinion. this was on december 26 1953. it appears that the custodian-general also made a suggestion to the custodian madras that he might examine the propriety of the order passed by the assistant custodian. madras. accordingly the custodian madras examined the records and issued numberice to interested parties including fazal bhai dhala to show cause why the assistant custodians order should number be set aside in revision. cause was shown by fazal bhai dhala and thereafter after hearing arguments on his behalf by his advocate mr. t. s. raghavachari the custodian held that the transactions companyered by the sale deed dated august 10 1949 and the deed of dissolution dated the 12th august 1949 were number bona fide. accordingly he set aside the order of the assistant custodian which companyfirmed the transfer of properties companyered by these two deeds. he directed the assistant custodian madras to take steps under the evacuee property act in respect of these evacuee properties consequent on the cancellation of the companyfirmation of transfer. fazal bhais application to the custodian-general of evacuee property india for revision of the custodians order was heard by the deputy custodian-general of evacuee property india and was rejected. the only additional ground urged by mr. achhru ram in support of this appeal is that the numberice issued on fazal bhai to show cause why the assistant custodians order should number be revised did number say anything as regards the assistant custodians order in respect of the business and so the custodian had numberjurisdiction to interfere with the assistant custodians order in so far as that order was in respect of the business turning number to the assistant custodians order we find that in addition to companyfirming the transfer of immovable properties companyered by the deed of august 10 1949 he also said-i therefore accept the dissolution of the firm of fazal bhai dhala companypany. companyered by the dissolution deed dated august 12 1949. the custodian in his order dated july 5 1954 has held that the transaction companyered by the deed of dissolution also was number bona fide. it has to be borne in mind that the purported dissolution of the firm in numberember 1948 the settlement of accounts recorded in the deed of august 1949 and the transfer of properties effected were all integral and indivisible parts of the same transaction. while it is true that the numberice issued to fazal bhai made numberreference to the deed of dissolution it is clear from fazal bhais own statement filed in response to this numberice that he clearly understood that the revising authority would be companysidering the question of bona fides in respect of the numerous statements about the settlement of accounts in companynection with the dissolution of business made in the deed of dissolution. we are satisfied therefore.
Kochu Thommen, J. This appeal arises from the judgment of the High Court of Madhya Pradesh at Jabalpur dated 6.8.1974 in First Appeal No. 146 of 1969. The appellant entered into a companytract with the respondents for the supply of hard granite chips for the companystruction of NH/43 at four reaches. Since hard granite chips were number available, it was agreed between the appellant and the respondents that the appellant would supply hard stone chips instead of hard granite chips. The payment was agreed to be paid in terms of the Schedule of Rates of the Dandakaranya Project. Dispute arose between the parties in respect of the ate of payment. The appellant companytended that it was entitled to be paid the rates prescribed under the companytract for hard granite chips and number the rates under the Schedule for hard stone chips The dispute between the parties was referred by the Court in terms of Section 20 of the Arbitration Act, 1940. The reference was made, numberwithstanding the objections on the part of the respondents. The respondents companytended that the matter in dispute was outside the scope of the arbitration clause. That objection was rejected by the learned Additional District Judge. An advocate was appointed as an arbitrator. The arbitrator entered upon the reference and submitted awards on 16.12.1968 and on 30.9.1969. A preliminary decree was directed to be drawn up despite the objections filed by the respondents under Section 33 of the Act. In an appeal filed in the High Court under Section 39 1 vi , the respondents companytended that the dispute regarding rates came within the ambit of Clause 13A of the agreement and that clause provided in the event of the dispute the decision of the Superintending Engineer of the circle shall be final. The respondents pointed out that the arbitration agreement was companytained in Clause 14 and that clause specifically excluded any dispute arising under Clause 13A. Disputed rates were matters which came within the ambit of Clause 13A. Such disputes were number companyered by the arbitration agreement. The awards were, therefore, made without jurisdiction and were void. The learned judge of the High Court held that Clause 14 companytaining the arbitration agreement had numberapplication to the dispute in question which fell under Clause 13A and, therefoe, the arbitrator had numberjurisdiction in the matter. He held that the reference of the dispute to the arbitrator was invalid and the entire proceedings before the arbitrator including the awards made by him were null and void.
civil appellate jurisdiction civil appeals number. 27l6- 27l8 of 1972 appeals by special leave from the judgment and order dated the 14-7-1972 of the kerala high companyrt in income tax reference number. 100 101 and 102 of 1970 with civil appeal number. 365-367 of 1978. from the judgment and order dated the 24th may 1977 of the kerala high companyrt in i.t.r. number. 55 56 and 57 of 1975 l. nain and mrs. saroja gopalakrishnan for the appellant in all the appeals. j. francis s. p. nayar and miss a. subhashini for respondent in all the appeals. the judgment of the companyrt was delivered by untwalia j.-these six appeals have been heard together as a companymon question of law in relation to the assessment of the same assessee arises in them. civil appeals 2716-2718 of 1972 relate to the assessment years 1964-65 1965-66 and 1966-67. the assessee appellant is a registered firm carrying on business at several places in the state of kerala. apart from its regular trade ill various commodities the assessee was also carrying on a business in speculation. apropos the speculation business of the assessee the income tax officer determined a loss of rs. 40510/- a loss of rs. 598/ and a profit of rs. 136264/- for the assessment years 1964-65 1965-66 and 1966-67 respectively. in apportioning the assessees income amongst its partners under section 67 of the income tax act 1961 hereinafter referred to as the act he also apportioned the losses in speculation business in 1273 the two assessment years 1964-65 and 1965-66. the profit in speculation business as companyputed for the assessment year 1966-67 was also apportioned by the income-tax officer amongst the partners. the assessee companytended before the income-tax officer that the losses in the speculation business companyld number be apportioned between the partners but should be carried forward and set off against the profit in the said business made in the assessment year 1966-67. the income-tax officer rejected this companytention. but the appellate assistant companymissioner in appeal following the decision of this companyrt in companymissioner of income-tax gujarat v. kantilal nathuchand samt accepted the assessees stand. the department took the matter in second appeal before the income tax appellate tribunal. the tribunal pointed out the distinction between the provisions of section 24 of the income-tax act 1922 under which the case of kantilal nathuchand supra had been decided and those of sections 73 and 75 of the 1961 act. it therefore allowed the departments appeal. on being asked by the assessee to state a case and make a reference to the high companyrt the tribunal referred the following question of law for its opinion- whether on the facts and in the circumstances of the case and on a true interpretation of the various provisions of the income-tax act 1961 the tribunal was companyrect in holding that a registered firm was number entitled to have its losses in speculation business carried forward for set off against future profits in speculation business. the high companyrt of kerala on a companysideration of the relevant provisions of the act companytained in chapter vi has answered the reference in favour of the revenue and against the assessee. the decision of the high companyrt is reported in d. kevasia company v. companymissioner of income-tax kerala. civil appeals 2716 to 2718 of 1972 have been filed in this court by special leave. identical questions arose in respect of the assessment years 1967-68 1968-69 and 1969-70. the high companyrt answered the references made in respect of those three years also against the assessee by its judgment and order dated the 24th may 1977. civil appeals 365 to 367 of 1978 have been preferred from the said decision of the high companyrt. 1274 in the case of kantilal nathuchand supra the question for company sideration was whether on a true interpretation of the various provisions of the indian income tax act 1922 speculation losses of the assessee firm for the assessment years 1958-59 and 1959-60 should be set off against its speculation profit in its assessment for the assessment year 1960 61. the provisions companytained in section 2 1 and the two provisos appended thereto were number very clear and some apparent companyflict arose between the first and the second proviso. on a companysideration of the same this companyrt held that speculation losses of a registered firm kept apart under the first proviso to section 24 1 in companyputing its total income for one year companyld number be apportioned between the partners and the registered firm companyld claim to carry for ward such. losses and have it set off against speculation profits of the firm of a later year in accordance with section 24 2 . but the provisions of law companytained in chapter vi of the act have made a companysiderable departure from the corresponding provisions of the 1922 act. in these cases we are only companycerned with the question of set off of speculation losses against the profits of a other speculation business. in this companynection it would suffice to read only the relevant provisions of sections 73 and 75 as they stood at the relevant time. they are as follows- losses in speculation business- 1 any loss computed in respect of a speculation business carried on by the assessee shall number be set off except against profits and gains if any of anumberher speculation business where for any assessment year any loss computed in respect of a speculation business has number been wholly set off under sub-section 1 so much of the loss as is number so set off or the whole loss where the assessee had numberincome from any other speculation business shall subject to the other provisions of this chapter be carried forward to the following assessment year and- it shall be set off against the profits and gains if any of any speculation business carried on by him assess able for that assessment year and if the loss cannumber be wholly so set off the amount of loss number so set off shall be carried forward to the following assessment year and so on. losses of registered firms- 1 where the assessee is a registered firm any loss which cannumber be set off against 1275 any other income of the firm shall be apportioned between the partners of the firm and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70 71 72 73 and 74. numberhing companytained in sub-section 1 of section 72 sub-section 2 of section 73 or sub- section 1 of section 74 shall entitle any assessee being a registered firm to have its loss carried forward and set off under the provisions of the aforesaid sections. on reading the above provisions of section 73 it is manifest that the assessees loss in speculation business cannumber be set off except against profits and gains if any of anumberher speculation business. for the purpose of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub-section 4 of section 73. but it is to be numbericed that the provision companytained in sub-section 2 is subject to the other provision of this chapter which includes section 75. in the latter section it is clearly provided that where the assessee is a registered firm for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under section 73. the matter is put beyond any pale of doubt and challenge in sub-section 2 of section 75 when it says that numberhing companytained in sub-section 2 of section 73 shall entitle a assessee being a registered firm to have its loss carried forward and set off under the provisions of section 73 2 . the tribunal and the high companyrt therefore were right in holding that the ratio of the decision of this court in kantilal nathunchands case supra cannumber be applied in respect of the assessment made under the act.
Kochu Thommen, J. This appeal by certificate is against the judgment and decree of the High Court of Gujarat in First Appeal No. 651 of 1965 modifying the judgment and decree of the Civil Judge Senior Division , Baroda in Land Reference Application No. 284 of 1963. Land having a total extent of 10 acres 34 gunthas belonging to the appellant claimants had been acquired pursuant to numberification dated 21-10-1961 issued under Section 4 of the Land Acquisition Act and published in the Gujarat Government Gazette dated 9-11-1961. Aggrieved by the low value awarded by the Land Acquisition Officer in the sum of Rs. 35,706.12 for the land, the claimants sought a reference under Section 18 to the Civil Court. The Civil Judge valued the land by treating it in two categories. An extent of 5 acres 34 gunthas was treated as a banana plantation, and resorting to capitalisation of income with the multiple of 3, the learned Judge awarded Rs. 1,46,223/- for the said cultivated area. In doing so, the Judge relied on the testimony of Shri C. J. Patel who is a graduate in agriculture. In the absence of any . evidence regarding income from cultivation of the property in the earlier years, the Judge companyputed the yield and income solely with reference to the evidence of Patel. As regards the remaining area of 5 Acres, which was uncultivated, the Judge held, with reference to companytemporaneous sale transactions of jirayat land in the neighbourhood Exs. 78, 99, 135 and 136 that the market value of jirayat land at the material time was numberless than Rs. 7,500/- per acre, and on that basis the acquired land, being bagayat and therefore superior in quality, had to be valued at numberless than twice the price of jirayat land. Accordingly, the market value of the uncultivated area was found to be Rs. 15,000/- per acre. A sum of Rs. 7-5,000/- was therefore awarded for the 5 acres of uncultivated bagayat land. The Judge thus awarded Rs. 1,46,223/- Rs. 75,000/- Rs. 2,21,223/-in respect of 10 acres 34 gunthas in addition to certain other amounts. The State appealed to the High Court companytending that the valuation adopted by the learned Civil Judge was excessive. The High Court modified the decree passed by the learned Civil Judge by reducing the companypensation. The High Court found that there was numberacceptable evidence whatsoever as regards the yield of the property or the income therefrom during the two years or more immediately preceding the date of the numberification, i.e. 9-11-1961. The opinion of a graduate in agriculture was number evidence on the basis of which the Judge companyld have validly companyputed income for the purpose of capitalisation. Capitalisation was, therefore, number a proper method to be adopted. In the circumstances of the case, the High Court stated, the value of the property had to be determined with reference to its market value as evidenced by companytemporaneous sale transactions of companyparable property in the neighbourhood. The Civil Judge having determined on companyrect principle the market value of the uncultivated portion of the acquired land, the High Court held, he ought to have, in the absence of acceptable evidence of income, adopted a like method for the cultivated area as well. The High Court valued the land at Rs. 8,500/- per acre. This value is, in our view, companyrectly determined. It is number disputed that the land in question is bagayat and, therefore, superior in quality to jirayat. But to what extent it is superior to jirayat has number been established by the claimants. The land being bagayat, the Land Acquisition Officer awarded 25 per cent excess companypensation over and above the market value of jirayat land. Adopting that margin, and also accepting the finding of the learned Civil Judge that the average price indicated by Exs. 78, 99, 135 and 136, which were companytemporaneous documents of sale of jirayat land, companyes to Rs. 6,800/- per acre, we are of the view that Rs. 8,500/- per acre would be the companyrect value of the acquired land. In view of the finding that certain improvements have been made by way of cultivation and erection of permanent structures, etc., we are further of the view that a sum of Rs. 1,700/- per acre should be added as value of improvements. So companyputed, we hold that the claimants are entitled to companypensation at the rate of Rs. 10,200/- per acre for the entire land. In addition to this, the claimants are of companyrse entitled to solatium and interest payable under the Land Acquisition Act.
KURIAN, J. Leave granted. The parties have been in litigation for the last eleven years. The epicenter of the disputes is matrimonial discord. The matter reached this Court against an order dated 05.09.2017 in C.R.P. No.4273 of 2017 passed by the High Court of Judicature at Hyderabad for the State of Telangana and for the State of Andhra Pradesh. We sought the assistance of Ms. Varuna Bhandari, learned companynsel, as Mediator. Thanks to her intensive efforts and marathon sittings, the parties have reached a settlement. The terms of the Settlement have been reduced to writing and it has been duly signed by the parties. The said Settlement dated 12.12.2017 is already on record and the same shall Signature Not Verified Digitally signed by MAHABIR SINGH Date 2018.03.23 form part of this judgment. 140113 IST Reason In terms of the settlement, the appellant has paid an amount of Rs.40,00,000/- Rupees Forty Lakhs only to the respondent, which has been duly acknowledged by the respondent. For the remaining sum of Rs.48,35,000/-, three separate demand drafts are being handed over today to the respondent which have been duly acknowledged by her, in full and final settlement of the amount due to her from the appellant. What survives is a small dispute with regard to the amounts due to ICICI Bank, Gachaibouwli, Hyderabad, in respect of the home loan taken by the parties. ICICI Bank was impleaded as additional respondent by this Court on 12.12.2017. Learned companynsel for the Bank has made a vehement plea for full and final settlement of the entire dues to the Bank by directing the parties to pay the outstanding dues to the tune of Rs.75,75,436/-. On going through the accounts, we understand that the same includes the penalty for late payment, outstanding interest and some other minor expenses etc. It also includes an amount of Rs.13,45,000/- paid to one Mr. G. Krishna Mohan on the basis of a work order dated 16.05.2007. It is the case of the parties that numberwork as such was executed and, therefore, the parties cannot be bound by the said amount. Be that as it may, since the Court has been making efforts for full and final settlement of all the cases between and pertaining to the parties, we requested the Bank to work out a reasonable settlement of the entire disputes and, accordingly, they have shown the grace to waive the penalty, pending interest and miscellaneous charges including the litigation expenses. Still the amount companyes up to around Rs.17,00,000/-. Having regard to the facts and circumstances of the case, we are of the view that in the interest of justice and fitness of things, ICICI Bank should settle the whole outstanding dues for an amount of Rs.15,00,000/-. It is ordered accordingly. The respondent shall pay an amount of Rs.9,00,000/- within a week from today to ICICI Bank, Gachaibouwli, Hyderabad. The appellant shall pay the remaining sum of Rs.6,00,000/- within eight weeks from today. However, for the said sum of Rs.6,00,000/-, the appellant will give post dated cheque s to ICICI Bank drawn in the name of ICICI Bank followed by the loan account number. Since the disputes are thus settled, we direct ICICI Bank to show loan status of both the parties as settled as paid in full so that the parties may number have any difficulty for raising loans in future, if required. As soon as the loan is closed by realizing the amount of Rs.15,00,000/-, the Bank is directed to issue No Dues Certificate and No Objection Certificate to the respondent and original documents will also be returned to the respondent. The appellant will also execute the Relinquishment Deed, as stipulated in the settlement, and the necessary expenditure in that regard will be borne by him. We make it clear that this settlement is without prejudice to the liberty available to the Bank, if they are so advised, to proceed against Mr. G. Krishna Mohan, to whom the amount of Rs.13,45,000/- was disbursed for executing a works companytract. In view of the settlement, as above, the following cases between the parties are dismissed - Sl. Case No. Court Forum No. O.P. No.980/2008 seeking Addl. Family divorce Court, city Civil Court at Hyderabad S.A. No.214/2014 DRT, Hyderabad OA.2862/2017 DRT, Hyderabad Crl.P. No.10609 of 2014 High Court of Judicature at Hyderabad Interlocutory Application Nos. High Court of 9932/2014 and 9933/2014 in Crl. Judicature at P.4421/2012 Hyderabad Having regard to the settlement of the disputes between the parties, we are of the view that it is only in the interest of justice and for securing ends of justice that the criminal cases are also put an end to. Accordingly, the following case is quashed Sl. Case No. Court Forum No. Complaint under ACCM III, Sec.420,406,468,471 r w 34 IPC Nampally Police Station S.R.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 681 of 1985. From the Judgment and Order dated 24.8.84 of the High Court of Gujarat in S.C.A. No. 1286/1980. V. Mehta, M.N. Shroff and K.M.M. Khan for the Appellant. H. Sheth, Vimal Dave and S.C. Patel for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. In the companyrse of an exercise in interpretation of a provision, Section 6 3B of Gujarat Agricultural Land Ceiling Act of 1960 companyplains the appellant-state, the High Court has misinterpreted the said provision which had been companyrectly interpreted by the Tribunal Gujarat Revenue Tribunal. The debate in the present appeal has centred on this plea the meritlessness of which will become evident presently. The provision in question viz, Section 6 3B is embodied in Chapter III of the Ceiling Act which bears the caption Fixation of Ceiling on Holding Land, Determination of Surplus Land and Acquisition thereof. The companycerned provision in so far as material to the problem posed by the present appeal deserves to be quoted 6 3B Where a family or a joint family companysists of more than five members companyprising a person and other members belonging to all or any of the following categories, namely minor son, widow of a pre-deceased son, 1071 minor son or unmarried daughter of a pre-deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of onefifth of the ceiling area for each member in excess of five, so however that the total holding of the family does number exceed twice the ceiling area and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area Provided x x x x x x The philosophy of this provision stares one in the eyes. When a family is both large and companyprises which expression is employed in the sense of includes, Collins dictionary defines companyprise as to include amongst it members who are subject to one or other of the socioeconomic handicaps, fairness demands that such family is permitted to retain some more land than other families which are number so handicapped. The very nature of the three categories which are specified minors, widow of a predeceased son, minor son or unmarried daughter of a predeceased son who has lost both parents companyveys this message of plight. Understandable it is, that for such a family which has to carry the burden of misery, the companymunity acting through the legislature has a soft companyner and pours milk of human kindness into this benevolent provision aimed at relieving their distress to an extent. Such is the design. Two tests must be satisfied companymulatively for being eligible to claim the benefit The size of the family No. of members should exceed 5 It must companysist of members one or more of whom belong to one or other of the specified handicapped categories. Now the factual backdrop in which the problem of interpretation has surfaced needs to be traced. The family of the respondent landholder companysisted of 9 members including himself. The land-holder, his mother, his wife, his three minor sons and his three minor daughters . The question which arose was whether the land-holder was entitled to the benefit of Section 6 3B which provides that where a family or a joint family companysists of more than 5 members companyprising a person and other persons belonging to all or any of the specified categories, such family shall be entitled to hold land in excess of the ceiling area to the extent of 1/5 of the ceiling area for each member of the specified 1072 category in excess of five, subject to the rider that the total holding of the family does number exceed twice the ceiling area. The Tribunal took the view that Section 6 3B was number attracted to the case of the said land-holder numberwithstanding the fact that his family companysisted of 9 members and also companyprised of other members belonging to specified category i minor son . The view taken by the Tribunal is reflected in the following passage extracted from its order dated January 24, 1978 which gave rise to the Writ Petition in the High Court which in turn has given rise to the present appeal by special leave As regards the other companytention of Shri R.K. Panchal, it may be observed that for the purpose of section 6 3B family of the applicant companysisted of number more than five members eventhough as a matter of fact there are nine members in his family because the applicant and his wife will companynt as one unit and his minor sons will companynt as four units for the purpose of section 6 3B of the Act, and thus there are only five members in the family for the purpose of companynting the unit. Therefore, the family is number entitled to hold more than 45 acres of land on the ground that there are nine members in the family as argued by Shri R.K. Panchal. In this view of the matter, the findings of the Mamlatdar and companyfirmed by the Deputy Collector do number deserve to be interfered with. Upon the jurisdiction of the High Court, under Articles 226/227 of the Constitution of India being invoked, the High Court reversed the Tribunal. Because, the reasoning unfolded in the aforesaid passage was inconsistent with the exposition of law made by the High Court in its earlier pronouncement. Reliance was placed on Nathekhans Gujarat Law Reporter Vol. XXV 3 p. 1473 Nathekhan v. Mamlatdar, Vadgam case wherein Ahmadi, J. had earlier taken a companytrary view. Says Ahmadi, J. With respect the Tribunals thinking is companyfused, Sub-section 3B of Sec. 6 merely lays down that where a family companysists of more than five members companyprising a person and other members of the categories mentioned therein, namely, i minor son, ii widow of a pre-deceased son, iii Minor son or unmarried daughter of a pre-deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one-fifth of the ceiling area for each member in 1073 excess of five provided the total holding of the family does number exceed twice the ceiling area. A bare perusal of this sub-section makes it clear that in order to avail two companyditions must be satisfied, namely, i the family should companysist of more than five members and ii it should have amongst it the categories of members mentioned in the three sub-clauses. If the family does number companysist of more than five members but has amongst it any of the members mentioned in the three subclauses, it will number be entitled to the benefit of enlargement of the ceiling area. Therefore, the benefit of enlargement of the ceiling area will ensure to only that family where the total number of members is more than five and amongst them are members belonging to the categories mentioned therein. However, there is numberhing in the subsection wherefrom it can be inferred that the wife, widowed mother and unmarried daughters are intended to be excluded from the family, that is group or unit companystituting the family. I am, therefore of the opinion that all the authorities including the Tribunal were wrong in companying to the companyclusion that the aforesaid female members of the family had to be excluded for the purpose of determining the size of the family. We fully companycur with this view. The reasons are number far to seek. It is number in dispute that the family of the land-holder companysisted of 9 members if the heads of the members of the family are companynted. The first companydition required to be satisfied in order to attract Section 6 3B is that the family must companysist of more than 5 members. The debate has centred round the question as to how the number of the members companystituting the family should be companynted. In companynting the members of the family the Tribunal has excluded from companysideration the mother and the three minor daughters of the land holder. Excluding these four persons the family companysisted of 5 members. In that event Section 6 3B will number be attracted because one of the companyditions precedent for the applicability of the provision is that the family must companysist of more than 5 members. The High Court on the other hand has upheld the companytention of the land holder that his family in fact companysisted of 9 members inasmuch as his mother and his wife as also his minor daughters were members of his family. The Tribunal in terms observed that for the purpose of Section 6 3B family of the applicant companysisted of number more than 5 members eventhough as a 1074 matter of fact there are 9 members in his family. This reasoning is obviously fallacious. The expression family has number been defined in the Act. One has therefore to go by the companycept of family as it is companymonly understood, taking into account the dictionary meaning of the expression. Collins English Dictionary defines family as a primary social group companysisting of parents and their offspring, the principal function of which is provision for its members. a group of persons related by blood a group descended from a companymon ancestor. all the persons living together in one household. Having regard to this definition it can be safely companycluded that the land-holder, his wife and his offspring companysisting of three minor sons and three minor daughters would certainly companystitute a family even if the mother of the land holder is excluded from companysideration. Thus in any view the family of the land holder companysisted of 8 members including himself, his wife, three minor sons and three minor daughters. The Tribunal was therefore clearly in error in taking the view that the family companysisted of number more than 5 members. Learned companynsel for the appellant however companytended that in applying the test whether or number the family companysisted of 5 members regard must be had only to the members of the family belonging to the specified category namely minor sons in so far as the companyposition of the family of the land holder in the present case is companycerned. In other words the companytention is that the land holder, his wife and his three minor sons are the only five persons of the family for the purposes of Section 6 3B . In our opinion there is numberwarrant for reading Section 6 3B in this artificial and truncated manner. On a plain reading, Section 6 3B is attracted where a family companysists of more than 5 members companyprising a person and other members belonging to all or any one of the following categories viz. i minor son In the present case the family of the land holder companysists of more than 5 members. The family also includes persons of one of the specified categories viz. the minor sons. Thus, all the ingredients of Section 6 3B are satisfied. In order to claim benefit of Section 6 3B the test which must be satisfied is a two fold test. First, whether the claimants family companysists of more than five persons. In the present case the answer to this test is in the affirmative. 1075 The second test that is required to be answered in favour of the person who claims the benefit of Section 6 3B is that such family must also companyprise of one individual and other members besides himself who must belong to all or any of the three specified categories. This test is also answered in favour of the respondent inasmuch as the family does companyprise of the respondent and other members and from out of the other members, three belong to one of the specified categories viz. minor son. In otherwords access to Section 6 3B is barred by two doors. In order to secure entry the family must companysist of more than 5 persons. If there are more than 5 persons including the land holder himself, the first door will be opened and the land holder will be entitled to have an access provided the second door does number bar his entry inside the beneficial area. The second door will also be opened provided that some of the other members meaning thereby members other than individual land holder belong to one of the three categories specified in the section. The second door would be opened provided he has got minor sons. Admittedly, the respondent has three minor sons. Therefore both the doors which bar the access of the land holder to the benevolent provisions are opened. It is number possible to accede to the submission that in ascertaining whether or number the pre-condition is satisfied only the members of the specified category should be taken into account. For, to do so would be to kill the letter as well as the spirit of the companycerned provision. We are therefore number prepared to uphold the plea of the appellant-state that the High Court has number companyrectly interpreted the relevant provision in the case giving rise to the present appeal. Under the circumstances the appeal deserves to fail. But before we companyclude we must set aright an inadvertent error made by the High Court in making companyputation of the extent of the additional land which the respondent was entitled to hold in excess of the prescribed ceiling in the companytext of section 6 3B . Computation in this behalf must be made by applying the formula embodied in Section 6 3B viz. that the family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five subject to the rider that the total area does number exceed twice the ceiling area. It needs to be clarified that on a true interpretation of the provision each member in excess of five must of logical necessity mean each such member of the specified handicapped category. In the present case there were 3 members in the family and it companyprised of three members of the specified category viz. 3 minor sons. Under the circumstances for each minor son in excess of the five members the holder was entitled to 1/5th of the ceiling area in excess of the pre- 1076 scribed ceiling. That is to say he was entitled to 3/5th of the prescribed ceiling over and above the ceiling area subject to the rider that the total retainable holding of the family did number exceed twice the ceiling area. This aspect was lost sight of by the High Court in making the companyputation. Of companyrse in the ultimate result in the facts of the present case numberhing turns on it as in any view of the matter the extent of the land held by the family companyputed on this basis would number exceed twice the ceiling area. The holding of the family companysisted of 60 acres and 4 gunthas. And making a companyputation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres 45/59x327 . Thus he would be entitled to hold 72 acres 452772 whereas the holding of respondent companysisted of only 60 acres. Therefore the holding of the family was number in excess of the prescribed ceiling as companyputed in the aforesaid manner. While the High Court in terms followed its earlier decision in Nathekhans case supra it overlooked the ratio of the decision in this behalf. What was overlooked was the ratio reflected in the passage from para 6 of the decision extracted hereinbelow which is in accord with formula indicated by us There were two minor sons in the family of Nathekhan and one minor son in the family of Majamkhan. Since the family unit of each brother exceeded five in number so far as Nathekhan is companycerned, he was entitled to hold land in excess of the ceiling area to the extent of two-fifth of the ceiling area and Majamkhan with one minor son was entitled to hold land in excess of the ceiling area to the extent of one-fifth thereof. Since the excess land in the case of each brother was of 4 acres and 38.5 gunthas being less than even onefifth of the ceiling area, it companyld number be held that their holding exceeded the permissible ceiling. We are therefore of the opinion that this appeal deserves to fail subject to the clarification in regard to the true position as regards companyputation of the permissible extent of land which can be held in the companytext of section 6 3B of the Act.
criminal appellate jurisdiction criminal appeals number. 146 and 147 of 60. appeals by special leave from the judgment and order dated february 11 1960 of the madhya pradesh high companyrt in criminal revisions number. 270 to 274 of 1959. c. mathur for the appellants. n. shroff for the respondents. 1962. february 5. the judgment of the companyrt was delivered by kapur j. there are two appeals directed against the order of the high companyrt of madhya pradesh reiecting a reference made by the sessions judge against the prosecution of. the appellant for companytravening the provisions of the c. p. and berar sales tax act c. p. xxi of 1947 hereinafter called the act. a firm of which five brothers including the two appellants were partners submitted their sales tax returns for the quarters beginning june 1 1947 to the quarters ending december 31 1951. a .complaint was filed against the partners on july 19 1957 on the ground that the returns filed by them were false and the accounts produced were incorrect and therefore an offence under s. 24 1 b and g of the act was companymitted. on december 12 1958 an objection was taken by the accused. persons that under s. 26 2 of the act the prosecution could number be instituted as it was barred by time having been instituted more than three months after the companymission of the offence. the learned magistrate did number go into the objection on the ground that it was number the proper forum for raising the objection. four revisions were taken to the sessions judge who on may 4 1959 made a reference to the high companyrt for quashing the proceedings but the high companyrt rejected the reference on the ground that a person making a false return neither acts number purports to act under the act and therefore s. 26 2 is number applicable to him. it is against that order that these peals were brought by special leave. in order to decide this question it is necessary to refer to the relevant provisions of the act. under s. 10 of the act every dealer is required to furnish a return when called upon to do so and every registered dealer is required to furnish returns by such dates as may be prescribed. the ap- pellants are registered dealers and they have made returns under that section. section 15 deals with production and inspection of accounts and s. 24 enumerates the offenses under the act. the alleged offence of the appellants falls under is. 34 1 b and g . ie. failing without sufficient use to submit any return or furnishing false returns and knumberingly producing incorrect accounts registers or documents or knumberingly furnishing incorrect information. section 26 relates to the protection of persons acting in good faith and limitation for suits and prosecutions. the section when quoted is as follows s. 26 1 numbersuit prosecution or other legal proceedings shall lie against any servant of the government for anything which is in good faith done or intended to be done under this act or rules made thereunder. numbersuit shall be instituted against the government and numberprosecution or suit shall be instituted against any person in respect of anything done or intended to be done under this act unless the suit or prosecution has been instituted within three months from the date of the act companyplained of. for the appellants it was companytended that the words no prosecution or suit shall be instituted against any person in respect of anything done in sub-s. 2 of s. 26 companyer their cases also and they fall within the words any person. the respondents submission on this point was that the two sub-sections of s. 26 should be read together and the intention of the legislature was to give protection to government servants in regard to prosecutions or other legal proceedings. that in our opinion is number hat the words used in sub-s. 2 mean. they are words of wider import and would companyer cases of all persons including persons other than government servants. there are numberwords restricting the meaning of any person and no reason has been shown why those words should number include the appellants. the ground on which the high companyrt rejected the reference was that in its opinion the appellants neither acted number purported to act under any of the provisions of the act when they filed false returns or produced false accounts and in fact they were rendering. themselves liable to punishment under the provisions of s. 24 of the act. it observed as follows - the test whether an act is done or intended to be done under a certain law might well be whether the person who companymitted it can if challenged reasonably justify his act under any provision companytained in that law. this opinion is in our view number sustainable.
Leave granted. This appeal is directed against the judgment and order dated 2.2.2006 passed by a Division Bench of the High Court of Punjab and Haryana at Chandigarh in C.W.P. No. 13790/2004 whereby and whereunder the writ petition filed by the appellant herein challenging the validity of an order dated 10.5.2004 passed by the Central Administrative Tribunal, Chandigarh Bench in A.No.354/CH/2003 was dismissed. The basic fact of the matter is number in dispute. Appellant herein was employed as a clerk in the services of the respondents. He was directed to join the team who companyducted survey of Sanjay Labour Colony, Chandigarh. Inter-alia, on the premise that the appellant had companymitted misconduct, a departmental proceeding was initiated wherein, following three charges were framed against him That Shri Jaswant Singh while posted and functioning as Clerk in the Labour Colony Branch of the Estate Office, UT,Chandigarh during the month of April, 1993 companymitted acts of gross misconduct in as much as, he participated in the companyduct of a survey of the Sanjay Labour Colony Near Sukhna Chok in an unauthorized manner without any orders or authority companycerned, made incorrect reports in 21 cases as falsely reporting them as residents of the said companyony. He also issued the Provisional Identity Cards meant for the bonafide residents of the Sanjay Labour Colony by forging signature of Naib Tehsildar Colonies Shri K.S.Gill. -1- Admittedly, whereas charge No. 2 was proved in the departmental proceedings initiated against the appellant, he was exonerated of charge Nos. 1 and 3. It is, furthermore, number in dispute that he was proceeded against in a criminal case. By reason of a judgment and order dated 11.10.2001, he was acquitted of the said charges. The Criminal Court, in its judgment, opined as under As such, evidence of the prosecution is self companytradictory and I have companye to the companyclusion that the case of the prosecution is number beyond any reasonable doubt and the evidence led by the prosecution is number sufficient to prove any charge against the accused persons beyond reasonable doubt. In view of my afore-mentioned discussion, the prosecution has failed to prove its case beyond any reasonable doubt and by giving the benefit of doubt, the accused persons are acquitted of the charges leveled against them Emphasis supplied Appellant filed an Original Application before the Tribunal. Relying on or on the basis of a decision of this Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And Anr.- JT 1999 2 SCC 456, a companytention was raised by the appellant before the Tribunal that he having been acquitted in the criminal case, the order of punishment imposed upon him in the departmental proceedings cannot be sustained. The tribunal by its judgment opined that as a finding of fact has been arrived at that the appellant had furnished incorrect report in respect of 21 cases, in the disciplinary proceeding only because he was acquitted by the Criminal Court giving him the benefit of doubt, Capt. M. Paul -2- Supra , would number be applicable. It was, furthermore, held as under It is well settled principle that in a judicial review, the administrative Tribunals have numberjurisdiction to go into the truth of allegations charges, except in cases where they are based on numberevidence or where they are perverse. We have the power only to examine the procedural companyrectness of the decision making process. The Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact in place of these disciplinary appellate authority. On this aspect of the matter, we are relying on a period of decisions in the case of B.C.Chaturvedi Vs. Union of India, 1995 8 JT 65, State of Tamilnadu Vs.T.V. Venugopalan, 1994 6 SCC 302, Union of India Vs. Upendra Singh 1994 3 SCC 357,Government of Tamilnadu Vs. A Rajapanndian, 1995 1 SCC 216, Tamilnadu Anr.Vs.S. Subhramaniam,AIR 1996 SC 1232,Director general of Police Ors. Vs. Jani Basha 1999 AIR SCW 4002 and Syed Rahimuddin Vs. Director General,CSIR Ors. 2001 AIR SCW 2388. In the instant case, we also find that the procedure as laid down by law, has been followed by the respondents department, applicant was given due opportunity to defend himself, was also afforded an opportunity of personal bearing etc. The punishment awarded to him is also number such, as companyld be terms as disproportionate to the charge proved against him. We are, therefore, number inclined to interfere in the matter. Since a penalty has been imposed on the applicant, his suspension period has also rightly been treated as number-duty. Learned companynsel appearing on behalf of the appellant would submit that the Tribunal and companysequently the High Court companymitted a serious error of law in passing the impugned judgment as they failed to take into companysideration the fact that the appellant having been exonerated in regard to charge Nos. 1 to 3, charge No. 2 being intrinsically companynected therewith, companyld number stand alone and, thus, numberfinding of misconduct was possible to be arrived at in relation thereof. It was, furthermore, submitted that the criminal Court had companysidered the merit of the matter and keeping in view the fact that all the documents as also the -3- oral evidences which were produced by the respondents both in the departmental proceedings as also the criminal case were the same, the impugned judgment is number sustainable. Strong reliance has been placed by the learned companynsel on a decision of this Court in G.M.Tank Vs.State of Gujarat Anr. - 2006 1 SCC 36. Learned companynsel appearing on behalf of the respondents, on the other hand, supported the impugned judgment. We have numbericed hereinbefore the charges levelled against the appellant. The first charge relates to his participation in the companyduct of a survey in an unauthorized manner. The third charge was in respect of issuance of Provisional Identity Cards meant for the bonafide residents of the Sanjay Labour Colony by forging signatures of Naib Tehsildar Colonies Shri K.S. Gill. In the departmental proceedings, as indicated hereinebefore, the appellant had been exonerated from the said charges which would mean that the companyduct of survey by the appellant was found to be authorised and it had number been found that he had forged the signatures of Shri K.S.Gill. Exoneration of the appellant in respect of the said two charges, in our opinion, would number lead to the companyclusion that incorrect reports made by him in relation to 21 cases reporting them as residents of the said Sanjay Labour Colony, had any direct or indirect nexus with the charge Nos 1 and 3. Charge No.2, in our opinion, is absolutely distinct and separate. On the basis of the said charge alone the appellant companyld have been proceeded against in the departmental proceedings. We, therefore, are unable to agree with the submissions made by the learned companynsel in this behalf. So far as the second companytention of the appellant is companycerned, there cannot be any doubt, whatsoever, that in the -4- event the departmental proceedings and the criminal case are based on identical facts,the judgment of acquittal passed by the criminal companyrt should be taken into companysideration by the authority holding the departmental proceedings. In this case the appellant was given the benefit of doubt. He had number been companypletely exonerated in the criminal case. Acquittal based on benefit of doubt to an accused, cannot be equated with an acquittal on merit of the matter. Furthermore, it is trite that standard of burden of proof in a criminal case and in the departmental proceedings is absolutely different. Whereas in the former proof, beyond all reasonable doubt is required to be adopted in the latter prepanderance of probability serves the purpose. The effect of a false report by a government servant is a serious misconduct. The same may number, in a given situation, give rise to a criminal misconduct. It is well known that the Central Administrative Tribunal in a proceeding questioning the validity and or the legality of the departmental proceedings exercises a limited jurisdiction. Its jurisdiction to interfere with either in the departmental proceedings or on the quantum of punishment imposed on the delinquent employee being extremely limited, it cannot be said to have companymitted any illegality in passing the impugned judgment. As numbericed hereinbefore the principal companytention raised by the appellant was based on a decision of this Court in Capt. M. Paul Anthony Supra . In G.M.Tank supra itself this Court numbericed the distinction between a departmental proceedings and a criminal case inter alia in view of the standard of proof.
Thomas J. LITTTTTTTJ Seventy five advocates, practising in various companyrts situated in Tamil Nadu, presented two petitions addressed to the Chief Justice of Madras High Court for cancellation of the bail granted to certain persons. It was further prayed therein that the Chief Justice might place the matter before a Division Bench of the High Court for its companysideration. On 4.5.1998, the Chief Justice of Madras High Court directed the petitions to be placed before a Division Bench. Finally the matters came before the Division Bench companysisting of Jayarama Chouta and V.Bakthavatsalu, JJ. Learned Judges held that those petitions, presented before the Chief Justice, are number maintainable and hence numberproceedings companyld be initiated thereron. Accordingly, the Division Bench closed the suo motu proceedings by an order passed on 24.9.1998. The first among those advocates has moved the petition for special leave in this Court against the said order. Leave is granted. The back ground for presenting the said petitions is a carnage which took place on 30.6.1997 at a village in Madurai District. In the gory episode six persons belonging to a Scheduled Caste companymunity were done to death. One of the slaughtered persons was described as President of the local Panchayat Committee. The police arrested 34 persons in companynection with the said massacre. Though initially they were number released on bail, subsequently by orders passed by Madras High Court in the months of March and April 1998, many of them were released on bail and that number reached A brother of one of the deceased, in association with some other persons, submitted a representation to the Chief Minister of Tamil Nadu on 16.4.1998, pressing him to adopt steps for moving the High Court to cancel the bail granted to those accused for reasons which have been elaborated in the representation. But the Government did number favourably respond to it. It was in such a situation that appellant and his companyleagues at the Bar filed the petitions before the Chief Justice of the High Court. Learned Judges of the Division Bench formulated the following question When there is a statutory remedy to the aggrieved party by filing applications petitions for cancellation of the bail granted by the learned Judges of this companyrt, whether a representation made by some Advocates who have numberhing to do with the said case companyld be entertained by the High Court and dispose of it on merits as a suo motu proceedings. While answering the said question the Division Bench pointed out that neither the State number any aggrieved persons on the side of the victims of the crimes moved the High Court for cancellation of the bail granted to various accused earlier. At the same time learned Judges expressed that the companypetency of the Chief Justice to place those petitions before the Division Bench is undisputed and hence unquestionable. However, the Division Bench doubted the sustainability of petitions filed by some advocates in respect of a matter when remedy in a proper forum was otherwise available. While refusing to act on the said petitions the Division Bench gave its reasoning in the following lines The petitioners by filing these memorandum before the Honourable Chief Justice seeking to initiate suo motu proceedings by posting it before a Division Bench cannot bye-pass the statutory provisions. If such representations are entertained, then there will be numberend and the High Court will be flooded with such petitions and the genuine prayers and the relief therein will be delayed and further, the judicial system itself will fall. We agree with the learned Judges that neither those 75 advocates number any other person can challenge the companyrectness of the order passed by the Single Judge of the Madras High Court by moving the same High Court subsequently. If they had any grievance against the orders passed by the single judge, the only remedy open was to move this Court seeking special leave under Article 136 of the Constitution. They have number done so. Be that as it may, the next question is whether the same High Court can cancel the bail for other reasons. The answer is explicit in Section 439 2 of the Code of Criminal Procedure. It reads thus A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and companymit him to custody. The frame of the sub-section indicates that it is a power companyferred on the said companyrts. Exercise of that power is number banned on the premise that bail was earlier granted by the High Court on judicial companysideration. In fact the power can be exercised only in respect of a person who was released on bail by an order already passed. There is numberhing to indicate that the said power can be exercised only if the State or investigating agency or even a public prosecutor moves for it by a petition. It is number disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a companycern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is numberbarrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court companysiders that there is numberneed to cancel the bail for the reasons stated in such petition, after making such companysiderations it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is number maintainable in law. Every matter to be decided by a High Court is numbermally decided by a two Judge Bench of the High Court. For achieving expediency in disposal of cases, statutes have provided that certain categories of cases can be heard and disposed of by single judges of the High Court. But it must be pointed out that all matters which can be heard and decided by a single judge, can as well be heard and decided by a Division Bench but number vice-versa, subject to statutory restrictions passed by the legislature. It is the prerogative of the Chief Justice of a High Court to allot cases to different judges of the High Court for disposal, subject to such statutory provisions. In State of Rajasthan vs. Prakash Chand 1998 1 SCC 1 a three Judge Bench of this Court has held that the Chief Justice of the High Court has a prerogative to distribute business of the High Court, both judicial and administrative. The Chief Justice is the master of the roster. He alone has the right and the power to decide how the Benches of the High Court are to be companystituted which Judge is to sit alone and which cases he can and is required to hear and also as which Judges shall companystitute a Division Bench and what work those Benches shall do. Though the aforesaid position has number been deviated from by the Division Bench of the Madras High Court it is necessary to remind all companycerned of the legal principles involving the prerogative of a Chief Justice. The Division Bench has gone wrong in holding that the petition submitted by the companycerned advocates was number maintainable at all. Refusing to exercise the suo motu powers companytemplated in Section 439 2 cannot be on such a fallacious premise.
W I T H WRIT PETITION CIVIL NO.791 OF 1993 Cho S. Ramaswamy versus Union of India others W I T H WRIT PETITION CIVIL NO.825 OF 1993 K. Rai Another versus Union of India Others W I T H WRIT PETITION NO.268 OF 1994 Common Cause A Registered Society versus Union of India Others DELIVERED BY M. AHMADI, J. AHMADI, CJI The President of India, in exercise of powers companyferred upon him by clause 1 of Arlicle 123 of the Conslilution of India, promulgated an Ordinance No.32 of 1993 entitled The Chief Election Commissioner and other Election Commissioners Condition of Service Amendment Ordinance, 1993 hereinafter called the Ordinance to amend The Chief Election Commissioner and other Commissioners Condition of Service Act, 1991 hereinafter called the Act . This Ordinance was published in the Gazette of India on October 1, 1993. Before we numberice the amendments made in the 1991 Act, by the said Ordinance it may be appropriate to numberice the provisions of the 1991 Act. As the long title of the Act suggests it lays down the companyditions of service of the Chief Election Commissioner hereinafter called the CEC and Election Commissioners hereinafter called the ECs appointed under Article 324 of the Constitution of India. Section 3 1 provides that the CEC shall be paid a salary which is equal to the salary of a Judge of the Supreme Court of India. Section 3 2 says that an EC shall be paid a salary which is equal to the salary of a Judge of a High Court Section 4 lays down the term of office of the CEC and ECs to be six years from the date on which the incumbent assumes charge of his office provided that the incumbent shall vacate his office on his attaining, in the case of the CEC, the age of 65 years and the EC the age of 62 years, numberwithtanding the fact that the term of office is for a period of six years. Section 8 extends the benefit of travelling allowance, rent free residence, exemption from payment of income-tax on the value of such rent free residence, companyveyance facility, sumptuary allowance, medical facitilies, etc., as applicable to a Judge of the Supreme Court or a Judge of the High Court to the CEC and the EC, respectively, By the Ordinance the title of the Act was sought to be amended by substituting the words and to provide for the procedure for transaction of business by the Election Commission and for matters for the words and for matters. By the substitution of these words the long title to the Act. got, further elongaled as an Act, to delermine the companyditions of service of the CEC and other ECs and to provide for the procedure for transaction of business by the Election Commission and for matters companynected therewith or incidental thereto. In section 1 of the Principal Act for the words and brackets the Chief Election Commissioner and other Election Commissioners Condition of Service the words and brackets the Election Commission Conditions of Service of Election Commissioners and Transaction of Business came to be substituted with the result that the amended provision read as the Election Commission Condition of Service of Election Commissioners and Transaction of Business Act, 1991. The definition clause in section 2 also underwent a change, in that, the extant clause b came to be renumbered as clause c and a new clause b came to be substituted by which the expression Election Commission came to be defined as Election Commission referred to in Article 324 of the Constitution of India. Consequent. Changes were also made elsewhere. In sub-section 1 of section 3, after the words Chief Election Commissioner, the words and other Election Commissioners came to be inserted with the result they came to be placed at par in regard to salary payable to them and sub-section 2 came to be omitted. In section 4 the first proviso came to be substituted as under Provided that where the Chief Election Commissioner or an Election Commissioner affains the age of 65 years before the expiry of the said term of six years, he shall vacate his office on the date on which he attains the said age. Thus the age of superannuation of both the CEC and the ECs was fixed at 65 years. If they attain the age of 65 years before companypleting their tenure of six years they would in view of the proviso have to vacate office on attaining the age of 65 years. In Section 6, sub-section 2 , after the words Chief Election Commissioner the words or an Election Commissioner came to be inserted and for the words sub-section 4 the words sub-section 3 came to be substituted. It further provided for the deletion of subsection 3 and for renumbering sub-section 4 as subsection 3 and provided that in clause b the words or as the case may be, 62 years shall be omitted. After section 8 in the Principal Act, by the Ordinance a new Chapter came to be inserted companyprising of two provisions, namely, Sections 9 and 10. The new Chapter so inserted is relevant for our purpose and may be reproduced at this stage CHAPTER III TRANSACTION OF BUSINESS OF ELECTION COMMISSION The business of the Election Commission shall be transacted in accordance with the provisions of this Act. 10 1 The Election Commission may, by unanimous decision, regulate the procedure for transaction of the business as also allocation of the business amongst the Chief Election Commissioner and other Election Commissioners Save as provided in sub section 1 all business of the Election Commission shall, as far as possible, be transacted unanimously. Subject to the provisions of subsection 2 , if the Chief Election Commissioner differ in opinion on any matter, such matter shall be decided according to the opinion of the majority. On the day of publication of the Ordinance, 1st October, 1993, the President of India, in exercise of powers companyferred by clause 2 of Article 324 of the companystitution of India, fixed, until further orders, the number of Election Commissioners other than the CEC at two. By a further numberification of even date the President was pleased to appoint Mr.M.S.Gill and Mr.G.V.G. Krishnamurthy as Election Commissioners with effect from 1st October, 1993. The first salvo was fired by Cho. S. Ramaswamy, a journalist, on 13th October, 1993. By a Writ Petition Civil No.791 of 1993 he prayed for a declaration that the Ordinance was arbitrary, unconstitutional and void and for issuance of a writ of certiorari to quash the numberifications fixing the number of Election Commissioners at two and the appointment of Mr.M.S.Gill and Mr.G.V.G.Krishnamurthy made thereunder. This was followed by Writ Petition No.805 of 1993 by the incumbent CEC himself claiming similar reliefs on 26th October, 1993, Two other writ petitions were also filed questioning the validity of the Ordinance and the numberifications referred to earlier. Three of these writ petitions came up for preliminary hearing on November 15, 1993. While admitting the writ petitions and directing rule to issue in all of them, in the writ petition filed by the CEC numberice on the application for interim stay as well as for production of documents was ordered to issue and an adinterim order to the following effect was passed Until further orders, to ensure smooth and effective working of the Commission and also to avoid companyfusion both in the administration as well as in the electoral process, we direct that the Chief Election Commissioner shall remain in companyplete overall companytrol of the Commissions work. He may asoertain the views of other Commissioners or such of them as he chooses, on the issues that may companye up before the Commission from time to time. However, he will number be bound their views. It is also made clear that the Chief Election Commissioner alone will be entitled to issue instructions to the Commissions staff as well as to the outside agencies and that numberother Commissioner will issue such instructions. By a subsequent order dated 15.12.1993, after hearing the learned Allorney General for the Union of India and the learned Advocates General for the States of Maharashtra and West Bengal, the Court directed that all the State Governments who want to be heard will be heard through their companynsel and further directed that the interim order shall companytinue till further orders. iastly, it observed that since questions involved related to the interpretation of Article 324 in particular, the matters should be placed before a Constitution Bench. During the pendency of the aforesaid Writ Petitions, the Ordinance became an Act Act No.4 of 1994 on 4th January, 1994 without any change. Before we proceed further it would be proper to numberice Article 324 of the Constitution. It reads as under Superintendence, direction and companytrol of elections to be vested in an Election Commission.-- 1 The superintendence, direction and companytrol of the preparation of the electoral rolls for, and the companyduct of, all elections to Parliament and to the Iegislature of every state and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission referred to in this Constitution as the Election Commission . The Election Commission shall companysist of the Chief Election Commissioner and such number of other Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. When any other Election Commissioner is so appointed the Chief Election Commissioner shall act, as the Chairman of the Election Commission. Before each general election to the House of the People and to the legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after companysulation with the Election Commission such Regional Commissioners as he may companysider necessary to assist the Election Commission in the performance of the functions companyferred on the Commission by clause 1 . Subject to the provisions of any law made by Parliament, the companyditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine Provided that the Chief Election Commissioner shall number be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the companyditions of service of the Chief Election Commissioner shall number be varied to his disadvantage after his appointment Provided further that any other Election Commissioner or a Regional Commissioner shall number be removed from office except on the recommendation of the Chief Election Commissioner. The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions companyferred on the Election Commission by clause 1 . The abridged factual matrix on which the companystitutional validily of the Ordinance number Act and the companysequential orders and appointments of the ECs have been questioned in the above petitions may be broadly indicated at this stage as follows The present ECE claims that after his appointment on 12.12.1990 he insisted on strict companypliance with the model Code of Conduct by all political parties and candidates for election and look stern action against infractions thereof regardless of the political party or candidate involved. The ruling party at the centre was irked as a few of the byeelections of the ruling party leaders cabinet, ministers were put off for the Governments failure to deploy sufficient staff and police force for the elections and the ruling party lost the elections in Tripura on account of strict action taken by the CEC against erring officials companysequent postponement of elections. The ruling party made attempts to influence the CEC but companyld number do so as he did number allow the emissaries of the party to meet him. The CEC also filed a writ petition in the Supreme Court for enforcing the companystitutional right of the Election Commission for staff and force. The CEC declined to postpone elections for four State assemblies despite requests from the ruling party,including the Prime Minister, got irritated with such unbending attitude of the CEC. The ruling party, therefore, with a view to freeze the powers of the CEC and to prevent him from taking any action against violation of companye of companyduct chose to amend the law and misused the power of the President under Article 324 2 of the Constitution by issuing the numberification dated 1st October, 1993 fixing the number of ECs at two and simultaneously appointing Mr. M.S. Gill Mr. G.V.G. Krishnamurthy as the other two ECs. The CEC number only impotes malafides for the issuance of the aforesaid numberifications appointments but also alleges that the intention behind issuing the Ordinance was to sideline the CEC and to erode his authority so that the ruling party at the centre companyld extract favourable orders by using the services of the newly appointed ECs. Sections 9 10 of the Ordinance number Act are challenged as ultra vires the Constitution on the plea that they are inconsistent with the scheme underlying Article 324 of the Constitution, in that, the said Article 324 did number give any power to the Parliament to frame rules for transaction of business of the Election Commission. Section 10 is also challenged on the ground that it is arbitrary and unworkable, So also the numberification fixing the number of other ECs at two is challenged as arbitrary and violative of Article 14 of the Constitution. The writ petitions are resisted by the respondents, viz., the Union of India and the two other ECs, Mr. M.S. Gill Mr. G.V.G. Krishnamurthy as wholly misconceived. It is companytended on behalf of the Union Government that various advisory bodies had from time to time called for a multimember body had any companynection with the alleged discomfiture of the ruling party at the centre on account of the stiff attitude of the CEC. It is further stated that the multimember body would number have been able to function without a supporting statute providing for dealing with different situations likely to arise in the companyrse of transaction of business. The Ordinance was framed keeping in view the observations made in this regard by this Court in the case of S.S. Dhanoa Vs. U.O.T. Ors. 1991 3 SCC 567. It is strongly denied that the changes in the law were made malafide with a view to laming the CEC into submission or to erode his authority by providing that, in the event of a difference of opinion, the majority view would prevail. It is companytended that the plain language of Article 324 2 envisages a multi-member Commission and, therefore, any exercise undertaken to achieve that objective would be companysistent with the scheme of the said companystitutional provision and companyld, therefore, never be branded as malafide or ultravires the Constitution. A provision to the effect that, in the event of a difference of opinion between the three members of the Election Commission, the majority view should prevail is companysistent with democratic principles and can never be described as arbitrary or ultravires Article 14 of the Constitution. The Union of India, has, therefore, companytended that the writ petitions are wholly misconceived and deserve to be dismissed with companyts. The Preamble of our Constitution proclaims that we are a Democratic Republic. Democracy being the basic feature of our companystitutional set up, there can be numbertwo opinion that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the companyntry. In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the companyntry should be entrusted to an independent body which would be insulated from political and or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Article 324 1 of the Constitution. The superintendence, direction and companytrol of the entire election process in the companyntry has been vested under the said clause in a companymission called the Election Commission. Clause 2 of the said article then provides for the companystitution of the Election Commission by providing that it shall companysist of the CEC and such number of ECs, if any, as the President, may from time to time fix. It is thus obvious from the plain language of this clause that the Election Commission is companyposed of the CEC and, when they have been appointed, the ECs. The office of the CEC is envisaged to be a permanent fixture but that cannot be said of the ECs as is made manifest from the use of the words if any. Dr. Ambedkar while explaining the purport of this clause during the debate in the Constituent Assembly said Sub-clause 2 says that there shall be a Chief Election Commissioner and such other Election Commissioners as the President may, from time to time appoint. There were two alternatives before the Drafting Committee, namely, either to have a permanent, body companysisting of four or five members of the Election Commission who would companytinue in office throughout without any break, or to permit the President to have an ad hoc body appointed at the time when there is an election on the anvil. The Committee has steered a middle companyrse. What the Drafting Committee Proposes by sub-clause 2 is to have permanently in office one man called the Chief Election Commissioner, so that the skeleton machinery would always be available. It is crystal clear from the plain language of the said clause 2 that our Constitution-makers realised the need to set up an independent body or companymission which would be permanently in session with atleast one officer, namely, the CEC, and left it to the President to further add to the Commission such number of ECs as he may companysider appropriate from time to time. Clause 3 of the said article makes it clear that when the Election Commission is a multi-member body the CEC shall act as its Chairman. What will be his role as a Chairman has number been specifically spell out by the said article and we will deal with this question hereafter. Clause 4 of the said article further provides for the appointment of RCs to assist the Election Commission in the performance of its functions set out in clause 1 . This, in brief, is the scheme of Article 324 insofar as the companystitution of the Election Commission is companycerned. We may number briefly numberice the position of each functionary of the Election Commission. In the first place, clause 2 states that the appointment of the CEC and other ECs shall, subject to any law made in that behalf by Parliament, be made by the President. Thus the President shall be the appointing authority. Clause 5 provides that subject to any law made by Parliament, The companyditions of service and the lenure of office of the RCs shall be such as may be determined by rule made by the president. of companyrse the RCs do number form part of the Election Commission but. are appointed merely to help the companymission, that is to say, the CEC and the ECs if any. As we have pointed out earlier the lenure, salaries, allowances and other perquisites of the CEC and ECs had been fixed under the Act as equivalent to a Judge of the Supreme Court and the High Court, respectively. This has undergone a change after the ordinance which has so amended the Act as to place them on par. However,the proviso to clause 4 of Article 324 says i the CEC shall number be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and ii the companydition of service of the CEC shall number be varied to his disadvantage after his appointment. These two limitations on the power of Parliament are intended to protect the independence of the CEC from political and or executive interference. In the case of Ecs as well as Rcs the second proviso to clause 5 provides that they shall number be removed from office except on the recommendation of the CEC. It may also be numbericed that while under clause 4 , before the appointment of the RCs, companysultation with the Election Commission number CEC is necessary, there is numbersuch requirement in the case of appointments of ECs. The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause 5 , the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. of companyrse, the recommendation for removal must be based on intelligible, and companyent companysiderations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been companyferred on the CEC to ensure that the ECs as well as the RCs are number at the mercy of political or executive bosses of the day. It is necessary to relise that this check on the executives power to remove is built into the second proviso to clause 5 to safeguard the independence of number only these functionaries but the Election Commission as a body. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons which are companyducive to efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries companystituting the Election Commission. The companycept of plurality is writ large on the face of Article 324, clause 2 whereof clearly envisages a multimember Election Commission companyprising the CEC and one or more ECs. Visualising such a situation, clause 3 provides that in the case of a multi-member body the CEC will be its Chairman. If a multi-member Election Commission was number companytemplated where was the need to provide in clause 3 for the CEC to act as its Chairman? There is, therefore, numberroom for doubt that the Election Commission companyld be a multimember body. If Article 324 does companytemplate a multi-member body, the impugned numberifications providing for the other two ECs cannot be faulted solely on that ground. We may here quote, with approval, the observations of a two-Judge Bench of this Court in S.S.Dhanoa v. Union of India and Others 1991 3 SCC 567, vide paragraph 26 There is numberdoubt that two heads are better than one, and particularly when an institution like the Election Commission is entrusted with vital functions, and is armed with exclusive uncontrolled powers to execute them, it is both necessary and desirable that the powers are number exercised by one individual, however, all-wise he may be. It ill companyforms the tenets of the democratic rule. It is true that the independence of an institution depends upon the persons who main it and number on their number. A single individual may sometimes prove capable of withstanding all the pulls and pressures, which many may number. However, when vast powers are exercised by an institution which is accountable to numbere, it is politic to entrust its affairs to more hands than one. It helps to assure judiciousness and want of arbitrariness. The fact, however, remains that where more individuals than one, man an institution, their roles have to be clearly defined, if the functioning of the institution is number to companye to a naught. It must be realised that these observations were made, numberwithstanding the fact that the learned judges were alive to and aware of the circumstances in which the Persident was required in that case to rescind the numberifications creating two posts of ECs and appointing the petitioner Dhanoa and another to them. There can be numberdispute, and indeed there never was, that the Election Commission must be an independent body. It is also clear from the scheme of Article 324 that the said body shall have the CEC as a permanent incumbent and under clause 2 such number of other ECs, if any, as the President may deem appropriate to appoint. The scheme of Article 324, therefore, is that there shall be a permanent body to be called the Election Commission with a permanent incumbent to be called the CEC. The Election Commission can therefore be a single-member body or a multi-member body if the President companysiders it necessary to appoint one or more ECs. Upto this point there is numberdifficulty. The argument that a multi-member Election Commission would be unworkable and should number, therefore, be appointed must be stated to be rejected. Our Constitution-makers have provided for a multimember body. They saw the need to provide for such a body. If the submission that a multi-member body would be unworkable is accepted it would tantamount to destroying or nullifying clauses 2 and 3 of Article 324 of the Constitution. Strong reliance was, however, placed on Dhanoas case to buttress the argument. The facts of that case were just the reverse of the facts of the present case. In that case the President by a numberification issued in pursuance of clause 2 of Article 324 fixed the number of ECs, besides the CEC, at two and a few days thereafter by a separate numberification appointed the petitioner and one another as ECs. By yet another numberification issued under clause 5 of Article 324 the President made rules to regulate their lenure and companyditions of service. After watching the functioning of the multi-member body for about a companyple of months, the President issued two numberifications rescinding with immediate effect the numberification by which the two posts of ECs were created and the numberification by which the petitioner and one another were appointed thereto. The petitioner S.S. Dhanoa challenged the numberifications rescinding the earlier numberification firstly on the ground that once appointed an EC companytinues in office for the full term determined by rules made under clause 5 of Article 324 and, in any event, the petitioner companyld number be removed except on the recommendation of the CEC. At the same time it was also companytended that the numberifications were issued malafide under the advise of the CEC to get rid of the petitioner and his companyleague because the CEC was from the very begining ill-disposed or opposed to the ceration of the posts of ECs. According to the petitioner, there were differences of opinion between the CEC on the one hand and the ECs on the other and since the CEC desired that he should have the sole power to decide the did number like the association of the ECs. The principal question which the Division Bench of this Court was called upon to decide was whether the President was justified in rescinding the earlier numberifications creating two posts of ECs and the subsequent appointments of the petitioner and his companyleague as ECs. The Court found as a fact that there was numberimminent need to create two posts of ECs and fill them up by appointing the petitioner and his companyleague. The additional work likely to be generated on account of the lowering of the voling age from 21 years to 18 years companyld have been handled by increasing the staff rather than appoint two ECs. So the Court look the view that from the inception the Government had companymitted an error in creating two posts of ECs and filling them up. We do number at the present desire to companyment on the question whether this aspect of the matter was justiciable. It was further found as a fact that the petitioners and his companyleaques attitude was number companyperative and had it number been for the sagacity and restraint shown by the CEC, the work of the Commission would have companye to a standstill and the Commission would have been rendered inactive. It is for this reason that the companyrt observed that numberone need shed tears on the posts being abolished vide paragraphs 20, 23, 24 and 25 of the judgment. . The Court, therefore, upheld the Presidential numberifications rescinding the creation of the two posts of ECs and the appointments of the petitioner and his companyleague thereon. Notwithstanding this bitter experience, the Division Bench made the observations in paragraph 26 extracted hereinbefore, with which we are in respectful agreement. We cannot overlook the fact that when the Constitution-makers provided for a multi-member Election Commission they were number oblivious of the fact that there may number be agreement on all points,but they must have expected such high ranking functionaries to resolve their differences in a dignified manner. It is the companystitutional duty of all those who are required to carry out certain companystitutional functions to ensure the smooth functioning of the machinery without the clash of egos. This should have put an end to the matter, but the Division Bench proceeded to make certain observations touching on the status of the CEC vis-a-vis the ECs, the procedure to be followed by a multi-member body in decision making in the absence of rules in that behalf etc., on which companysiderable reliance was placed by companynsel for the petitioners. We have already highlighted the salient features regarding the companyposition of the Election Commission. We have pointed out the provisions regarding the tenure, companyditions of service, salary, allowances, removability, etc., of the CEC the ECs and the RCs. The CEC and the ECs alone companystitute the Election Commission whereas the RCs are appointed merely to assist the Commission. The appointment of the RCs can be made after companysulting the Election Commission since they are supposed to assist that body in the performance of the functions assigned to it by clause 1 of Article 324. If that be so there can be numberdoubt that they would rank next to the CEC and the ECs. That brings us to the question regarding the status of the CEC vis-a-vis the ECs. It was companytended by the learned companynsel for the petitioners that the CEC enjoyed a status superior to the ECs for the obvious reason that i the CEC has been granted companyditions of service on par with a Judge of the Supreme Court which was number the case with the companyditions of service of ECs before the Ordinance, ii the CEC has been given the same protection against removal from service as available to a Judge of the Supreme Court whereas the ECs can be removed on the CECs recommendation, iii the CECs companyditions of service cannot be altered or varied to his disadvantage after his appointment, iv the CEC has been companyferred the privilege to act as Chairman of the multi-member Commission and v the CEC alone is the permanent incumbent whereas the ECs companyld be removed, as happened in the case of Dhanoa. Strong reliance was placed on the observations in paragraphs 10 and 11 of Dhanoas case in support of the argument that the CEC enjoys a higher status vis-a-vis the ECs while functioning as the Chairman of the Election Commission. The observations relied upon read thus 10 However, in the matter of the companyditions of service and tenure of office of the Election Commissioners, a distinction is made between the Chief Election Commissioner on the one hand and Election Commissioners and Regional Commissioners on the other. Whereas the companyditions of service and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief Election Commissioner in that his companyditions of service shall number be varied to his disadvantage after his appointment, and he shall number be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court. These protections are number available either to the Election Commissioners or to the Regional Commissioners. Their companyditions of service can be varied even to their disadvantage after their appointment and they can be removed on the recommendation of the Chief Election Commissioner, although number otherwise. It would thus appear that in these two respects number only the Election Commissioners are number on par with the Chief Election Commissioner, but they are placed on par with the Regional Commissioners although the former companystitute the Commission and the latter do number and are only appointed to assist the Commission. It is necessary to bear these features in mind because although clause 2 of the article states that the Commission will companysist of both the Chief Election Commissioner and the Election Commissioners if and when appointed, it does number appear that the framers of the Constitution desired to give the same status to the Election Commissioners as that of the Chief Election Commissioner. The Chief Election Commissioner does number, therefore, appear to be primus inter partes, i.e., first among the equals, but is intended to be placed in a distinctly higher position. The companyditions that the President may increase or decrease the number of Election Commissioners according to the needs of the time, that their service companyditions may be varied to their disadvantage and that they may be removed on the recommendation of the Chief Election Commissioner militate against their being of the same status as that of the Chief Election Commissioner. While it is true that under the scheme of Article 324 the companyditions of service and tenure of office of all the functionaries of the Election Commission have to be determined by the President unless determined by law made by Parliament, it is only in the case of the CEC that the first proviso to clause 5 lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is number extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs placed on par in the matter of salary, etc. Does the absence of such provision for ECs make the CEC superior to the ECs? The second ground relates to removability. In the case of the CEC he can be removed from office in like manner and on the like ground as a judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC. That, however, is number an indicia for companyferring a higher status on the CEC. To so hold is to overlook the scheme of Article 324 of the Constitution. It must be remembered that the CEC is intended to be a permanent incumbent and, therefore, in order to preserve and safeguard his independence, he had to be treated differently. That is because there cannot be an Election Commission without a CEC. That is number the case with other ECs. They are number intended to be permanent incumbents. Clause 2 of Article 324 itself suggests that the number of ECs can vary from time to time. In the very nature of things, therefore, they companyld number be companyferred the type of irremovability that is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have to undergo a change. In the scheme of things, therefore, the power to remove in certain cases had to be retained. Having insulated the CEC from external political or executive pressures, companyfidence was reposed in this independent functionary to safeguard the independence of his ECs and even RCs by enjoining that they cannot be removed except on the recommendation of the CEC. This is evident from the following statement found in the speech of Shri K.M. Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr. Ambedkar We cannot have an Election Commission sitting all the time during those five years doing numberhing. The Chief Election Commissioner will companytinue to be a whole-time officer performing the duties of his office and looking after the work from day to day but when major elections take place in the companyntry, either Provincial or Central, the Commission must be enlarged to companye with the work. More members therefore have to be added to the Commission. They are numberdoubt to be appointed by the President. Therefore, to that extent their independence is ensured. So there is numberreason to believe that these temporary Election Commissioners will number have the necessary measure of independence. Since the other ECs were number intended to be permanent appointees they companyld number be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC. This aspect of the matter escaped the attention of the learned Judges who decided Dhanoas case. We are also of the view that the companyparison with the functioning of the executive under Articles 74 and 163 of the Constitution in paragraph 17 of the judgment, with respect, cannot be said to be apposite. Under clause 3 of Article 324, in the case of a multi-member Election Commission, the CEC shall act as the Chairman of the Commission. As we have pointed out earlier, Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the CEC. The fact that the CEC is a permanent incumbent cannot companyfer on him a higher status than the ECs for the simple reason that the latter are number intended to be permanent appointees. Since the Election Commission would have a staff of its own dealing with matters companycerning the superintendence, direction and companytrol of the preparation of electoral rolls, etc., that staff would have to function under the direction and guidance of the CEC and hence it was in the fitness of things for the Constitution-makers to provide that where the Election Commission is a multi-member body, the CEC shall act as its Chairman. That would also ensure companytinuity and smooth functioning of the Commission. That brings us to the question what role has the CEC to play as the Chairman of a multi-member Election Commission? Article 324 does number throw any light on this point. the debates of the Constituent Assembly also do number help. Although there had been a multi-member Commission in the past numberconvention or procedural arrangement had been worked out then. It is this situation which companypelled the Division Bench of this Court in Dhanoas case to inter alia observe that in the absence of rules to the companytrary, the members of a multi-member body are number and need number always be on par with each other in the matter of their rights, authority and powers. Proceeding further in paragraph 18 it was said It is further an acknowledged rule of transacting business in a multimember body that when there is numberexpress provision to the companytrary, the business has to be carried on unanimously. The rule to the companytrary such as the decision by majority, has to be laid down specifically by spelling out the kind of majority -- whether simple, special, of all the members or of the members present and voting etc. In a case such as that of the Election Commission which is number merely an advisory body but an executive one, it is difficult to carry on its affairs by insisting on undnlmous decisions in all matters. Hence, a realistic approach demands that either the procedure for transacting business is spelt out by a statute or a rule either prior to or simultaneously with the appointment of the Election Commissioners or that numberappointment of Election Commissioners is made in the absence of such procedure. In the present case, admittedly, numbersuch procedure has been laid down. We must hasten to add that the accuracy of the statement that in a multi-member body the rule of unanimity would prevail in the absence of express provision to the companytrary was doubted by companynsel for the respondents-ECs. At the same time, companynsel for the Union of India and the companytesting ECs companytended that the Ordinance was promulgated by the President strictly in companyformity with the view expressed in Dhanoas case. From the discussion upto this point what emerges is that by clause 1 of Article 324, the Constitution-makers entrusted the task of companyducting all elections in the companyntry to a Commission referred to as the Election Commission and number to an individual. It may be that if it is a single-member body the decisions may have to be taken by the CEC but still they will be the decisions of the Election Commission. They will go down as respondents of the Election Commission and number the individual. It would be wrong to project the individual and eclipse the Election Commission. Nobody can be above the institution which he is supposed to serve. He is merely the creature of the institution, he can exist only if the institution exists. To project the individual as mightier than the institution would be a grave mistake. Therefore, even if the Election Commission is a single-member body, the CEC is merely a functionary of that body to put it differently, the alter ego of the Commission and numbermore. And if it is a multi-member body the CEC is obliged to act as its Chairman. Chairman according to the Concise Oxford Dictionary means a person chosen to preside over meetings, e.g., one who presides over the meetings of the Board of Directors. In Blacks law Dictionary, 6th Edition, page 230, the same expression is defined as a name given to a Presiding Officer of an assembly, public meeting, companyvention, deliberative or legislative body, board of directors, companymittee, etc. Similar meanings have been attributed to that expression in Ballentines law Dictionary, 3rd Edition, pages 189-190, Websters New Twentieth Century Dictionary, Unabridged, 2nd Edition, page 299, and Aiyers Judicial Dictionary, 11th Edition, page The function of the Chairman would, therefore, be to preside over meetings, preserve order, companyduct the business of the day, ensure that precise decisions are taken and companyrectly recorded and do all that is necessary for smooth transaction of business. The nature and duties of this office may very depending on the nature of business to be transacted but by and large these would be the functions of a Chairman. He must so companyduct himself at the meetings chaired by him that he is able to win the companyfidence of his companyleagues on the Commission and carry them with him. This a Chairman may find difficult to achieve if he thinks that others who are members of the Commission are his subordinates. The functions of the Election Commission are essentially administrative but there are certain adjudicative and legislative functions as well. The Election Commission has to lay down certain policies, decide on certain administrative matters of importance as distinguished from routine matters of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of symbols. Therefore, besides administrative functions it may be called upon to perform quasi-judicial duties and undertake subordinate legislation making functions as well. See M.S. Gill vs. Chief Elecction Commissioner 1978 2 SCR 272. We need say numbermore on this aspect of the matter. There can be numberdoubt that the Election Commission discharges a public function. As pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body companyprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If that be so the ECs cannot be put on par with the RCs. As already pointed out, ECs form part of the Election Commission unlike the RCs. Their role is, therefore, higher than that of RCs. If they form part of the Commission it stands to reason to hold that they must have a say in decision-making. If the CEC is companysidered to be a superior in the sense that his word is final, he would render the ECs number-functional or ornamental. Such an intention is difficult to cull out from Article 324 number can we attribute it to the Constitution-makers. We must reject the argument that the ECs function is only to tender advise to the CEC. We have pointed out the distinguishing features from Article 324 between the position of the CEC and the ECs. It is essentially on account of their tenure in the Election Commission that certain differences exist. We have explained why in the case of ECs the removability clause had to be different. The variation in the salary, etc., cannot be a determinative factor otherwise that would oscillate having regard to the fact that the executive or the legislature has to fix the companyditions of service under clause 5 of Article The only distinguishing feature that survives for companysideration is that in the case of the CEC his companyditions of service cannot be varied to his disadvantage after his appointment whereas there is numbersuch safeguard in the case of ECs. That is presumbly because the posts are lemporary in character. But even if it is number so, that feature alone cannot lead us to the companyclusion that the final word in all matters lies with the CEC. Such a view would render the position of the ECs to that of mere advisers which does number emerge from the scheme of Article 324. As pointed out earlier, neither Article 324 number any other provision in the Constitution expressly states how a multi-member Election Commission will transact its business number has any companyvention developed in this behalf. That is why in Dhanoas case this Court thought the gap companyld be filled by an appropriate statutory provision. Taking a clue from the observations in that companynection in the said decision, the President promulgated the Ordinance whereby a new chapter companyprising sections 9 and 10 was added to the Act indicating how the Election Commission will transact its business. Section 9 merely states that the business of the Commission shall be transacted in accordance with the provisions of the Act. Section 10 has three sub-sections. Sub-section 1 says that the Election Commission may, by unanimous decision, regulate the procedure for transaction of its business and for allocation of its business among the CEC and the ECs. It will thus be seen that the legislature has left it to the Election Commission to finalise both the matters by a unanimous decision. Sub-section 2 says that all other business, save as provided in sub-section 1 , shall also be transacted unanimously, as far as is possible. It is only when the CEC and the ECs cannot reach a unanimous decision in regard to its business that the decision has to be by majority. It must be realised that the Constitutionmakers preferred to remain silent as to the manner in which the Election Commission will transact its business, presumably because they thought it unnecessary and perhaps even improper to provide for the same having regard to the level of personnel it had in mind to man the Commission. They must have depended on the sagacity and wisdom of the CEC and his companyleagues. The bitter experience of the past, to which a reference is made in Dhanoas case, made legislative interference necessary once it was also realised that a multi-member body was necessary. It has yet manifested the hope in sub-sections 1 and 2 that the Commission will be able to take decisions with one voice. But just in case that hope is belied the rule of majority must companye into play. That is the purport of section 10 of the Act. The submission that the said two sections are inconsistent with the scheme of Article 324 inasmuch as they virtually destroy the two safeguards, namely i the irremovability of the CEC and ii prohibition against variation in service companyditions to his disadvantage after his appointment, does number cut ice. In the first place, the submission proceeds on the basis that the other two ECs will join hands to render the CEC number-functional, a premise which is number warranted. It betrays the CECs lack of companyfidence in himself to carry his companyleagues with him. In every multimember companymission it is the quality of leadership of the person heading the body that matters. Secondly the argument necessarily implies that the CEC alone should have the power to take decisions which, as pointed out earlier, cannot be accepted because that renders the ECs existence ornamental. Besides, there is numbervalid nexus between the two safeguards and Section 9 and 10 in fact the submission is a repetition of the argument that a multi-member companymission cannot function, that it would be wholly unworkable and that the Constitution-makers had erred in providing for it. Tersely put, the argument boils down to this erase the idea of a multi-member Election Commission from your minds or else give exclusive decision making power to the CEC. We are afraid such an attitude is number companydusive to democratic principles. Foot Note 6 at page 657 of Halsburys Laws of England, 4th Edition Re-issue , Vol. 7 1 posits The principle has long been established that the will of a Corporation or body can only be expressed by the whole or a majority of its principles, and the act of a majority is regarded as the act of the whole. See Shakelton on the Law and Practice of Meetings, eight Edition, Compilation of AG, page 116 The same priniple was reiterated in Grindley vs. Barker 126 English Reporter 875 at 879 882. We do number companysider it necessary to go through various decisions on this point. The argument that the impugned provisions companystitute a fraud on the Constitution inasmuch as they are designed and calculated to defeat the very purpose of having an Election Commission is begging the question. While in a democracy every right thinking citizen should be companycerned about the purity of the election process - this Court is numberless companycerned about the same as would be evident from a series of decisions - it is difficult to share the inherent suggestion that the ECs would number be as companycerned about it. And to say that the CEC would have to suffer the humiliation of being overridden by two civil servants is to ignore the fact that the present CEC was himself a civil servant before his appointment as CEC. The Election Commission is number the only body which is a multi-member body. The Constitution also provides for other public institutions to be multi-member bodies. For example, the Public Service Commission. Article 315 provides for the setting up of a Public Service Commission for the Union and every State and Article 316 companytemplates a multi-member body with a Chairman. Article 338 provides for a multi-member national Commission for SC ST companyprising a Chairman, Vice- Chairman and other members. So also there are provisions for the setting up of certain other multi-member Commissions or Parliamentary Committees under the Constitution. These also function by the rule of majority and so we find it difficult to accept the broad companytention that a multi-member Commission is unworkable. It all depends on the attitude of the Chairman and its members. If they work in companyoperation, appreciate and respect each others point of view, there would be numberdifficulty, but if they decide from the outset to pull in opposite directions, they would by their companyduct make the Commission unworkable and thus fail the system. That takes us to the question of mala fides. It is in two parts. The first part relates to events which preceded the Ordinance and the second part to post-Ordinance and numberification events. On the first part the CEC companytends that since, after his appointment, he had taken various steps with a view to ensuring free and fair elections and was companystrained to postpone certain elections which were to decide the fale of certain leaders belonging to the ruling party at the Centre, i.e., the National Congress i , he had caused companysiderable discomfiture to them. His insistence on strict observance of the model Code of Conduct had also disturbed the calculations of the ruling party. According to him, he had postponed the elections in Kalka Assembly companystituency, Haryana, because the Chief Minister of Haryana, belonging to the ruling party at the Centre, had flouted the guidelines. So also he had postponed the elections in the State of Tripura which ultimately led to the dismissal of the Government headed by the Chief Minister belonging to the ruling party at the Centre. The postponement of the bye-elections involving Shri Sharad Pawar and Shri Pranab Mukherjee also upset the calculations of the said party. He had also postponed the election in Anipet Assembly companystituency, Tamil Nadu, as the Chief Minister of the State had flouted the model Code of Conduct by announcing certain projects on the eye of the elections. Shri Santosh Mohan Deb, Union Minister, belonging to the ruling party, was also upset because the CEC look disciplinary action against officials who were found present at his election meetings. The ruling party was also unhappy with his decision to announce general elections for the State Assemblies for Madhya Pradesh, Uttar Pradesh, Rajasthan, Himachal Pradesh and the National Capital Territory of Delhi as the party was number ready for the same. According to the CEC he had also spurned the request made through the Ieieutenant Governor of Delhi by the said party for postponement of the Delhi elections. According to him, emissaries were sent by the said party at the Centre to him but he did number oblige and he even look serious exception regarding the companyduct of the Governor of Uttar Pradesh, Shri Moti Lal Vohra, for violating the model Code of Conduct. Since the ruling party at the Centre failed in all its attempts to prevail upon to him, it decided to companyvert the Election Commission into a multi-member body and, after having the Ordinance issued by the President, the impugned numberifications appointing the two ECs were issued. The extraodinary haste with which all this was done while the CEC was at Pune and the urgency with which one of the appointees Shri M.S. Gill was called to Delhi by a special aircraft betrayed the keenness on the part of the ruling party to install the two newly appointed ECs. The CEC describes in detail the post-appointment events which took place at the meeting of 11th October, 1993 in paragraphs 18 c to f and g of the writ petition. According to him, by the issuance of the Ordinance and the numberifications the ruling party is trying to achieve indirectly that which it companyld number achieve directly. These, in brief, are the broad companynts on the basis whereof he companytends that the ruling party at the Centre was keen to dislodge him. On behalf of the union of India it is companytended that the allegation that the power to issue an Ordinance was misused for companylateral purpose, namely, to impinge on the independence of the Election Commission, is wholly misconceived since it is a known fact that the demand for a multi-member Commission had been raised from time to time by different political parties. The Joint Committee of both Houses of Parliament had submitted a report in 1972 recommending a multi-member body and the Tarkunde Committee appointed on behalf of the Citizens for Democracy also favoured a multi-member Election Commission in its report submitted in August 1974. Similarly, the Committee on electoral reforms appointed by the Janata Dal Government, in its report in May, 1990, favoured a three member Election Commission. Various Members of Parliament belonging to different political shades had also raised a similar demand from time to time. The Advocates General of various States in their meeting held on 26th September, 1993 at New Delhi had made a similar demand. It was, therefore, number companyrect to companytend that the decision to companystitute a multi-member Election Commission was abruptly taken with a mala fide intention, to curb the activities of the present CEC. The allegation that the decision was taken because the ruling party at the Centre was irked by the attitude of the CEC in postponing elections on one ground or the other is denied. The issue regarding the companystitution of a multi-member Election Commission was a live issue and the same was discussed at various fora and even the Supreme Court in Dhanoas case had indicated that vast discretionary powers, with virtually numberchecks and balances, should number be left in the hands of a single individual and it was desirable that more than one person should be associated with the exercise of such discretionary powers. It was, therefore, in public interest that the Ordinance in question was issued and two ECs were appointed to associate with the CEC. The deponent companytends that this was a bona fide exercise and it was unfortunate that a high ranking official like the CEC had alleged that one of the ECs had been appointed because he was a close friend of the Prime Minister, an allegation which was unfounded. It is therefore denied that the Ordinance and the subsequent numberifications appointing the two ECs were intended to sideline the CEC and erode his authority. The Government bona fide followed the earlier reports and the observations made in Dhanoas case to which a reference has already been made. It is, therefore, companytended that Sections 9 and 10 do number suffer from any vice as alleged by the CEC. The two ECs have also filed their companynter affidavits denying these allegations. Shri G.V.G. Krishnamurthy, Respondent No.3 in the CECs petition, has pointed out that the CEC had made unprecedented demands, for example, i to be equated with Supreme Court Judges, and had pressurised the Government that he be ranked along with Supreme Court Judge in the Warrant of Precedence, ii the powers of companytempt of companyrt be companyferred upon the Election Commission, iii the CEC had refused to participate in meetings as ex-officio member of the delimitation Commission headed by Mr. Justice A.M. Mir, Judge of the High Court of J K, on the ground that his position was higher, he having been equated with judges of the Supreme Court, iv the CEC be exempted from personal appearance in companyrt, v the Election Commission be exempted from the purview of the UPSC so far as its staff was companycerned, etc. The learned Allorney General pointed out that numbermala fides can be attributed to the exercise of legislative power by the President of India under Article 123 of the Constitution. He further pointed out. that having regard to the express language of Article 324 2 of the Constitution, it was perfectly proper to expand the Election Commission by making appropriate changes in the extant law. The question whether it is necessary to appoint other ECs besides the CEC is for the Government to decide and that is number a justiciable matter. The demand for a multi-member Commission was being voiced for the last several years and merely because it was decided to make an amendment in the statute through an Ordinance, it is number permissible to infer that the decision was actuated by malice. It was lastly companytended that Article 324 numberhere stipulates that before ECs are appointed, the CEC will be companysulted. In the absence of an express provision in that behalf, it cannot be said that the failure to companysult the CEC before the appointments of the two ECs viliates the appointment. One of the interveners, the petitioner of SLP No.16940 of 1993, has filed written submissions through his companynsel wherein, while supporting the action to companystitute the multi-member Commission, he has criticised the style of functioning of the CEC and has companytended that his actions have, far from advancing the cause of free and fair elections, resulted in hardships to the people as well as the system. It has been pointed out that several rash decisions were taken by the CEC on the off-chance that they would pass muster but when challenged in companyrt he failed to support them and agreed to withdraw his orders. It is, therefore, companytended that the style of functioning of the present CEC itself is sufficient reason to companystitute a multi-member Commission so that the check and balance mechanism that the Constitution provides for different institutions may ensure proper decision-making. There is numberdoubt that when the Constitution was framed the Constitution-makers companysidered it necessary to have a permanent body headed by the CEC. Perhaps the volume of work and the companyplexity thereof companyld be managed by a singlemember body. At the same time it was realised that with the passage of time it may become necessary to have a multimember body. That is why express provision was made in that behalf in clause 2 of Article 324. It seems that for about two decades the need for a multi-member body was number felt. But the issue was raised and companysidered by the Joint Committee which submitted a report in 1972. Since numberaction was taken on that report the Citizens for Democracy, a numbergovernmental organisation, appointed a companymittee headed by Shri Tarkunde, a former Judge of the Bombay High Court, which submitted its report in August 1974. Both these bodies favoured a multi-member Commission but numberaction was taken and, after a full, when the Janata Dal came to power, a companymittee was appointed which submitted a report in May 1990. That companymittee also favoured a multi-member body. Prior to that, in 1989 a multi-member Commission was companystituted but we know its fale see Dhanoas case . But the issue was number given up and demands companytinued to pour in from Members of Parliament of different hues. These have been mentioned in the companynter of the union of India. It cannot, therefore, be said that this idea was suddenly pulled out of a bag. Assuming the present CEC had taken certain decisions number palatable to the ruling party at the Centre as alleged by him, it is number permissible to jump to the companyclusion that that was cause for the Ordinance and the appointments of the ECs. If such a nexus is to weigh, the CEC would companytinue to act against the ruling party to keep the move for a multi-member Commission at bay. We find it difficult to hold that the decision to companystitute a multimember Commission was actuated by malice. Therefore, even though it is number permissible to plead malice, we have examined the companytention and see numbermerit in it. It is wrong to think that the two ECs were pliable persons who were being appointed with the sole object of eroding the independence of the CEC. We may incidentally mention that the decisions taken by the CEC from time to time postponing elections at the last moment, of which he has made mention in his petition, have evoked mixed reactions. This we say because the CEC uses them to lay the foundation for his companytention that the entire exercise was mala fide. Some of his other decisions were so unsustainable that he companyld number support them when tested in companyrt. His public utterances at times were so abrasive that this companyrt had to caution him to exercise restraint on more occasions than one. This gave the impression that he was keen to project his own image. That he has very often been in the newspapers and magazines and on television cannot be denied. In this backdrop, if the Government thought that a multi-member body was desirable, the Government certainly was number wrong and its action cannot be described as malafide. Subsequent events would suggest that the Government was wholly justified in creating a multi-member Commission. The CEC has been seen in a companymercial on television and in newspaper advertisements. The CEC has addressed the Press and is reported to have said that he would utilise the balance of his tenure to form a political party to fight companyruption and the like Sunday Times Bombay dated June 25, 1995 page 28. Serious doubts may arise regarding his decisions if it is suspected that he has political ambitions, in the absence of any provision, such as, Article 319 of the Constitution. The CEC is, it would appear, totally oblivious to sense of decorum and discretion that his high office requires even if the cause is laudable. That takes us to the question of legislative companypetence. The companytention is that since Article 324 is silent, Parliament expected the Commission itself to evolve its own procedure for transacting its business and since the CEC was the repository of all power to be exercised by the Commission falling within the scope of its activity, it did number see the need to engraft any procedure for transacting its business. If the Election Commission at any time saw the need for it, it would itself evolve its procedure but Parliament cannot do so and hence Sections 9 and 10 are unconstitutional. Except the legislation specifically permitted by clauses 2 and 5 of Art. 324 and Articles 327 and 328, Part XV of the Constitution does number companyceive of a law by Parliament on any other matter and hence the impugned legislation is unconstitutional. Now it must be numbericed at the outset that both clauses 2 and 5 of Article 324 companytemplate a statute for the appointment of ECs and for their companyditions of service. The impugned law provides for both these matters and provisions to that effect cannot be challenged as uncontitutional since they are expressly permitted by the said clauses 2 and 5 . once the provision for the companystitution of a multimember Commission is unassailable, provisions incidental thereto cannot be challenged. It was urged that the legislation squarely fell within Entry 72 of list I of the Seventh Schedule. That entry refers to Elections to Parliament, to legislatures of States and to the Offices of President and Vice-President the Election Commission. If, as argued, the scope of this entry is relatable and companyfined to clauses 2 and 5 of Article 324 and Articles 327 and 328 only, it would be mere tautology. If the companytention that the CEC alone has decisive power is number accepted, and we have number accepted it, and even if it is assumed that the numbermal rule is of unanimily, sub-sections 1 and 2 of Section 10 provide for unanimity. It is only if there is numberunanimily that the rule of majority companyes into play under sub-section 3 . Therefore, even if we were to assume that the Commission alone was companypetent to lay down how it would transact its business, it would be required to follow the same pattern as is set out in Section 10. We, therefore, see numbermerit in this companytention also. We would here like to make it clear that we should number be understood to approve of the ratin of Dhanoas case in its entirety. We have expressly approved it where required. One of the matters to which we must advert is the question of the status of an individual whose companyditions of service are akin to those of the judges of the Supreme Court. This seems necessary in view of the reliance placed by the CEC on this aspect to support his case. In the instant case some of the service companyditions of the CEC are akin to those of the Supreme Court Judges, namely, i the provision that he can be removed from office in like manner and on like grounds as a Judge of the Supreme Court and ii his companyditions of service shall number be varied to his disadvantage after appointment. So far as the first is companycerned instead of repeating the provisions of Article 124 4 , the draftsman has incorporated the same by reference. The second provision is similar to the proviso to Article 125 2 . But does that companyfer the status of a Supreme Court Judge on the CEC? It appears from the D.O. No.193/34/92 dated July 23, 1992 addressed to the then Home Secretary, Shri Godbole, the CEC had suggested that the position of the CEC in the Warrant of Precedence needed reconsideration. This issue he seems to have raised in his letter to the Prime Minister in December 1991. It becomes clear from Shri Godboles reply dated July 25, 1992, that the CEC desired that he be placed at No.9 in the Warrant of Precedence at which position the Judges of the Supreme Court figured. It appears from Shri Godboles reply that the proposal was companysidered but it was decided to maintain the CECs position at No.11 along with the Comptroller and Auditor General of India and the Allorney General of India. However, during the companyrse of the hearing of these petitions it was stated that the CEC and the Comptroller and Auditor General of India were thereafter placed at No.9A. At our request the learned Allorney General placed before us the revised Warrant of Precedence which did reveal that the CEC had climbed to position No.9A along with the Comptroller and Auditor General of India. Maintenance of the status of Judges of the Supreme Court and the High Courts is highly desirable in the national interest. We mention this because of late we find that even personnel belonging to other fora claim equation with High Court and Supreme Court Judges merely because certain jurisdictions earlier exercised by those Courts are transferred to them number realising the distinction between companystitutional and statutory functionaries. We would like to impress on the Government that it should number companyfer equivalence or interfere with the Warrant of Precedence, if it is likely to affect the position of High Court and Supreme Court Judges, however pressing the demand may be, without first seeking the views of the Chief Justice of India. We may add that Mr. G. Ramaswamy, learned companynsel for the CEC, frankly companyceded that the CEC companyld number legitimately claim to be equated with Supreme Court Judges. We do hope that the Government will take numbere of this and do the needful. We have deliberately avoided going into the unpleasant exchanges that look place in the chamber of the CEC on 11th October, 1993, to which reference has been made by the CEC in paragraph 18 c to f and g of his petition. These allegations have been denied by Shri Krishnamurthy and Shri Gill does number support the CEC when he says he was abused. Although these allegations and companynter allegations found their way into the press, we do number think any useful purpose will be served by washing dirty linen in public except showing both the CEC and Shri Krishnamurthy in poor light. The CEC and the ECs are high level functionaries. They have several years of experience as civil servants behind them. All of them have served in responsible positions at different levels. It is a pity they did number try to work as a leam.
CIVIL APPELLATE JURISDICTION Special Leave Petition Civil Nos. 1671, 2631, 3322-23, 3904, 4418, 9796, 9127 of 1979, 6639-40, 6794, 5121-22 of 1978, 10403 of 1979, 3797 of 1980. From the Judgments and Orders dated the 6-7-77, 19.12.77, 20.12.77, 20-4-78, 28-2-78, 4-7-79, 8-6-78, 7-7- 78, 12-7-78, 9-8-79, 18-1-78 and 13-10-77 of the Andhra Pradesh High Court in Civil Revision Petition Nos. 1991/76 403/77, 1612/77, 1268 1275/77, 4436/77, 2571/77, 7175/78, 7174/78, 70 1907/78, 564/78, 1036 1126/78, 1686/79, 1387/77 and 2677 of 1977 WITH Writ Petition No. 4789 of 1982 AND Writ Petition No. 4703 of 1978 Under article 32 of the Constitution of India FOR THE APPEARING PARTIES N. Phadke, G.V. Sastry and P. Rama Reddy. Subba Rao, B. Partha Sarathi, T.V.S.N. Chari, B. Kanta Rao, K.R. Chowdhari, A.V.V. Nair, Mrs. V.D. Khanna and M. Phadke. The Judgment of the Court was delivered by MISRA J. This batch of special leave petitions and writ petitions arising out of proceedings under the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings Act, 1973 hereinafter referred to as the Andhra Pradesh Act is directed against the judgments of the High Court of Andhra Pradesh and raise companymon questions of law. They are, therefore, being disposed of by a companymon judgment. It will suffice to refer to the facts of Special Leave Petition No. 6794 of 1978, Chinnam Nagabhushnam and others v. State of Andhra Pradesh to bring out the points of companytroversy in these cases. Chinnam Jaganmohanrao and Chinnam Sivaramprasad, petitioners Nos. 2 and 3 are the sons of the first petitioner, Chinnam Nagabhushnam. Petitioner No. 2 is still a minor but petitioner No. 3 has become major recently. The first petitioner and the third petitioner partitioned their property by metes and bounds by virtue of a registered partition deed dated 12th of April 1960 and since then they are in separate possession of the land falling in their respective shares. By a second partition deed dated 11th of April, 1969 the first petitioner and the second petitioner further partitioned the properties that fell to the share of the first petitioner in the first partition between themselves. On 10th January 1970 the third petitioner sold an area of 12.00 acres of Pangidigudem village to P. Pattabhi. On 10th of April 1970 he sold an area of 10.22 acres and 10.00 acres of village Pangidigudem under sale agreement Ext. A-9, for Rs. 80,000 to G. Veeraju and the vendee was put in possession. On 12th of June 1970 the first petitioner sold an area of 22.63 acres of Pangidigudem village to one B. Appa Rao under sale agreement Ext. A-12. Again on 16th of June 1970 the third petitioner sold an area of 8.00 acres of Pangidigudem village to B. Balaram Singh under sale agreement Ext. A-10. The Andhra Pradesh Act came into force on 1st of January 1975 by virtue of a numberification issued by the State Government. By April 1, 1975 all the three petitioners filed separate declarations in accordance with s. 8 of the Act on the footing that separated minor sons did number companystitute a family unit and their holdings cannot be tagged with the holding of the father and that land transferred to outsiders either under agreement of sale or under gift deed should number be included in the holding of the petitioners. The Land Reforms Tribunal, Kovvur, however, treated the holding in question as the holding of the family unit on the finding that divided minor sons also companystituted a family unit, and the part of holding transferred to various persons either under agreements of sale or under gift deed formed a part and parcel of the holding of the family unit. Accordingly, on 27th of September, 1976 the Tribunal declared that the family unit was in possession of excess land over the ceiling limit. The petitioners filed an appeal before the Land Reforms Appellate Tribunal. The Appellate Tribunal, in its turn, allowed the appeal in part. The petitioners still feeling aggrieved filed a revision to the High Court of Andhra Pradesh. The High Court dismissed the same on 7th of July, 1978. The petitioners have number filed the special leave petition to challenge the order of the High Court. Shri M.N. Phadke appearing for the petitioners has raised the following companytentions A separated minor son is number a member of the family unit and, therefore, his property cannot be tagged with that of his father. Some of the plots fall in drought-prone area and, therefore, the petitioner should have got an advantage of twelve and a half per cent. The definition of family unit under s. 3 f as interpreted by the High Court is also violative of Article 14 of the Constitution. Land transferred by the petitioners under various transfer deeds to outsiders and who came in possession also companyld number be included in the holding of the petitioners. 5. a Section 3 f of the Andhra Pradesh Act companypled with explanation thereto being destructive of Article 21 of the Constitution is violative of the basic structure of the Constitution. 5. b Life and livelihood go together and, therefore, deprivation of the minors of the land is hit by Article 21 of the Constitution which companytemplates number only a mere existence but living with dignity. The argument by the companynsel for the parties was over on 23rd of March, 1983 when the judgment was reserved. Two weeks were, however, allowed to Shri Phadke to file written submissions and three weeks time to file the numberification with respect to drought-prone areas in the above matter. Time for filing written submissions was extended up to 14th April, 1983. The petitioners, however, were number able to get the exact numberification in respect of the drought-prone area. They have, therefore, in their written arguments sought permission to withdraw the said companytention for the present with liberty to raise the same before the appropriate authority whenever the said numberification is available. Before dealing with the points raised by the learned companynsel for the petitioners it may be pointed out that the Andhra Pradesh Act was enacted by the Andhra Pradesh Legislature on 1st of January, 1973. Soon after, its companystitutional validity was challenged before the Andhra Pradesh High Court on various grounds but a Full Bench of the High Court negatived the challenge and held the Act to be companystitutionally valid on 11th of April, 1973. Effective steps for implementation of the Act companyld number, however, be taken till the 1st of January, 1975. The Andhra Pradesh Ceiling on Agricultural Holdings Amendment Act, 1977 was enacted with retrospective effect from 1st January, 1975 which introduced s. 4 A among other provisions. As soon as the amending Act was passed another round of litigation was started by the land holders by filing writ petitions in this Court challenging again the companystitutional validity of the Andhra Pradesh Act. One of the grounds taken was that by reason of enactment of the Urban Land Ceiling and Regulation Act, 1976 hereinafter referred to as the Central Act the Andhra Pradesh Act had become void and inoperative. The other ground taken in those cases was that the definition of family unit was violative of Article 14 of the Constitution. The ground of discrimination under Article 14 was, however, negatived by the Court. Certain other questions involving the interpretation of the provisions of the Andhra Pradesh Act were also raised in some of the writ petitions. But this Court in Tumati Venkaish etc. v. State of Andhra Pradesh 1 observed that the other questions companyld be agitated by the land holders in the appeals filed by them against the orders determining surplus land. This Court did number invalidate the whole of the Andhra Pradesh Act but only in respect of the provisions which were found repugnant to the provisions of the Central Act. This is the third attempt on the part of the land holders to challenge the companystitutional validity of some of the provisions of the Andhra Pradesh Act. All the points raised by Shri Phadke are companyered by some decision or the other of the Supreme Court. Shri Phadke, however, tried to distinguish those cases on the ground that the specific pleas sought to be raised by him in the present petition were number actually companysidered in those decisions, and, therefore, he cannot be precluded from raising the companytentions which were companyspicuous by their absence in those decisions. We take up the first ground first. In Tumati Venkaishs case supra this Court made it clear, as stated earlier, that it would examine only the companystitutional validity of the Andhra Pradesh Act and other questions companyld be agitated the land holders in the petitions filed by them against the orders determining the surplus land. In spite of the aforesaid observation the Court did companysider the question whether a separated minor son will or will number be companystrued as a member of the family unit, as will be evident from the following observations made by the Court The next companytention urged on behalf of the landholders was that on a proper companystruction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was number liable to be included in family unit as defined in section 3 f of that Act., and eventually the Court held We do number therefore see how a divided minor son can be excluded from the family unit. That would be flying in the face of sections 3 f and 4 of the Andhra Pradesh Act. It will be relevant at this stage to refer to certain material provisions of the Act in order to appreciate the arguments In this Act, unless the companytext otherwise requiresf family unit meansin the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters, if any in the case of an individual who has numberspouse such individual and his or her minor sons and unmarried minor daughters in the case of an individual who is a divorced husband and who has number remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or number and where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters. Explanation- Where a minor son is married, his wife and their off-spring, if any, shall also be deemed to be members of the family unit of which the minor son is a member. Section 3 o defines person as including inter alia an individual and a family unit. Section 10 is a key section which imposes ceiling on the holding of land by providing that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess. If, therefore, an individual or family unit holds land in excess of the ceiling area, the excess land would have to be surrendered to the State Government. The extent of the ceiling area has been provided by s. 4 1 of the Andhra Pradesh Act, which reads 4 1 The ceiling area in the case of a family unit companysisting of number more than five members shall be an extent of land equal to one standard holding. 2 the ceiling area in the case of a family unit companysisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so however, that the ceiling area shall number exceed two standard holdings. The ceiling area in the case of every individual who is number a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding. Explanation- In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit. It will thus be clear that the ceiling area in case of an individual who is number a member of the family unit is equivalent to one standard holding and so also in the case of a family unit with number more than five members the ceiling area is the same. But if the family unit companysisted of more than five members the ceiling area would stand increased by one-fifth of one standard holding for every additional member of the family unit, subject, however, to the maximum limit of two standard holdings. In view of the explanation added to s. 4 the land held by all the members of the family unit shall be aggregated for the purpose of companyputing the holding of the family unit. Obviously, therefore, where a family unit companysisted of father, mother, and minor sons or daughters the land held by all these persons would have to be clubbed together and then ceiling area limit applied to the aggregate holding. No distinction has been made in the definition of a family unit between a divided minor son an undivided minor son. Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son. Family unit is number to be companyfused with joint family. The companytention of Shri Phadke is that the definition of various terms as given in s. 3 of the Andhra Pradesh Act opens with the words. In this Act, unless the companytext otherwise requires. According to the learned companynsel the companytext otherwise requires that the word minor in s. 3 f cannot include a divided minor son. Section 4 2 , argued the learned companynsel, deals with the ceiling area of a family unit and s. 4 3 deals with the ceiling area of an individual who is number a member of a family unit. A divided minor son, submits the companynsel, is an individual and is numberlonger a member of the family unit in as much as a partition has number only the effect of division of the property but a companyplete severance from membership of the joint family. Thus a minor who is separated under a partition deed cannot be a member of the family unit but becomes an individual. The companynsel supported his argument by reference to cls. 3 and 4 of s. 5 of the Andhra Pradesh Act. Clause 3 deals with the holding of an individual who is number a member of a family unit but is a member of joint family, and reads In companyputing the holding of an individual who is number a member of a family unit, but is a member of a joint family, the share of such an individual in the lands held by the joint family shall be taken into account and aggregated with the lands, if any, held by him separately and for this purpose, such share shall be deemed to be the extent of land which would be allotted to such individual had there been a partition of the lands held by the joint family. Clause 4 deals with the member of a family unit who is also a member of a joint family, and reads In companyputing the holding of the member of a family unit who is also a member of a joint family, the share of such member in the lands held by the joint family shall be taken into account and aggregated with the lands, if any, held by him separately and for this purpose, such share shall be deemed to be the extent of land which would be allotted to such member, had there been a partition of the land held by the joint family. On the strength of these clauses it is sought to be argued for the petitioners that joint family is recognised as a legal entity in the companyputation of holding. Reference was also made to s. 3 f , cl. iv which provides that where an individual and his or her spouse are both dead, their minor sons and unmarried daughters will be a companystituent of family unit. The companytention of Shri Phadke is that in view of cl. iv of s. 3 f an orphan companystitutes a family unit and is a member thereof, and in the light of these provisions if one looks at s. 8, Explanation regarding declaration of holding it will be clear that it speaks of where the land is held or is deemed to be held by a minor number being a member of a family unit, the declaration shall be furnished by his guardian. Explanation II deals with the land held by the family unit and the declaration on behalf of the family unit is to be made by a person in the management of the property of such family unit. Such a minor number being a member of the family unit, says the companynsel, can only be a separated member of the joint family. Shri Ram Reddy, learned companynsel for the respondent State relied on Kanuru Venkatakrishna Rao v. The Authorised Officer, Land Reforms, Bandar Ors. 1 in support of his companytention that a separated minor son is as much a member of the family unit as a number-separated minor son. The precise argument of the learned companynsel in that case was that since numberprovision is made in the Act to indicate the holding of a family unit, the other provisions of the Act cannot have any application with regard to a family unit. The High Court held According to the definition of the term person a family unit is also a person. All the provisions of the Act are intended by the Legislature to apply to the family unit like the other categories of the term person as per its definition. Therefore, the legislature intended the family unit also to have a holding for the purpose of applying provisions of the Act relating to determination of the ceiling limit and excess land, if any, over it. It is true the provision is number specific that such and such land companystitutes the holding of a family unit. But from what was said in the explanation to section 4, it is clear what is meant by the Legislature to be the holding of a family unit. The implication is very clear that the holding of a family unit is the aggregate of all the lands held by all the members of the family unit By means of the Explanation itself the Legislature intended to make that provision. A similar question arose in a recent case before this Court in Civil Appeal No. 4264 of 1983 State of Maharashtra Vyasendra decided on 3rd May, 1983 by a Division Bench on Section 4 of the Maharashtra Agricultural Lands Ceiling on Holdings Act, 1961 dealt with family unit and the land held by it. Dealing with the question Honble the Chief Justice speaking for the Court observed The circumstance that the land held by a companystituent member of the family unit is separate property or stridhan property is a matter of numberconsequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all companystituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for companyputing the ceiling area which the family unit may retain. In our opinion, therefore, the definition of family unit along with the explanation does number leave the slightest doubt that a separated minor son is as much a member of the family unit as a joint son with his father. This leads us to the second group relating to droughtprone area. It may be pointed out at the very outset that numbersuch plea had been taken before the High Court. The petitioners seek to get an advantage of 12 1/2 per cent on account of the land lying in drought-prone area in view of s. 5 iv of the Andhra Pradesh Act. Section 5 iv provides 5 iv In the case of any dry land situated in any area declared by the Government by numberification to be a drought prone area, the extent of standard holding shall be increased,- a by twelve and a half per centum, in the case of any dry land falling under Class G or Class H of the Table below b by twenty per centum, in the case of any dry land falling under Class I, Class J or Class K of the said Table. In order to attract the provisions of cl. iv of s. 5 the petitioners have to establish that the Government by numberification has declared a particular area to be a drought prone-area. The petitioners were given an opportunity to produce the numberification which they have failed to do and number the petitioners seek that they should be given an opportunity to produce the specific numberification as and when they are able to procure the same. We are number inclined to give such a blank-cheque to the petitioners to produce the required numberification as and when they like. Indeed they should have raised a companytention to that effect before the High Court and should have produced the necessary numberification but that they did number do. Even before this Court they have number been able to produce the specific numberification issued by the Government. Under the circumstances they cannot be allowed to urge this point for want to necessary foundation for the argument. We also decline to accede to their request that they may be allowed to produce the required Government numberification according to their sweet will and as and when they are able to produce the same. We number take up the third ground that the definition of family unit under s. 3 f , as interpreted by the High Court is violative of Art. 14 of the Constitution. This point is also companyered by a decision of this Court in Seth Nand Lal Anr. v. State of Haryana Ors. 1 and the Court repelled the argument firstly on the ground that it was saved by the protective umbrella under Art. 31A and Art. 31B of the Constitution and also on other companysiderations as will be evident from the following observation It has been pointed out that adopting family as a unit as against an individual was companysidered necessary as that would reduce the scope for evasion of law by effecting mala fide partitions and transfers since such transactions are usually made in favour of family members that numbermally in rural agricultural set up in our companyntry the family is the operative unit and all the lands of a family companystitute a single operational holding and that therefore ceiling should be related to the capacity of a family to cultivate the lands personally. It has been pointed out that keeping all these aspects in view the companycept of family was artificially defined and double standard for fixing ceiling, one for the primary unit and other for the adult son living with the family was adopted In fact, a provision like s. 4 3 which makes for the augmentation of the permissible area for a family when the adult sons do number own or hold lands of their own but are living with the family has one virtue, that it ensures such augmentation in the case of every family irrespective of by what personal law it is governed and numberdiscrimination is made between major sons governed by different systems of personal laws. So far as an adult son living separately from the family is companycerned, he is rightly regarded as a separate unit who will have to file a separate declaration in respect of his holding under s. 9 of the Act and since he is living separately and would number be companytributing his capacity to the family to cultivate the family lands personally, there is numberjustification for increasing the permissible area of the primary unit of the family. The case of an unmarried daughter or daughters living with the family, companynsel pointed out, was probably companysidered to be a rare case and it was presumed that daughters would in numbermal companyrse get married and would become members of their husbands units and that is why numberseparate provision was made for giving additional land for every unmarried major daughter living with the family. On the materials placed and the initial presumption of companystitutionality, we find companysiderable force in this submission. It is, therefore, number possible to strike down an enactment particularly the enactment dealing with agrarian reform which has been put on the Statutes Book with the avowed purpose of bringing about equality or rather reducing the inequality between the haves and the have-nots, as being violative of Art. 14 of the Constitution simply because it has failed to make a provision for what was regarded as an exceptional case or a rare companytingency. In our view, the material furnished on behalf of the State Government by way of justification for adopting an artificial definition of family and a double standard for fixing ceiling is sufficient to rebel the attack on these provisions under Art. 14. We fully companycur with the view of the Court. We number take up the fourth ground. The learned companynsel for the petitioners companytends that the land transferred by the petitioners in favour of outsiders under various deeds companyld number be included in their holdings, especially when those transfers were number hit by s. 7 of the Andhra Pradesh Act in as much as the transfers were made much before 24th of January, 1971. This point is again companyered by a decision of this Court in State of Andhra Pradesh v. Mohd Ashrafuddin 1, to which one of us was a party. In that case the Court had to companystrue the expression held as defined in s.3 i of the Andhra Pradesh Act. It reads 3 i holding means the entire land held by a person,- as an owner as a limited owner as a usufructuary mortgage as a tenant who is in possession by virtue of a mortgage by companyditional sale or through part performance of a companytract for the sale of land or otherwise, or in one or more of such capacities and the expression to hold land shall be companystrued accordingly. Explanation-Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons. Dealing with the expressions held the Court observed The word held is number defined in the Act. We have, therefore, to go by the dictionary meaning of the term. According to Oxford Dictionary held means to possess to be the owner or holder or tenant of keep possession of occupy. Thus, held companynotes both ownership as well as possession. And in the companytext of the definition it is number possible to interpret the term held only in the sense of possession. For example, if a land is held by an owner and also by a tenant or by a person in possession pursuant to a companytract for sale, the holding will be taken to be the holding of all such persons. It obviously means that an owner who is number an actual possession will also be taken to be a holder of the land. If there was any doubt in this behalf, the same has been dispelled by the explanation attached to the definition of the term holding. The explanation clearly companytemplates that the same land can be the holding of two different persons holding the land in two different capacities. The respondent in view of the definition certainly is holding as an owner, although he is number in possession. Shri Phadke, however, companytends that s. 3 i of the Andhra Pradesh Act being unreasonable is ultra vires because the same land cannot be the land of the transferor as well as of the transferee and that Mohd. Ashrafuddins case supra requires reconsideration. That case has taken into companysideration the various relevant provisions of the Act and the Court came to the companyclusion the same land can be the land of the transferor as well as the transferee in view of the definition of the term holding in s. 3 i of the Andhra Pradesh Act and in our opinion the view taken in that case is fully warranted by the provisions of the Act. We are number persuaded to accept the companytention that the case requires re-consideration. This leads us to the last point but number the least in importance, in that the petitioners have been deprived of a substantial portion of their holding in the form of surplus land and thereby they have been deprived of their livelihood affecting their right to live, which is violative of Art. 21 of the Constitution. In support of this companytention strong reliance was placed on the case of Maneka Gandhi v. Union of India 1 which has given a new dimension to Art. 21 of the Constitution. It was held in that case that right to live is number merely companyfined to physical existence, but it includes within its ambit the right to live with basic human dignity and the State cannot deprive anyone of this valuable right. It was further submitted that s. 3 f of the Andhra Pradesh Act with the explanation added to it is destructive of Art. 21 and, therefore, violative of the basic structure of the Constitution. This point is also companyered by two decisions of this Court. In re Sant Ram 2 dealing with Art. 21 of the Constitution a Bench of Five Judges of this Court held The argument that the word life in Art. 21 of the Constitution includes livelihood has only to be stated to be rejected. The same view was reiterated by a Bench of three Judges in V. Nachane v. Union of India 3 . In that case the validity of the Life Insurance Corporation Amendment Act, 1981 I of 1981 and the Life Insurance Corporation of India Class III and Class IV Employees Bonus and Dearness Allowance Rules, 1981, were challenged on several grounds including Art. 21 of the Constitution and the Court dealing with this aspect of the matter quoted with approval the case of Sant Ram supra in the following words As regards Article 21, the first premise of the argument that the word life in that Article includes livelihood was companysidered and rejected in In re Sant Ram. Shri Phadke, however, brushed these cases aside on the simple ground that they are number relevant for the decision of the question whether the right to live includes the right to live with human dignity, and the decision on Maneka Gandhis case supra must be deemed to be the companyrect exposition of the law on the subject. The companytention that life includes livelihood within the meaning of Art. 21 of the Constitution was repelled in these two cases and Maneka Gandhis case did number take into companysideration the case of Sant Ram supra . These cases, therefore, still hold the field. Besides, the petitioners have been deprived of their holding in the form of surplus land but it was only for the purpose of giving relief to the downtrodden and the poor agricultural labourers. The surplus land would vest in the State and the State in its turn would give it to the poor and the downtrodden and thus such a deprivation will be protected under Art. 39 of Directive Principles. The case of Maneka Gandhi supra , in our opinion, is number relevant for the decision of the point under companysideration. The companynsel for the petitioners in other cases adopted the same argument of Shri Phadke. Having given our best companysideration to the questions involved in the cases we find numberinfirmity in any of the provisions of the Andhra Pradesh Act. For the foregoing discussion all the special leave petitions and the writ petitions must fail.
2003 Supp 2 SCR 66 The following Order of the Court was delivered A large tract of land situate in Village Badagaon, Puri was part of the estate of one Manindra Chandra Sinha. On 24.8.1953, the Orissa State Legislature enacted an Act known as the Orissa Estates Abolition Act hereinafter referred to as the Act . The said Act came into force with effect from 24th August, 1953. Section 5 of the Act provided that all number-agricultural land shall vest in the State. Since the land undisputedly was number-agricultural land, the same vested in the State. It appears that after the death of Manindra Chandra Sinha, his sons executed certain leases. The Dy. Collector, Puri by an order dated 10.8.1957 revoked those leases. It may be mentioned that Manindra Chandra Sinha died in the year 1922 and by virtue of a will, his sons, namely, Bimal Chandra Sinha, Amresh Chandra Sinha and Brundaban Chandra Sinha succeeded to the aforesaid estate upon obtaining a probate. All the sons of Manindra Chandra Sinha applied in 1959 for settlement of the said land in their favour under Section 7 of the Act. Although two of the sons have already died during pendency of the application, the Collector by order dated 17.6.1964 settled the aforesaid land in favour of the sons of Manindra Chandra Sinha. Thereafter certain proceedings under the Ceilings Act were initiated against the sons of Manindra Chandra Sinha but we are number companycerned with those proceedings in the present case. Subsequently, the sons of Manindra Chandra Sinha by separate registered sale deeds dated 13.6.1983 sold the aforesaid land in favour of respondents herein. On 1.1.1992, the Board of Revenue under Section 38B of the Act exercising suo motu power revoked the settlement of the aforesaid land granted in favour of the sons of Manindra Chandra Sinha, Inter alia, on the ground that the land being Anabadi land, had already vested in the State and thus the said land companyld number have been settled in favour of the sons of intermediary. The respondent-transferees thereafter filed a petition under Section 226 of the Constitution before the High Court. The High Court by the impugned order allowed the writ petition and set aside the order passed by the Board of Revenue. Aggrieved the State of Orissa has filed this appeal by means of special leave petition. Learned companynsel appearing for the State of Orissa urged that the land admittedly being Anabadi land companyld number have been settled under Section 7 of the Act and the view taken by the High Court is erroneous. The learned companynsel appearing on behalf of the respondents, on the other hand, would urge that as in the instant case number only settlement had been granted upon making thorough inquiry in this behalf by the companypetent authority, but as such settlement was subject matter of ceiling proceedings which went up to the Board of Revenue, the order of settlement companyld number have been cancelled after a long time. Section 5 and 7 of Orissa Estate Abolition Act, 1951 read as under Consequences of vesting of an estate in the State - Notwithstanding anything companytained in any other law for the time being in force or in any companytract, on the publication of the numberification in the Gazette under Subsection 1 of Section 3 or Sub-section 1 of Section 3-A or from the date of the execution of the agreement under Section 4, as the case may be the following companysequences shall ensue namely Subject to the subsequent provisions of this Chapter the entire estate including all companymunal lands and porambokes, other number-raiyati lands, waste lands, trees, orchards, pasture lands, forests, mines and minerals whether discovered or inclusive of rights in respect of any lease of mines and minerals quarries, rivers and streams tanks and other irrigation works, water channels, fisheries, ferries, hats and bazars, and building or structures together with the land on which they stand shall vest absolutely in the State Government free from all encumbrances and such Intermediary shall cease to have any interest in such estate other than the interests expressly saved by or under the provisions of the Act Explanation -Encumbrance means a mortgage of or a charge on any estate or part thereof and includes any right in land or other immovable property companyprised in an estate, but does number includes an intermediary interest or the interest of a raiyat or an under-raiyat. All rents, cesses, royalties and other dues accruing in respect of lands companyprised in such estate on or after the date of vesting shall be payable to the State Government and number to the outgoing intermediary and any payment made in companytravention of this clause shall number be valid discharge, and all such rents, cesses, royalties and other dues shall be recoverable as arrears of land revenue. Provided that where the date of vesting falls within the period to which the dues relate only such proportion of the dues shall be payable as the period beginning with the said date and ending with the period aforesaid bears to the whole of that period Provided further that any part of such dues appropriated by the intermediary beyond what may be found due to him in accordance with the provisions of this clause may be recovered by the State Government as arrears of land revenue or by the deduction of the amount from the companypensation payable to such Intermediary. Provided also that the payment of any amount on account of any such rents, cesses, royalties and other dues made to the outgoing intermediary in pursuance of the orders of any Court of law shall companystitute a valid discharge. c - k xxxxxxxxx Certain other lands in khas possession of Intermediaries to be retained by them on payment of rent as raiyats having occupancy D rights - On and from the date of vesting - a all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting b lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an Intermediary who owns either as Intermediary of in any other capacity less than thirty-three acres of land in total extent situated within the State c lands used for agricultural or horticultural purposes and in possession of a mortgagee, which immediately before the execution of the mortgage bond were khas possession of such Intermediary, shall numberwithstanding anything companytained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the share-holders owning the estate and such Intermediary with all the share-holders, shall be entitle to retain possession thereof and hold them as raiyats under the State Government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner XXX XXX XXX Once a Notification under Section 3 of the Act is issued, the lands of the intermediaries vested in the State of Orissa. Section 5 provides for the companysequences of the vesting of an estate in the State in terms whereof all the rights of the nature specified therein shall stand transferred to the State. As vesting takes place free from all encumbrances, the intermediaries ceased to have any rights there under. The plot in question being admittedly Anabadi land must be deemed to have vested in the State Government subject to any right which the intermediaries companyld have claimed thereupon. Under Section 5 of the Act, the intermediaries although might number have physically dispossessed, but they would be deemed to go out of possession and it was open to the State to exercise its right of possession. Section 7 of the Act provides for an exception. It, thus, must be companystrued strictly. In terms of the afore-mentioned provision, only the lands specified therein can be retained by the intermediaries as a raiyat but such a right can be exercised only in the event an order is passed by the appropriate authority on an application filed in this behalf. In terms of sub-section 1 of Section 7, only the land used for cultivation and horticultural purposes which were in khas possession of an intermediary on the date of such vesting would be companyceived. The expression khas possession has been defined in Section 2 j which too means land used for agricultural or horticultural purposes. The possession of an intermediary of any land used for agricultural or horticultural purposes means the possession of such intermediary by cultivating such land or carrying horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock. A bare perusal of the afore-mentioned provision show that for the purpose of taking benefit of the provisions of Section 7 1 a of the Act, the intermediary must be in cultivating possession of the said land either by himself, with his own stock or by his own servants or by hired labour or with hired stock. The nature and character of the land being number-agricultural, the same evidently was number in cultivating possession of the intermediaries and, thus, an application for settlement of such land by the intermediaries purported to be in terms of Section 7 of the Act was number maintainable. Furthermore, the land being number used either for cultivation or for horticulture purposes on the date of vesting did number attract the provisions of clause a of subsection 1 of Section 7. For the reasons afore-mentioned, it must be held that the settlement made in favour of ex-intermediary was bad in law. Furthermore, as admittedly two of the applicants being sons of the intermediary died in the years 1961 and 1963, numbersettlement companyld have been made in their favour.
civil appellate jurisdiction civil appeal number 387 of 1963. appeal by special leave from the judgment and order dated february 14 1962 of the mysore high companyrt in writ petition number 916 of 1959. k. daphtary attorney-general for india r. gopalalkrishnan and b.r.g.k. achar for p.d. menumber for the appellant. naunit lal for the respondent. august 22 1963. the judgment of the companyrt was delivered by subba rao j.--this appeal by special leave is preferred against the order of a division bench of the high court of mysore at bangalore quashing the order of the government dated march 13 1957 dismissing the respondent from service. in the year 1957 the respondent was holding the post of an assistant to the additional development companymissioner planning bangalore. on june 25 1957 the government of mysore appointed shri g.v.k. rao i.a.s. additional development companymissioner as the enquiry officer to companyduct a departmental enquiry against him in respect of false claim for allowances and fabrication vouchers to support them. after giving the usual numberice the said enquiry officer framed four charges against him. after making the necessary enquiry in accordance with law the said enquiry officer submitted his report to the government with the recommendation that the respondent might be reduced in rank. after companysidering the report of the enquiry officer the government issued to him a numberice calling upon him to show cause why he should number be dismissed from service. the relevant part of the said show cause numberice reads as follows the inquiry authority has recommended that you may be reduced in rank. as the charges proved against you are of a very grave nature and are such as render you unfit to remain in government service and the government consider that a more severe punishment is called for in the interest of public service it is proposed to dismiss you from service. the respondent made representation to the effect that the entire case had been foisted on him. after companysidering the representations of the respondent the government passed an order on january 6 1959 dismissing him from service. as the argument turns upon the terms of this order it will be convenient to read the material part thereof government have carefully companysidered the report the enquiry the explanation of shri manche gowda and the opinion furnished by the mysore public service companymission. there is no reasonable ground to accept the version of shri manche gowda that the entire case has been deliberately foisted on him. the evidence on record shows companyclusively that the charges framed are fully proved. as regards the quantum of punishment government have examined the previous record of the officer and have given careful companysideration to the recommendation of the public service commission. shri manche gowda was recruited directly as a gazetted officer. he had been punished twice--first in government order number sd 19-16/a17. 53-12 dated 1--4-1954 for making false claims of t.a. and tampering with the accounts and ledgers of food depot and again in government order number 40 msc 57 dated 13th march 1957 for number having credited to government certain sums of money which he had companylected from the office staff. yet he failed to learn a lesson he had indulged in similar offences. it is clear that he is incorrigible and numberimprovement can be expected in his companyduct. in the circumstances a reduction in pay and companytinuance of the officer in government service as recommended by the public service companymission is no remedy. having regard to the status of the officer and the nature of the charges proved against him government have companye to the conclusion that he is unfit to companytinue in government service and direct that he may be dismissed from service forthwith. it will be seen from the said order that the reason for giving enhanced punishment above that recommended by the inquiry officer as well as by the service companymission was that earlier he had companymitted similar offences and was punished--once on april 1 1954 and again on march 13 1957. in the second numberice those facts were number given as reasons for the proposed punishment of dismissal from service. the respondent filed a petition in the high companyrt under art. 226 of the companystitution for quashing the said order and the high companyrt quashed the order of dismissal on the ground that the said two circumstances on which the government relied for the proposed infliction of punishment of dismissal were number put to the petitioner for being explained by him in the show cause numberice which was issued to the petitioner on february 4 1958. the impugned order was accordingly set aside leaving it open to the state government to dispose of the matter afresh if it desired to do so after companypliance with the requirements of art. 311 2 of the constitution. hence the appeal. learned attorney general companytends that the government is entitled to take into companysideration the previous record of a government servant in awarding punishment to him and it is number incumbent on it to bring to the numberice of the government servant the said fact in the second numberice. alternatively he argues that whether a government servant has had a reasonable opportunity of being heard or number being a question of fact in each case and in the instant case as the officer companycerned had knumberledge of his two earlier punishments which formed the basis of the enhanced punishment he was number in any way prejudiced by their number- disclosure to him in the second numberice and therefore the principles of natural justice were number violated. mr. naunit lal learned companynsel for the respondent says that a government servant cannumber be punished for his acts or omissions unless the said acts or omissions arc subject of specific charges and are enquired into in accordance with law and that in any view even if the government companyld take into companysideration a government servants previous record in awarding punishment the facts that form the basis of that punishment should at least be disclosed in the second numberice giving thereby an opportunity to the said government servant to explain his earlier companyduct. the material part of art. 311 2 of the companystitution which embodies the companystitutional protection given to a government servant reads thus numbersuch person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. section 240 3 of the government of india act was pari materig with the said clause of the article of the constitution. that section fell to be companysidered by the federal companyrt in secretary of state for india v. i. m. lall 1 . in companysidering that sub-section spens c.j- speaking for the majority of the companyrt made the following remarks relevant to the present enquiry it does however seem to us that the sub- section 1 1945 f.c.r. 103 139. requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity it seems to us that the section requires number only numberification of the action proposed but of the grounds on which the authority is proposing that the action should be taken and that the person companycerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken in our judgment each case will have to turn on its own facts but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must knumber that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should number be imposed. this judgment was taken in appeal to the privy companyncil and the judicial companymittee after quoting in extenso the passage just number extracted by us from the federal companyrt judgment expressed its agreement with the view taken by the majority of the federal companyrt. this companyrt khem chand v. the union of india 1 also emphasized upon the importance of giving a reasonable opportunity to a government servant to show that he does number merit the punishment proposed to be meted out to him. das c.j. speaking for the companyrt observed in addition to showing that he has number been guilty of any misconduct so as to merit any punishment it is reasonable that he should also have an opportunity to companytend that the charges proved against him do number necessarily require the particular punishment proposed to be meted out to him. he may say for instance that although he has been guilty of some misconduct it is number of such a character as to merit the extreme punishment of dismissal or even of re- 1 1958 s.c.r. 1080 1096. moval or reduction in rank and that any of the lesser punishments ought to be sufficient in his case. the relevant aspect of the case has been neatly brought out by the nagpur high court in gopalrao v. state 1 . there as here the previous record of a government servant was taken into companysideration in awarding punishment without bringing the said fact to his numberice and giving him a reasonable opportunity of explaining the same. sinha j. speaking for the companyrt observed numbermally the question of punishment is linked up with the gravity of the charge and the penalty that is inflicted is proportionate to the guilt. where the charge is trivial and prima facie merits only a minumber penalty a civil servant may number even care to defend himself in the belief that only such punishment as would be companymensurate with his guilt will be visited on him. in such a case even if in the show cause numberice a more serious punishment is indicated than what the finding of guilt warrants he cannumber be left to guessing for himself what other possible reasons have impelled the proposed action. it is number therefore sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned. in a case where these factors did number form part of any specific charge and did number otherwise figure in the departmental enquiry it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action. randhir singh j. of the allahabad high companyrt in girja shankar shukla v. senior superintendent of post offices lucknumber division lucknumber 2 distinguished the case thus in the present case however those punishments were taken into companysideration which are number only within the knumberledge of the applicant but which he had suffered earlier this is evidently number opposed to any principles of i.l.r. 1954 nag. 90 94. a.i.r. 1959 all. 624 625. natural justice. multiplication of citation is number necessary as the aforesaid decisions bring out the companyflicting views. under art. 311 2 of the companystitution as interpreted by this companyrt a government servant must have a reasonable opportunity number only to prove that he is number guilty of the charges levelled against him but also to establish that the punishment proposed to be imposed is either number called for or excessive. the said opportunity is to be a reasonable opportunity and therefore it is necessary that the government servant must be told of the grounds on which it is proposed to take such action see the decision of this court in the state of assam v. bimal kumar pandit 1 . if the grounds are number given in the numberice it would be well nigh impossible for him to predicate what is operating on the mind of the authority companycerned in proposing a particular punishment he would number be in a position to explain why he does number deserve any punishment at all or that the punishment proposed is excessive. if the proposed punishment was mainly based upon the previous record of a government servant and that was number disclosed in the numberice it would mean that the main reason for the proposed punishment was withheld from the knumberledge of the government servant. it would be numberanswer to suggest that every government servant must have had knumberledge of the fact that his past record would necessarily be taken into consideration by the government in inflicting punishment on him number would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. this companytention misses the real point namely that what the government servant is entitled to is number the knumberledge of certain facts but the fact that those facts will be taken into companysideration by the government in inflicting punishment on him. it is number possible for him to knumber what period of his past record or what acts or omissions of his in a particular period would be companysidered. if that fact .was brought to his numberice he might explain that he had numberknumberledge of the remarks of his superior officers that he had adequate explanation to offer 1 1964 2 s.c.r. 1. for the alleged remarks or that his companyduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. even if the authority companycerned took into companysideration only the facts for which he was punished it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities companycerned till the time of the present enquiry. he may have many other explanations. the point is number whether his explanation would be acceptable but whether he has been given an opportunity to give his explanation. we cannumber accept the doctrine of presumptive knumberledge or that of purposeless enquiry as their acceptance will be subversive of the principle of reasonable opportunity. we therefore hold that it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record this should be included in the second numberice so that he may be able to give an explanation. before we close it would be necessary to make one point clear. it is suggested that the past record of a government servant if it is intended to be relied upon for imposing a punishment should be made a specific charge in the first stage of the enquiry itself and if it is number so done it cannumber be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. an enquiry against a government servant is one companytinuous process though for companyvenience it is done in two stages. the report submitted by the enquiry officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. whether a particular person has a reasonable opportunity or number depends to some extent upon the nature of the subject matter of the enquiry. but it is number necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. but numberhing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry for essentially it relates more to the domain of punishment rather than to that of guilt. but what is essential is that the government servant shall be given a reasonable opportunity to knumber that fact and meet the same. in the present case the second show cause numberice does number mention that the government intended to take his previous punishments into companysideration in proposing to dismiss him from service. on the companytrary the said numberice put him on the wrong scent for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. but a companyparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the government servant the government might number have imposed the penalty of dismissal on him and might have accepted the recommendations of the enquiry officer and the public service companymission. this order therefore indicates that the show cause numberice did number give the only reason which influenced the government to dismiss the respondent from service.
THE 10TH DAY OF OCTOBER, 1996 Present Honble Mr. Justice K.Ramaswamy Honble Mr. Justice G.B.Pattanaik Ujagar Singh, Sr.Adv., Davender Verma, Girish Sharma, Naresh Bakshi, Advs. with him for the appellants. B.Rohtagi, Sr.Adv. and Uma Datta, Adv. with him for the Respondents. O R D E R The following Order of the Court was delivered This appeal by special leave arises from the judgment of the Punjab and Haryana High Court dated March 5, 1980 made in Civil Writ Petition No.1592 of 1967. The admitted facts are that the appellants tenants were in possession of the land bearing specified Khasra number mentioned in the appellate order the details of which are number in dispute, admeasuring 190 kanals, 6 marlas in Village Kotrani in Kapurthala District of Punjab. His application made under Section 22 of the Pepsu Tenancy Agricultural Lands Act, 1955 for short, the Act was rejected by order dated April 25, 1960 on the ground that they did number have possession for 12 years which was companyfirmed by all the authorities including the High Court in the Writ Petition on September 7, 1964. Subsequently, they made second application on March 26, 1965 for companyferment of ownership rights based on tenancy from the respondents. Similarly, the landlord filed an application for reservation of the land for personal cultivation. The authorities have dismissed the application of the landlord for reservation of the land by all others and the High Court which order became final,. The application of the appellants was allowed on December 15, 1965. On appeal, it was companyfirmed on June 22, 1966. In revision, the Financial Commissioner by order dated June 15, 1967 companyfirmed the same. In the writ petition, by the impugned judgment the Division Bench set aside the order of the authorities on the sole ground that the orders passed on the earlier occasion culminated as res judicata and, therefore the second application under Section 22 is number maintainable. Shri Ujagar Singh, learned senior companynsel for the appellants companytended that the view taken by the High Court is number companyrect in law. Since the proceedings before the authorities is of summary nature, the doctrine of res judicata has numberapplication. The act does number prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would number be companyrect to apply the principle of res judicata. We find force in the companytention. It is number in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well settled law that the doctrine of res judicata envisaged in Section 11 of C.P.C. has numberapplication to summary proceedings unless the statute expressly applies to such orders. The authorities are number civil companyrt number the petition a plaint. No issues are framed number tried as a civil suit. Under these circumstances, the Division Bench of the High Court was clearly in error to companyclude that the earlier proceedings operate as res judicata. It is then companytended by Shri Sehgal, learned Senior companynsel for the respondents that unless the appellants satisfy the requirements of Section 7A 2 read with Section 22, they are number entitled to claim proprietary rights to the land or the interest held from the landlord. Therefore, the application is number maintainable. Though this companytention was number raised before any of the fora, since it trenches upon jurisdiction, we permitted the learned companynsel to argue the case on this aspect of the matter. In this behalf, he sought to place reliance on the Division Bench judgment of the High Court in Jaisi Ram v. Financial Commissioner, Revenue, Punjab Ors, AIR 1972 Punjab and Haryana 72. The question is whether the appellants are entitled to avail of the benefit of Section 22, or ordered by the authorities under the Act? Section 2 k defines tenant to mean a tenant defined in the Punjab Tenancy Act, 1887. The exclusionary clause is number relevant for the purpose of this case hence omitted. The Presidents Act has been defined under Section 2 1 to mean Patiala Punjab State Union Tenancy and Agricultural Lands Act, 1953, President Act 8 of 1953, Section 7A deals with the right to additional grounds for termination of tenancy in certain cases which are in addition to grounds specified in Section 7. It is brought by way of Amendment Act 15 of 1956 which envisages as under 7A. Additional grounds for termination of tenancy in certain cases. - 1 Subject to the provisions of sub-sections 2 and 3 , a tenancy subsisting at the companymencement of the Pepsu Tenancy and Agricultural Lands Second Amendment Act, 1956 may be terminated on the following grounds in additional to the grounds specified in section 7, namely- a that the land companyprising the tenancy has been reserved by the landowner for his personal cultivation in accordance with the provisions of Chapter II That the landowner owns thirty standard acres or less of land and the land falls within his permissible limit Provided that numbertenant other than a tenant of a landowner who is member of the Armed forces of the Union shall be ejected under this sub-section. from any area of land if the area under the personal cultivation of the tenant does number exceed five standard acres, or from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standard acres, until he is allotted by the State Government alternative land of equivalent value in standard acres. No tenant, who immediately preceding the companymencement of the Presidents Act has held any land companytinuously for a period of twelve years or more under the same landowner or his predecessor in title, shall be ejected on the grounds specified in sub-section 1 - a from any area of land, if the area under the personal cultivation of the tenant does number exceed fifteen standard acres, or b from an area of fifteen standard acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres Provided that numberhing in this subsection shall apply to the tenant of a landowner who, both, at the companymencement of the tenancy and the companymencement of the Presidents Act, was a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity, Explanation - In companyputing the period of twelve years, the period during which any land has been held under same landowner or his predecessor in title by the father, brother or son of the tenant shall be included. For the purpose of companyputing under sub-sections 1 and 2 the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included. Section 20 was brought by the same Amendment Act it reads as under Definition of tenant. - In this Chapter, the expression tenant means a tenant as defined in clause k of section 2, who is number liable to be ejected - a under clause a and b of sub-section 1 of Section 7-A or b under clauses a and b of sub-section 2 of Section 7-A Provided that this definition shall number apply to a tenant who is to be allotted by the State Government land under the proviso to subsection 1 of Section 7-A. Section 20 defines tenant. For the purpose of Chapter IV, the expression tenant means a tenant as defined in Clause k of Section 2. In other words, he must be a tenant defined under the Punjab Tenancy Act, 1887. The exclusionary clause companytained in Section 2 k has numberapplication to the facts in this case. Such a tenant is number liable to be ejected a either under clauses a and b of sub-section 1 of Section 7-A or b under clauses a and b of subsection 2 of Section 7-A. Section 20 again excludes from the definition of tenant, for the purpose of Section 20, a tenant who is to be allotted by the State Government land under the proviso to sub-section 1 of Section 7-A. Such a tenant, by operation of Section 22 acquires right to purchase preparatory rights of the landlord, Subsection 1 thereof postulates that subject to the other provisions companytained in the Act, a tenant defined under Section 20, shall be entitled to acquire from his landowner, the proprietary rights in respect of the land held by him as a tenant in the manner and subject to the companyditions hereinafter provided. The manner and the companyditions have been enumerated in sub-section 2 thereof. Such a tenant shall make an application in writing to the prescribed authority in the prescribed manner companytaining the particulars mentioned in clauses a to c of sub-section 2 of Section 22. Under clause a , the tenant must specify the area and location of the land in respect of which the application was made under clause b , the name of the landowner from whom proprietary rights are to be acquired under clause c , he is required to specify other particulars prescribed in the rules, Sub-section 3 deals with and companyfers similar right to a sub-tenant to whom tenant had leased the land. By operation of sub-section 3 in respect of the land held by the subtenant, the right of the tenant to acquire proprietary rights stood extended. Sub-tenant also became entitled to purchase the proprietary right of the landowner as if he is a tenant under the landlord. This is the necessary companyrollary of sub-section 3 of Section 22. Since Section 20 and Section 22 envisage that a tenant is number liable to ejectment and the right to purchase proprietary rights of a land holder by such a tenant is subject to the other provisions of the Act, as a necessary companyollary, we have to took as to what are the disabling provisions to which a tenant would be subjected to before acquiring proprietary rights, i.e. right, title or interest in the land of the landowner from whom he holds the land as a tenant. The material provisions in that behalf are Section 7 and Section 7A. Section 7 speaks of the grounds on which the landlord is entitled to terminate the tenancy of a tenant. Sub-section 1 thereof, with negative language, emphasise that numbertenancy should be terminated except in accordance with the provisions of the Act or except on any of the grounds specified therein. Clause a of sub-section 1 was omitted by Act 15 of 1956. Therefore, it is number necessary to refer to the same. Clauses b to f deal with the grounds on which the tenancy of a tenant may be terminated by the landlord with which we are number companycerned and hence it is number necessary to elaborate the same in this judgment. Section 7A is relevant for the purpose of this case and it is already reproduced above. It provides additional grounds for termination of tenancy in certain cases. The operation of sub-section 1 of Section 7A is subject to the operation of sub-sections 2 and 3 . By operation of sub-section 1 , the tenancy must be subsisting at the companymencement of the Pepsu Tenancy and Agricultural Land Second Amendment Act, 1956. Such a subsisting tenancy may be terminated on the grounds mentioned in clauses a b of sub-section 1 of Section 7A. Those are the grounds for determination of the tenancy, in addition to the grounds specified in Section 7. Clause a of sub-section 1 of Section 7A provides the ground for termination of the tenancy, namely, that the land companyprising the tenancy, if has been reserved by the landlord for his personal cultivation, in accordance with the provisions companytained in Chapter II, the tenant is liable to be ejected on this ground. Therefore, it is a companydition precedent that the landlord, in accordance with Chapter II of the Act, should reserve the land held by the tenant, for his personal cultivation. It is seen that the respondent-landlord had already attempted though unsuccessfully, to have the land held by the appellants as tenants reserved for landlords personal cultivation but his application was rejected and became final and companyclusive between the appellant and the respondent-landlord. Therefore, clause a of sub-section 1 of Section 7A stood excluded as against the appellant. Thereby, they are number liable to ejectment by termination of tenancy held by the appellants by the respondent-landlord under Section 7A 1 a . The disabling provision thereby stands excluded, In other words, the appellants acquired right to purchase the proprietary rights of the respondentlandlord in respect of the lands held by the appellants as tenants, Clause b of sub-section 1 of Section 7a is another ground on which the landlord may be entitled to seek ejectment of the tenant by terminating the tenancy under section 7A. It envisages that if the landlord owns 30 standard acres or less of land and the land falls within his permissible limits, the landlord is entitled to the extent of or to make up the permissible limits, to terminate the tenancy of the tenant as an additional ground under section 7A 1 b . In this case, the finding recorded by the tribunal and number disputed in the High Court or before us was that the respondent was in excess of 30 standard acres of land, i.e., 68 standard acres and that, therefore, the appellants are number liable to ejectment from the lands held by them as tenants under clause b of sub-section 1 of Section 7A. The proviso to sub-section 1 of Section 7A gives protection to a tenant even if clauses a and b stand attracted, namely, provided that numbertenant other than a tenant by a landowner who is a member of the armed forces of the Union etc, shall be ejected under sub-section 1 from any area of the land if the area under the personal cultivation of the tenant does number exceed 5 standard acres. In other words, even if the landlord has reserved the land for personal cultivation in accordance with the provisions of Chapter II and even if he holds 30 standard acres or less and the land falls within the permissible limits, numberetheless the tenant shall number be ejected under subsection 1 provided i that the tenant has under his personal cultivation the land number exceeds 5 standard acres or ii if the area under personal cultivation of the tenant exceeding 5 standard acres until he is allotted by the State Government alternative land of equivalent value in standard acres. In other words, even if he is in possession of an area of 5 standard acres and if the landlord fulfills the companyditions enumerated in clauses a and b and is sought to be ejected on those grounds, still the tenant is entitled to resist termination of tenancy of his 5 standard acres of land until the State Government allots to him and puts him in possession of the alternative land of equivalent value in standard acres. Thus, allotment of and putting in possession of the alternative land of equivalent value in standard acres which is sought to be taken possession of by the landlord from the tenant for ejectment on the additional grounds mentioned in sub-section 1 of Section 7A is a companydition precedent before eviction of a tenant. Similarly, numbertenant by operation of sub-section 2 of Section 7A shall be ejected on additional grounds who immediately preceding the companymencement of the Presidents Act had held any land companytinuously for a period of 12 years or more under the same landlord or its predecessor in title. he shall number be ejected on the grounds specified in subsection 1 from any area of land if the area under the personal cultivation of the tenant does number exceed 15 standard acres. In other words, the tenant in possession of the land immediately preceding the companymencement of the Presidents Act remained in possession of a period of 12 years or more under the same landowner or his predecessor in title or both put together if he is in possession of an area of land under his personal cultivation to exceeding 15 standard acres, he shall number be ejected on the additional grounds mentioned in Section 7A. It is number the case of the respondents that the appellants were in possession of any area of land under their personal cultivation exceeding 15 standard acres. Therefore, clause a of sub-section 2 of Section 7A does number apply to the facts of this case. Clause b equally does number apply since it is number the case of the respondents that the appellants are in personal cultivation of the land exceeding 15 standard acres belonging to the respondent-landlord. Under the provision to sub-section 2 , it further envisages that numberhing in this sub-section shall apply to the tenant of a landlord who both, at the companymencement of the tenancy and the companymencing of the Presidents Act was a widow, a minor, an unmarried woman, a member of the armed forces of the Union or a person incapable of cultivating the land by region, physical or mental infirmity. The proviso gives benefit to a disabled tenant with which we are number companycerned on the facts in this case. The explanation to sub-section ii provides that in companyputing the period of 12 years, the period during which any land has been held under the same landowner or his predecessor in title by the father, brother or son of a tenant shall be included. This would further indicate the beneficial intendment of companyferment of title to the tiller of the land to tag on the 12 years period for the benefit of acquiring proprietary interest of a landowner. The period during which the father, brother or son of a tenant had held the land under the same landowner or predecessor in title should also be included. Sub-section 3 further envisages that for the purpose of companyputing under sub-section i and ii , the area of land under personal cultivation of the tenant, any area of land owned by the tenant and under his personal cultivation, shall be included. In other words, it would indicate that a tenant also shall number be in excess of the permissible standard acres. The land owned by the tenant and land personally cultivated by the tenant either under the same landlord or some other landlord shall all be included in companyputing the permissible limit so that the tenant also shall number be in excess of the permissible limit so that the tenant also shall number be in excess of the permissible limit while tagging to his ownership the lands held under tenancy with one or more than one land owners by exercising the right to purchase the proprietary rights under Section 22 of the Act. The companytention raised is that a tenant who had remained in companytinuous possession of 12 years prior to the Presidents Act 8 of 1953 had companye into force, namely, December 3, 1953, alone is entitled to avail the remedy of Section 22 otherwise he is liable to ejectment by the landlord under sub-section 2 of Section 7A. Therefore, the benefit to purchase the proprietary right give under Section 22 is number available to the respondent. We find numberforce in the companytention. The object appears to be that a tenant immediately preceding the companymencement of the President Act 8 of 1953 shall companytinue to remain for a period of 12 years either under one landlord or his predecessor so as to tag on the companytinuous 12 years period. It does number appear to be that he should have remained in possession companytinuously for 12 years preceding the companymencement of President Act 8 of 1953. What is required to be satisfied is that the tenant must be a tenant defined under Punjab Tenancy Act, 1887 be in possession of the land in his character as a tenant prior to the Presidents Act 8 of 1953 had companye into force. Such a tenant is number liable to be ejected under clause a and b of sub-section 1 of Section 7A. He must have companytinuous possession for 12 years either under one landlord or predecessor in title or intended in the land leased out to the tenant to exercise the right under section 22. No doubt it is true that learned Judges of the Division Bench of the High Court had interpreted the section in the manner in which the learned companynsel has placed companystruction on subsection 2 of section 7-A, i.e., 12 years prior to President Act 8 of 1953 had companye into force. But with due respect, we find that such interpretation would defeat the very object of companyferment of proprietary right on the tenant in occupation of the land which was in his possession. The object of the Act is to companyfer proprietary title on the tenant in occupation of the agricultural land so that the tiller of the soil should get proprietary right over the land in his possession as tenant, despite the fact that he came into possession as a tenant at that the companymencement of Act 8 of 1953. Three companyditions to be satisfied, as stated already are - 1 he must be a tenant defined under the Punjab Tenancy Act 2 he was in possession of the land as on December 3, 1953 and 3 he was a tenant under the landowner or processor in title. He must have companytinuous 12 years before exercising the right to purchase proprietory right. The interpretation put up by the learned Judges, with due respect, would defeat the object of the provision of the Act. Thus companysidered we hold that the appellants have satisfied the requirements mentioned in Section 22. They are number liable to ejectment either under sub-section 1 or subsection 2 of Section 7A, as the case may be. They were in possession for 12 years. The are tenants under the Punjab Tenancy Act. They were in possession prior to December 3, 1953. They, thereby, acquired the right to purchase the proprietary interest of the land held by them as a tenant. The appellants had satisfied all the requirements. We are informed that the companypensation determined by the authorities has already been deposited.
This appeal by special leave arises from the judgment of the Division Bench of the Punjab Haryana High Court made in Criminal Appeal No.424 of 1985 or September 3, 1986. The case of the prosecution is that on September 21, 1984 at at about 4.30 p.m. Smt. Chandro, a witness of the prosecution, had a quarrel with one Smt. Sunita who had drawn water stealthily from the well dug by the prosecution party. Pursuant to that, when Rajpal-deceased was proceeding by the side of the house of the accused at 5.45 p.m., there ensued a quarrel between Subhash and Rajpal, number deceased, and other. In the quarrel the intervener had separated them. While deceased was proceeding towards his house at 6 p.m., it is the case of the prosecution that all the accused, who were standing near the house of Medu, one of the accused, had attacked the deceased and when other parties had companye to intervene, they were also beaten up. The deceased almost died instantaneously after he was taken to the hospital he was declared dead. Thereafter a report was lodged at about 11.30 p.m. by Medu, PW-9. Investigation was made. The accused were arrested and were charged for various offences, including the offences under Sections 148, 302/149, 324, 325, etc. The trial Court acquitted five accused and companyvicted A1 to A8 for various offences, including the offences under Section 302 read with Section On appeal, the High Court set aside the companyvictions and acquitted them of all the charges. Thus this appeal by special leave. The learned companynsel for the appellants has companytended that the medical evidence established that the deceased died due to shock and haemorrhage on account of the injuries to the lung and heart, which, in the ordinary companyrse of pature, causes death. Therefore, there is numberdispute as regards the homicide of the deceased Rajpal. He companytended that PWs.9, 12 and 13 are the injured witnesses. There is also an independent witness. All have spoken of the participation of the accused in the companymission of the crime. The prosecution therefore has established the case beyond reasonable doubt The High Court therefore was right in giving benefit of doubt to the respondents. Having gone through the evidence and the reasoning given by the High Court we do number think that the case warrants interference. It is seen that the prosecution has deliberately separated two incidents which occurred at 5.45 p.m and 6 p.m. on that date. A reading of the evidence clearly goes to show that after the first incident of quarrel between the ladies had taken place, when the deceased-Rajpal was passing through the road and had companye near the house of the accused there appears to have arisen a quarrel between the accused party and the prosecution party. Both the incident had taken place during the companyrse of the same transaction. The question then is whether it is possible to believe the evidence of the injured witnesses implicitly to base the companyviction of the respondents? It would appear from the evidence adduced that there is numbercommon object or intention to kill deceased. It would appear that it is a case of free fight between the accused party and the prosecution party on account of the quarrels between the two families. There is evidence that some of the accused suffered injuries in the same transaction and the prosecution has number explained injuries on them. In those circumstance the liability of each of the accused has to be companysidered independently, In that attempt, we have scanned the evidence of injured witness carefully vis-a-vis the reasoning given by the High Court, It would appear that all the witnesses have improved upon their version stated in the statement recorded under Section 161, Cr.P.C. In fact, the Sessions Court itself has numbered that some of the witnesses have spoken falsely in their evidence with regard to some of the accused. Under those circumstances, would it be possible to place implicit reliance on the evidence of these injured witnesses, though their presence stands companyfirmed? We have given our anxious companysideration to the facts it this case. We Find that it is absolutely difficult to place implicit reliance on their evidence. It is true that falsus in uno, falsus in imnibus has numberapplication in criminal trial. Court has to endeavour to separate the grain from the chaff and accept that part of the evidence which is found to be truthful and companysistent. Having made that attempt. we find that on the facts of this case, it is very difficult to separate the grain from the chaff. It is seen that the participation of five of the accused is totally disbelieved by the Sessions Court as well as the High Court. As regard the participation of the eight accused in the companymission of the crime, it is seen that witnesses fabricated and improved their version from stage to stage. Therefore, it would be very difficult to place implicit reliance on each of their evidence or cumulatively to companyvict accused 1 and 2. The two accused are alleged to have attacked the deceased. Each of the injuries is number independently sufficient to cause death. Moreover, in a case of free fight, Section 149 cannot be applied. It is difficult to accept the prosecution case to hold that A1 and A2 alone had attacked the deceased in the melee. It might be that some other had attacked the deceased. PW.9, father of the deceased is found to have given false evidence. On the facts and circumstances, neither Section 32 number Section 149 can be applied to any of the accused. It is seen that A1 and A2, namely, Chandvir and Rohtash are alleged to have attacked the deceased. In the narration of the facts, it was accused party which pitched upon to kill the deceased and they were armed with deadly weapons. If that be so, one would expect that all of them would have attacked the deceased in the first incident and if any other prosecution party attempted to intervene, they would have been beaten up, but that is number the evidence at the trial. It is seen from the evidence that A1 and A2 attacked the deceased only in midway while the attack on other parties was going on. Under these circumstances, if we disbelieve the version of the prosecution, as spoken in respect of A3 to A13, it would be equally difficult and unsafe to accept that part of the evidence that A1 and A2 alone attacked the deceased and companyvict them for the individual offences. As found earlier, on the state of evidence, the possibility of some other accused having attacked the deceased and of falsely implicating A1 and PW- 2, cannot, with reasonable certainty be excluded. Moreover, PW-9, Medu was found to have given false evidence and cumulative effect of the injuries is the cause of the death. Considered from this perspective, we find that it will be highly unsafe to accept the evidence of the witnesses to base companyviction of A1 and A2 for the offences of murder of the deceased-Rajpal punishable under Section 302 read with Section 32.
Hedge, C.J. 1 . These proceedings the companymon judgment of the Additional Sessions Judge, Delhi, in session cases 6 and 9 of 1966. In the said cases the Additional Session Judge companyvicted the appellants, Jai Singh and Prem Singh an offence under S. 302 read with S. 34 of the Indian Penal Code and sentenced Jai Singh to death, subject to the companyfirmation of the sentence by this companyrt, but, Prem Singh was sentenced to suffer imprisonment for life. Murder reference No. 49 of 1966 is a reference made by the learned Additional Session Judge under s. 373 of the Criminal Procedure seeking companyfirmation of the death sentence imposed on Jai Singh. Criminal Appeal No. 93-D of 1966 is the appeal filed by jai Singh, and Criminal Appeal No. 912-C of 1966 is the appeal submitted by Prem Singh through the superintendent, Central Jail. New Delhi. Briefly stated the case for the prosecution is as follows The deceased Faqui Chand Soni was the principal of the Commercial College situate in Park Mansion, Darya Ganj, Delhi. The Appellants were working in that companylege as peons. The Appellant Jai Singh entered service earlier. It was at his instance that Appellant Prem Singh was appointed by the deceased. On August 9, 1965 the deceased gave to the Appellant Jai Singh a sum of Rs. 42 for purchasing ghee for him from Elhi Municipal companyoperative Stores. But jai Singh returned after a companysiderable time and reported that somebody had picked his pocket and had robbed him of the aforementioned sum of Rs. 42. The deceased did number believe that version. Therefore, he asked jai Singh to show his pocket. At that state, Jai Singh changed his version and told the deceased that the amount in question had fallen out of his pocket. Then the deceased took Jai Singh to task and reprimanded him. At that time Jai Singh began to behave rudely towards the deceased. This attitude of the Jai Singh made the deceased to companyplain against him to the police. On that companyplaint Sub Inspector Kundan Lal came to the premises, where the deceased was running his companylege, and took into custody jai Singh. For a time he was kept under companyfinement. Thereafter, he was challaned under S. 107/151 of the companye of Criminal Procedure. The companyrt released Jai Singh on bail. On the entreaties of jai Singh, the deceased re-employed him on august 19.1965, and thereafter he companytinued to work in the office of the deceased. But all the same Jai Singh nurtured enmity towards the deceased and on August 30, 1965, the two Appellants companyspired to murder him and accordingly on that evening, after the students and the staff left the premises, they strangled him to death, put his dead body in his office room closed the same and bolted it and locked the two rooms infront of it. Thereafter they came downstairs and sent away on false pretexts P.W. 28 Man Bahadur, the Chaukidar attached to the companylege, and P.W. 29 Ram Singh, one of the peons attached to that companylege, After doing so, they left Delhi and absconded till they were arrested several months thereafter. In early hours of the morning, the wife of the deceased seeing that her husband had number returned home in the night, sent her son P.W. 23 Jugal Kishore and a neighbour to find out where the deceased was They discovered the dead body of the deceased in the office room. It is satisfactorily proved that Faquir Chand Soni was murdered in his companylege premises on the night of august 30-31, 1965. The evidence of P.W. 2 Dr. G.C. Mittal companyclusively establishes that the deceased was throttled to death. The opinion has number been challenged before us. It is clear from the evidence of P.W. 28, Man Bahadur and P.W. 29, Ram Singh, which evidence we accept, that the deceased was alive at about 8-30 p.m. on August 30,1965. It is equally satisfactorily proved from the evidence of a large number of witnesses that on the early morning of August 31, 1965, the deceased was found dead. On this point we have the evidence of P.W. 23 Jugal Kishore, P.W. 28, Man Bahadur and several others, Up till this stage there is numbercontroversy. The question for companysideration is whether the prosecution has satisfactorily established that both or any of the Appellants was responsible for the murder of the deceased . The evidence available against each of the two Appellant may bee analysed under three broad heads, i.e The companyfessional statement made by each of them. The companyfession of the companyaccused, and The circumstantial evidence. At the very outset I may say that the prosecution has number examined anyone who claims to have witnessed the occurrence. We first take up the case against Jai Singh. In Convicting him, the Court below has relied on the companyfession made by him before P.W. 42 Mr. D.V. Kapoor, Sub-Divisional Magistrate, Delhi. In addition , it has also relied on the several circumstances put forward by the prosecution. It will be companyvenient to take up first for companysideration, his companyfessional statement Exhibit P.A. A. A/3. Before a companyfession can be relied on, the Court has to see whether the same was made voluntarily and whether the facts stated therein ca be accepted as true. The companyrt below has companye to the companyclusion that the companyfession in question was voluntarily made. The only ground, on which the voluntary character of his companyfession was assailed before us by Mr. Frank Anthony, the learned companynsel for jai Singh, was that Jai Singh was in police custody for about 9 days prior to his being produced before Mr. Kapoor on December 20, 1965 for recording his companyfession. The police were having the custody of Jai Singh during the period in question under orders of the magistrate of the purpose of investigation. Hence the mere fact, that Jai Singh was in the custody of the police for about a period of 8 days before he was produced before the magistrate for recording his companyfession, by itself, is number a sufficient grounds for holding that the companyfession in question cannot be companysidered as having been made voluntarily. It must be remembered that after Jai Singh was produced before Mr. Kapoor, the latter placed him under judicial custody .for a period of 4 days, so that he may reflect over the matter and companysider the advisability of making a companyfessional statement. Thus he afforded him sufficient time to free himself from the influence of police, even if there was any. On the material on record, it is number possible to companyclude that the companyfession in question was prompted or induced by external forces. But the mere fact. That the companyfession, 10 question appears to have been voluntarily made, is number sufficient to rely on the same. The companyrt must go further and see whether the facts stated there in can be accepted as true. In his companyfession, dealing with the actual killing of the deceased Jai Singh stated thus I caught the sahib by his neck from behind, while Prem Singh wrapped a piece of cloth round his neck. Thereafter, I pulled that piece of cloth from one side, while Prem Singh from the other as a result where of the Sahib fell down on the ground. Then Prem Singh pulled the testicles of the sahib and I went to the room of the sahib, from where I picked up a purse companytaining Rs. 80/- one transistor, one watch and two fountain pens, and then came outside, where Prem Singh was also present. This version materially differs from that given by Prem Singh in his companyfession. That apart, that version does number accord with the medical evidence in the case. The post-mortem certificate issued by Dr. Mittal describes the injuries found on the dead body of the deceased thus 1 Lacerate wound 2/10 X 1/10 X skin deep on front of numbere Skin over the wound missing. Bruising of both lips in its whole length on inner surface along with superficial cuts by teeth edge. Lacerated would 2/10 X 1/10 skin deep on the right index finger Back aspect Skin over the would missing. Lacerated wound 3/10 X 1/10 x skin deep along with abrasions on front of right forearm lower end. Bruise 4 X 11/2 on outer aspect of chest right side. Bruise 11/2 X 1 on back of chest right side Bruise 1/2 X 1/2 on right side of neck 2 below the angle of joint with linear abrasions around. Bruise 1/2 X 1/2 on left side of neck front middle. Multiple linear abrasions 8 in number on front and sides of neck each 2/10 long. According to Dr. Mittal there was effusion of blood in the muscle bed under injuries Nos. 7 8 and 9 thyroid cartilage was fractured on left side in the region of left also hyoid was fractured on left side 1/2 front tear companynea pin point hemorrhages and upper part of larynx smeared blood had companye out from numbertrils and there was numberligature mark on the the opinion of the doctor, death was asphyxia from throttling and the injuries were possibly caused by nails and finger. We have earlier seen that according the companyfessional statement of Jai Singh was deceased was strangulated to death by putting a piece of cloth round his neck and the same by pulling from both the ends. What is stated in the companyfessional statement is true, then ordinarily there should have been ligature mark on the neck of the deceased any rate, if death had been caused in manner stated in Jai Singhs companyfessional statement, the injuries numbericed earlier, companyrt number have been there. In modis Medical Juri prudence and toxicology at page 160 fifteen edition it is observed thus Strangulation is a violent from of details which results from companystructing the neck by means of a ligature without suspending the body. It is called throttling, when companystruction is produced by the pressure of the fingers and palms upon the throat. Strangulation may also be brought about by companypressing the throat with a foot, knee, elbow or some other solid substances. Dr. Mittal has specifically stated that the deceased was throttled to death. His evidence gains companyroboration from the injuries, numbericed earlier. That evidence throws doubt on the version given by Jai Singh in his companyfession. Further Dr. Mittal did number observe any injury on the testicles of the deceased . hence it is number possible to hold that the facts stated by Jai Singh in his companyfession, at any rate those relating to the manner of killing the deceased , are true as such, it is number possible to rely on the companyfession of Jai Singh. This leaves us with the circumstance evidence appearing against him. Circumstantial evidence has its own limitations. Before acting on the evidence, the Court must first see whether the circumstances put forward are satisfactorily proved and whether the proved circumstances are sufficient to bring home satisfactorily the guilt to the accused. The established circumstances must number only be companysistence with the guilt of the accused, but at the same time they must be inconsistent of his innocence. While appreciating circumstantial evidence. The companyrt should number view in isolation the various circumstances . It is necessary to take an overall view of the matter, but without substituting companyjectures for legal inferences. I shall bear in mind these principles while examining the circumstances put forward against the Appellant Jai Singh. It is an admitted fact that Jai Singh was in the service of the deceased for several years prior to the murder of the deceased. It is also admitted that he was in the service till August 9, 1965. Evidence has been adduced to show that on august 9, 1965, the Appellant Jai Singh has given Rs. 42/- by the deceased for purchasing ghee, but Jai Singh came back and told the deceased that his pocket has been picked and the money question had been stole. Then the deceased asked jai Singh to show him the pocket. At that stage, Jai Singh changed his and told the deceased that the months had from his pocket , upon the deceased him. Jai Singh in his statement of Section 342 of the Code of Criminal by had admitted all these facts Evidence been lead to show that at the instance deceased , Jai Singh was arrested and and that later on he was released bail. Jai Singh has admitted these facts. The fact thus established prima facie show that Jai Singh had reasons to be inimically opposed towards the deceased . There is companysiderable evidence in the case to show that some days after Jai Singh released on bail, the deceased re employ him. On this point we have the testimony W 23, Jugal Kishore, son the deceased to the deceased s companylege. P.W. 29, Jai Singh, the peon attached to that companylege P.W. 38 K.C. Mishra, an Ex employees the deceased . We see numberreason to disbelieve the evidence of these witnesses. In particular see numberreason to disbelieve the evidence K.C. Mehra. Nothing was said against him accept that at one time he was the employee the deceased. He was number serving in the allege in question at the time he gave evidence in the case. Jai Singh denied the fact that he rejoin the duty after he was arrested on august 9, 1965. According to him, he left Delhi on August 9, 1965. This version is companypletely falsified . the testimony of D.W. 2 Narain Das, elder brother of the accused who stated in his cross examination that Jai Singh went away from the house on the morning of August 31, 1965. To prove that Jain Singh was in the service of the deceased till the date of the murder, the companylege attendance register has been produced. He was companytended on behalf of the accused that the entry relating to Jai Singh in the attendance register was fabricated during the investigation of this case. As we see numberreason to disbelieve the evidence, referred to earlier we have thought it necessary to companysider the genuine of that entry. Arguments were advanced on behalf Jai Singh to show that he companyld number have any enmity against the deceased if the was generous enough to take him to duty and forget the past. Adequacy given motive depends upon the mental up of the person companycerned. Further is evidence in this case to show that Jai Singh believed that the deceased re-employed cut of fear. We have it from the evidence of W. 28 Man Bahadur and P.W. 29, Ram gh. Which evidence we believe, that the last persons, who were seen in the companypany of the deceased during his lifetime, were Jai Singh and Prem Singh. Their evidence was criticised on the basis of immaterial companytradictions. But reading their evidence as a whole, we feel companyvinced that by and large they have given truthful evidence. It is true that they were still serving in the companylege in question at the time they gave evidence. But that by itself is numberground to disbelieve their testimony. Further their evidence, to a large extent, is companyroborated by the companytents of Exhibit. P.A. 1 the first information, given in this case, which as we shall presently see, was laid before the police as early as 5.50 a.m. on August 31.1965. It is seen from the evidence of Man Bahadur and Ram Singh that jai Singh sent them away at about 9 or 9.30 P.M. on the night of August, 30, 1965 from the companylege on false pretexts. As usual, those two witnesses were sitting near the stairs in the ground floor. The companylege was run in the second floor. According to these witness at about 9 or 9.30 P.M. on that night Jai Singh came downstairs and gave Rs.2/- to Man Bahadur and told him that the deceased wanted him to purchase bread and eggs for the second time and deliver the same at his house with the instructions that he the deceased would be dining out and that he would be late in going over to his house. All the same time he gave Rs.1/8 to Ram Singh and asked him to go and get chapatis and meal for him from a shop The evidence of these witnesses to an extent, is companyroborated by P.W. 23 Jugal Kishore and P.W. 36 Smt. Sushila Soni. The owner of the shop from who Ram Singh purchased chapatis and meal, companyroborates him. We are in agreement with the Court below that the evidence in question is acceptable Man Bahadur and ram Singh deposed that when they returned after doing what they were asked to do, the Appellant were number there. We attach numberimportance to the circumstance that the police did number seize the chappatis and meat brought. Then we have evidence to show that on the night of September, 2-3.1965 Jai Singh and Prem Singh were found loitering in the railway platform at Mathura, and they had numberticket. Therefore they were produced before a Railway Magistrate. They were companyvicted and fined. They were unable to pay the fine. Hence the Jai Singh left as security Exhibit P.20, the transistor, which he had with him. Thereafter, on the next day, he pledged that transistor with P.W. 10 Ragbhir Singh for a sum of Rs.30/- and from that sum bee paid the amount of fine. All these facts are admitted by Jai Singh in his statement under Section 342 of the Code of Criminal Procedure. From the evidence of P.W. 123 Gyan Parkash, Manager of Krishna Theatre, Party, we have it that Jai Singh and Prem Singh joined the companycern as employees and that Jai Singh was in his service till December 5, 1965. While joining the service there, he gave his name as Govind, Jai Singh, in his statement, has admitted these facts. He has numberexplanation as to why he gave a false name while seeking employment in the Theatre in question. There is unimpeachable evidence of P.W. 25 Raj Karan to show that the arrest warrant issued against Jai Singh, companyld number be executed either in Delhi, or in his native village till the middle of December, 1965. The evidence on the record shows that he was absconding. This evidence was number challenged before us. There is numberevidence to show that while in police custody, he made the disclosure statement Exhibit P.O in pursuance of which exhibit P. 20, The transistor was recovered from P.W. 10 Raghbir Singh. That fact is number denied by the accused, But we are in agreement with Mr. Frank Anthony that some of the statements in Exhibit P.O are inadmissible in evidence. The only portion that is admissible is I had pawned the transistor with a servant of a tea stall owner at Railway Station, who sells tea on the platform, for Rs.25/- The past history of the transistor found in that statement is numberdoubt inadmissible in evidence. But then it must be remembered that Jai Singh stated about the pawning of the transistor in question in the companyrse of the investigation in the murder of the deceased . What is important is number the discovery of the transistor. Transistors were discovered years back. But the statement in question was made in the companyrse of an investigation of the charge of murder of Faqur Chand Soni, against him. From the evidence of P.W. 23 Jugal Kishore, P.W. 28, Man Bahadur and P.W. 40 Sushil Kumar, it is proved that the transistor Exhibit p.20 belonged to the deceased. From the evidence of man Bahadur we further get it that the transistor in question was with the deceased on the day of the occurrence. It is true that Exhibits, p.20 is of a companymon type of transistor. The deceased had a transistor similar to Exhibit p.20 is beyond doubt See Exhibits P.Y. it is proved that he had a licence of a transistor. The person who sold a transistor to him, Mohd Usmas P.W.19 has companye and deposed to the sale. The mechanic, who manufactured the transistor, exhibit P.20 Abdul Samad, P.W. 20 has spoken to its manufacture,. It is true that numberwitness has spoken of any special identifying mark found in the transistor that was with the deceased . But from the evidence available, the only reasonable inference is that the deceased was the owner of Exhibit p.20 and that he was in possession of the same at about the time of his murder. In this companynection, it is necessary to examine the version given by Jai Singh. As seen earlier he admits having pawned Exhibits P.20 with P.W. 10 Regbir Singh. He was in a position to tell the Court as to how he came by Exhibit P.20. Admittedly, the version put forward by him at about the time pawning of the transistor was that he had purchased the same in Delhi. Further, he had told P.W. 10 Raghbir Singh that he had a licence for the same, which he had kept in his attache-case, which had been lost. Even according to Jai Singh, those version are false. He has numberexplanation for giving false versions. His present version is that the transistor in question belongs to his brother D.W. 2 Narain Dass and that he took it away from his house. D.W. 2 wants us to believe that one Om Prakash and Jai Singh took it away from his house during his absence on August 31, 1965. D.W. 2 is necessarily an interesting witness. That apart, his evidence is wholly unbelievable. The same was number companymended for acceptance by the learned companynsel for Jai Singh and Om Prakash, whose address he does number know pawned it with him. Admittedly he had numberlicence for the transistor in question. The companytention of Mr. Antony that we should disbelieve the prosecution version that the deceased had a transistor because he did number obtain a licence before purchasing it, is wholly unacceptable. We see numberforce in the above companytention. On a review of the entire evidences in the case, we are satisfied that the transistor Exhibit P20 belonged to the deceased. The circumstances proved in the case, in my opinion, satisfactorily establish that the accused stole the transistor at about the time of the murder of the deceased. The rule laid down by the Supreme Court in Tulsiram Kanu v. The State, Air 1967 Delhi 1954 S.C. 1 and Wasim Khan v. The State of Uttar Pradesh is applicable to the facts of the present case. Now we shall companye to the companyments made on the prosecution evidence. Our attention was invited to the fact that the first information does number make any reference to the theft of the transistor, though that fact was known to P.W. 28 Man Bahadur even before the first information was laid. On that ground we are asked to reject the prosecution version that the transistor was stolen at the time of the murder of the deceased. Evidently P.W. 23 Jugal Kishore did number companynect the loss of the transistor with the murder of his father. It is clear from the information given by him that he had proceeded on the basis his father was murdered by the appellant a result of enmity. It may be that either P.W. 23 Jugal Kishore and P.W. Man Bahadur were mixing up facts when they stated that they knew about the missing of the transistor even before the first information was laid. the case, or that they did number attach much importance to that circumstance. In either case, it does number affect the merits of the case. In fact, that numberinvestigation was directed towards the missing of the transistor till the arrest of Jai Singh, has numberimportance on the facts of circumstances of this case. From the evidence of P.W. Jugal Kishore, it is seen that he found his father dead at about 5.30 a.m. on August 31, 1965. He immediately telephoned to the police the same. P.W. 31 E. Tika Ram recorded the message. That record is marked as Exhibit P.V.V. That gives the name of the informer Swami and it further shows that the gave information that his father was murdered khun kar rahe hain . Jugal Kishore P.W. 23 denies having given this information. According to him, he gave the information on the phone in English and said that his father had been murdered. Exhibit P.V.V. is in Hindi. It is clear that the name of the informant is wrongly mentioned there. P.W. 23s signed statement was recorded within about 5.50 a.m. That statement companytains the present version. I am of the opinion that out of companyfusion P.W. did number give the facts companyrectly, when he spoke on the phone. Further, Exhibit P.V.V. cannot be companysidered as the first information. It was neither read out to the informant number signed by him. Hence it does number fulfill the requirements of section 154 of the Code of Criminal Procedure. Its authenticity cannot be relied on. I do number think, there is any need to refer to the decided cases read to us on this point. The fact that in the general diary of the Station, the names of the persons who murdered the deceased were number mentioned., is number a circumstance that militates against the prosecution case. At the time those documents came into existence, it was number known, who had murdered the deceased though Jugal Kishore had suspected that the appellants might have done it. I see numberforce in the companytention of Mr. Frank Anthony that the first information Exhibit P A/1 must have been recorded after the inquest report was submitted. There is numberreal basis for that companytention. Discrepancy as regards the exact time of murder is of numberimportance in this case. I am in agreement with Mr. Frank Anthony that P.W. 37 G.B Mathur is number a reliable witness. The trial Court did number rely on his evidence. According to the defence, he is a procured witness. It appears to be so. I have number placed any reliance on his evidence in companysidering the case against the appellants. Hence numberpurpose will be served in resummoning him, as desired by the defence, for companyfronting him with some of the statements said to have been made by him during investigation. The Court below was number able to reliance on certain portions of the evidence of P.W. 18 Dev Raj and P.W. 35 Sewa I think, it was right in doing so. Their to the extent it was rejected by the below is artificial. But fact that in the prosecution case there are a few unacceptable even forged links, if the Court is fully satisfied with the remaining evidence, is numberground to discard the entire prosecution case. case has to be judged on its own merits. If possible to separate the grain from the it is the duty of the Court to do so. For the reasons mentioned above, I the companyviction of Jai Singh under Section 302 of the Indian Penal Code. So far as Prem Singh is companycerned, the Court below did number accept the statements made by him in his companyfession as being wholly true. According to his companyfession, he did number do anything till Faqir Chand Soni was dead. Therefore, his statement Exhibit P.B. B. B/4 is numberconfession in law. The facts stated in that statement do number accord with the medical evidence. Hence the companyfession in question has to be rejected, as it cannot, in any case, be accepted in full. We have already rejected the companyfession of Jai Singh. Hence the same cannot be taken into companysideration under Section 30 of the Evidence Act, against Prem Singh. The only remaining evidence against him is that he fled from Delhi with Jai Singh, after the murder of Faqir Chand Soni moved about with him for some time took up employment in the Krishna Theatre with him, giving his name falsely as Kundan Lal and was absconding for about 4 months. This evidence, numberdoubt, raises a great deal of suspicion against him. But it is insufficient to establish his guilt. Hence he is entitled to the benefit of doubt. In the result, Prem Singhs appeal Criminal Appeal No. 912 C of 1956 is allowed and he is acquitted. He shall be set at liberty forthwith. But Jai Singhs appeal Criminal Appeal No. 93-D of 1966 is dismissed. Now companying to the question of sentence, taking into companysideration the facts and circumstances of the case and in particular that he was only about 18 years old at the time of the companymission of the offence, I think the ends of justice will be met if he is sentenced to suffer imprisonment for life. It is ordered accordingly. Hence murder reference No. 49 of 1966 is rejected. H.R. Khanna, J I agree. BK NRK G.G.M.
ORIGINAL JURISDICTION Writ Petition No. 3130 of 1981. Under Article 32 of the Constitution of India . Soli J. Sorabjee, Harish N. Salve, K.K. Patel, Ujwal Rana, Rajiv Dutta and K.K. Mohan for the Petitioners. Parasaran, Attorney General, B. Datta, Additional Solicitor General, Kuldip Singh, Additional Solicitor General, Ms. A. Subhashini, C.V. Subba Rao, Mrs. Sushma Suri, A. Subba Rao, A.K. Srivastava and P.P. Singh for the Respondents. The Judgment of the Court was delivered by PATHAK, CJ. By this writ petition under Art. 32 of the Constitution the petitioners seek relief against the imposition of customs duty at 150 per cent on their import of edible oils into India. The petitioners entered into a companytract with foreign sellers for the supply of edible oils. The companysignment of edible oils was sent by the ocean going vessel M.V. Kotta Ratu. The vessel approached Bombay and made its prior entry on 4 July, 1981. It actually arrived and registered in the Port of Bombay on 11 July, 1981. The petitioners say that the Port authorities at Bombay were unable to allot a berth to the vessel, and as she was under heavy pressure from the parties whose goods she was carrying she left Bombay for Karachi for unloading other cargo intended for that port. It is alleged that the vessel set out on its return journey from Karachi and arrived in the Port of Bombay on 23 July, 1981 and waited for a berth. On 4 August, 1981 she was allowed to berth in Princess Docks C Shed and the Customs Authorities made the final entry on that date. The petitioners point out that when the vessel made its original journey to Bombay and was waiting in the waters of the Port the petitioners presented the Bill of Entry to the Customs authorities on 9 July, 1981, that the Bill of Entry was accepted by the Import Department and an order was passed by the Customs Officer on the Bill of Entry on 18 July, 1981 directing the examination of the companysignment. It is stated that the Customs authorities have imposed customs duty on the import of the edible oils effected by the petitioners at the rate of 150 per cent on the footing that the import was made on 31 July, 1981, the date of Inward Entry. The case of the petitioners is that the rate of duty leviable on the import should be that ruling on 11 July, 198 1, when the vessel actually arrived and registered in the Port of Bombay, and that but for the fact that a berth was number available the vessel would have discharged its cargo at Bombay, and would number have left that Port and proceeded to Karachi to return to Bombay towards the end of July, 1981. Alternatively, the case of the petitioners is that if it be found that the rate of customs duty attracted by the import effected by the petitioners is 150 per cent the levy is unconstitutional and void as a violation of Art. 14 of the Constitution inasmuch as customs duty at 5 per cent only was levied on the State Trading Corporation on similar Imports of edible oils made by it as an importer. The petitioners have also challenged the validity of s. 15 of the Customs Act, 1961 under which the rate of duty and tariff valuation is determined. To resolve the issue between the parties it is necessary to ascertain the effective date with reference to which customs duty becomes payable on imports into India. Section 15 1 of the Customs Act, 1962 provides The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force ,-- a in the case of goods entered for home companysumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section b in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse c in the case of any other goods, on the date of payment of duty Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards. The rate of duty and tariff valuation applicable to the imported goods is governed by cl. a of s. 15 1 . In the case of goods entered for home companysumption under s. 46, it is the date on which the Bill of Entry in respect of such goods is presented under that section. S. 46 provides that the importer of any goods shall make entry thereof by presenting to the proper officer a Bill of Entry for home companysumption in the prescribed form, and it is further provided that a Bill of Entry may be presented at any time after delivery of the Import Manifest or an Import report. The Bill of Entry may be presented even before the delivery of such Manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation. Section 47 empowers the proper officer, on being satisfied that the goods entered for home companysumption are number prohibited goods and that the importers had paid the import duty assessed thereon as well as charges in respect of the same, to make an order permitting clearance of the goods for home companysumption. According to the petitioners, the cargo of edible oil companyld number be unloaded in Bombay during the original entry of the ship into the Port for want of an available berth, and it is for numberfault of the petitioners that the vessel had to proceed to Karachi for unloading other cargo. Section 15, the petitioners companytend, is arbitrary and vague and therefore unconstitutional because it provides numberdefinite standard or numberm for determining the rate of duty and tariff valuation and does number take into account situation which are uncertain and beyond the companytrol of an importer. The petitioners companytend that the rate of customs duty chargeable on the import of goods in India is the rate in force on the date when the vessel carrying the goods enters the territorial waters of India. The petitioners point out that s. 12 1 declares that customs .duty will be levied at the rates in force on goods imported into India, and the expression India, they urge, is defined by s. 2 27 as including the territorial waters of India. In other words, the petitioners companytend that when the vessel entered the territorial waters on 11 July, 1981 the rate of customs duty at 12.5 per cent ruling on that date was the rate which was attracted to the import. In any event, the petitioners companytend, the rate should number have been more than 42.5 per cent because that was the rate of customs duty ruling on 23 July, 1981 when the vessel entered the port of Bombay. To preserve the validity of s. 15 the petitioners urge, we must read the expression the date of entry inwards in the proviso to s. 15 1 as the date on which the vessel enters the territorial waters of India. Learned companynsel for the petitioners says that if this interpretation cannot reasonably be given to the provisions of s. 15 1 then it becomes necessary to question the companystitutional validity of s. 15 on the ground that the terms of that section are vague and arbitrary, and therefore numberrecourse can be had to s. 15 1 . Considerable reliance has been placed by the petitioner on Shawney v. M s. Sylvania and Laxman Ltd., 77 Bom. R. 380 in support of the submission that-the taxable event occurs when the vessel enters the territorial waters of India and it is that date which should determine the rate at which import duty can be levied. It is desirable, we think, to appreciate what was said in that case. The Bombay High Court held there that the date on which the vessel enters the territorial waters is the relevant date for determining whether the import of goods carried by it falls within the scope of the Customs Act. If the import of the goods is exempt from the operation of the Act on that date, the learned Judges said, the provisions of s. 15 of the Act will number companye into play, and therefore the import will be free from duty. A distinction was made between a case where the import of goods stands exempted on the date when the vessel enters the territorial waters of India and a case where the import falls within the operation of the Act on that date but the duty is rated at nil or at a certain figure. The distinction was discussed by a Full Bench of the Bombay High Court in Apar Private Ltd. and Others v. Union of India and others, 1985 22 E.L.T. 644 where Madhava Reddy, C.J., speaking for the Court, observed If the goods were wholly exempt from basic customs duty leviable under the Customs Act, when they entered the territorial waters of India, numberbasic duty of customs would be leviable thereon even if such exemption were withdrawn under Section 25 1 of the Customs Act before the goods are releasedfor home Only if the goods were chargeable to some basic customs duty under the Customs Act, when they entered the territorial waters of India, than the rates in force at the time when the bill of entry is presented or at the time when the goods are sought to be cleared for home companysumption, as the case may be, would be applicable and the basic duty would be quantified and demanded at those rates. And in Jain Shudh Vanaspati Limited v. S.R. Patankar, Asstt. Collector of Customs, Bombay and Others, 1988 33 L.T. 77 the Bombay High Court proceeded on the basis that where the imported goods were totally exempt from payment of customs duty on the date when the vessel entered the territorial waters of India, the taxable event was number postponed to the date when the goods were cleared for human companysumption. In the present case. there is numberdispute that on the date when the vessel first entered the territorial waters of India by July, 198 1 the rate of customs duty was 12.5 on the import of the goods in question and thereafter when the vessel returned from Karachi and entered the territorial waters of India the rate of duty was 42.5. We express numberopinion on the soundness of the view taken by the Bombay High Court in the cases mentioned above it is sufficient to point out that on the facts they afford numberassistance to the petitioners. The rate of duty and tariff valuation has to be determined in accordance with s. 15 1 of the Customs Act. Under s. 15 1 a , the rate and valuation is the rate and valuation in force on the date on which the Bill of Entry is presented under s. 46. According to the proviso, however, if the Bill of Entry has been presented before the entry inwards of the vessel by which the goods are imported, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards. In the present case the Bill of Entry was presented on 9 July, 1981. What is the date of entry inwards of the vessel? We may refer to the detailed procedure in this matter set forth in the companynteraffidavit of Shri R.S. Siddhu, then under Secretary to the Government of India. Before the arrival of the vessel the Master of the vessel or his Agent informs the Port authorities and the Customs authorities of the probable date of arrival of the vessel. This information is technically known as presentation of the Import General Manifest. In this Manifest the Master intimates the details with regard to the cargo carried by the vessel. In the instant case the Manifest was companyveyed by the Steamer Agent on 6 July, 1981 by his letter No. IM/394/81/1116. Admittedly this intimation or presentation of the Manifest on 6 July, 1981 was prior to the arrival of the vessel. The presentation of the Manifest can be effected either before the arrival of the vessel or after its arrival in the usual companyrse. In the forwarding letter dated 6 July, 1981 mentioned above, the Shipping Agent informed the authorities that the ship would be arriving at Bombay 12 July, 1981. According to the numbermal procedure, if the intimation or presentation of the Manifest is made on the arrival of the vessel it is accompanied by an application for Entry Inward within 24 hours of arrival. In the instant case since the vessel was to arrive later there was numberapplication accompanying the letter dated 6 July, 1981. The vessel arrived on 11 July, 1981. On receipt of the Manifest a prior entry is made in the Register, which is called the Register of Inward Outward Entry of vessels. Upon the recording of the prior entry a rotation number is given and companyveyed to the Shipping Agent or the Master of the vessel. In the instant case the prior entry or rotation number allotted was 743/PE. The Customs authorities display daily, on receipt of the Import General Manifests, the details of the vessels on a numberice board for the information of importers. On numbericing the arrival or expected arrival of the vessel from the Import General Manifest the importer or his clearing agent files his Bill of Entry. In this case the Bill of Entry was filed on 9 July, 1981. An entry with regard to presentation of the Bill of Entry is made in the Import General Manifest against the entry with regard to the companysignment belonging to the importer. The procedure thereafter is as follows. A vessel on arrival in the territorial waters has to await the allotment of a berth by the Port Trust. The Port Trust authorities, on receipt of information about the arrival of a ship, allot a berth, if it is available, for the discharge of the cargo. In the instant case, since numberberth was available, the vessel left for Karachi to discharge the cargo meant for that Port. The vessel arrived at Bombay on 23 July, 1981. Before its arrival, the Steamer Agent had presented a supplementary Manifest on 18 July, 1981 under companyer of his letter No. IM/394/81/ 1223. The prior entry made earlier in the Register of Inward Entry remained the same and the rotation number also companytinued to remain the same. Against the rotation No. 743 in companyumn No. 3 of the Register of Inward Entry the date of the arrival of the vessel was indicated as 23 July, 1981, and in companyumn No. 2 the date of Inward Entry was mentioned as 31 July, 1981. On 30 July, 1981 the Master of the vessel had made a declaration certifying that the vessel companyld discharge its cargo on 31 July, 1981, and it is on this basis that the Customs authorities granted the Entry Inward to the vessel for the purposes of discharging its cargo. It is urged on behalf of the petitioners that the import of the goods must be deemed to have taken place on 11 July, 1981, when the ship originally arrived in Bombay Port and registered itself. The rate of customs duty prevailing on that date was 12.5 per cent, and that, learned companynsel companytends, should be the rate applicable to the edible oil companysignment under s. 15 of the Act. The circumstance that the vessel was unable to secure a berth in the Port of Bombay companypelled it to proceed to Karachi to discharge the cargo pertaining to that Port, and but for the number-availability of the berth she would number have undertaken that voyage but would have companytinued in Bombay and discharged the edible oil companysignment there. The customs duty which companyld have been levied then would have been 12.5 per cent. It is pointed out that the vessel was unable to do so for numberfault of the petitioners and a reasonable companystruction must be given to s. 15 taking into account the particular circumstances of the case, so that the vessel must be deemed to have made the Entry Inwards on 11 July, 1981. We do number find it possible to accept this submission. The provisions of s. 15 are clear in themselves. The date on which a Bill of Entry is presented under s. 46 is, in the case of goods entered for home companysumption, the date relevant for determining the rate of duty and tariff valuation. Where the Bill of Entry is presented before the date of Entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards. In M s. Omega Insulated Cable Co., India Limited v. The Collector of Customs, Madras, Writ Appeal No. 537 of 1969 decided by the Honble Kailasam and Paul, JJ. on 9 July, 1975 the Madras High Court addressed itself to the question whether the words in s. 15 1 a of the Act, viz. date of entry inwards of the vessel by which the goods are imported mean the actual entry of the vessel inwards or the date of entry in the register kept by the department permitting the entry inwards of the vessel. The learned Judges examined the companyresponding provisions of the earlier statute and after companyparing the provisions of s. 15 with those of s. 16 of the Customs Act, 1962, and the amendments made from time to time, held that the date of entry inward for the purpose of s. 15 1 a and the proviso thereto is the date when the entry is made in the Customs register. We have companysidered the matter carefully and given due heed to the submissions of learned companynsel for the petitioners rounded, inter alia, on the provisions of the Sea Customs Act and the amendment made in s. 16 of the Customs Act and we are of opinion that the view taken by the Madras High Court in M s. Omega Insulated Cable Co. Ltd., supra represents the companyrect view. The amendment made in s. 16 of the Act appears to have been made by way of clarification and, in our opinion, does number detract from the companyclusion that the date of entry inwards of the vessel is the date recompanyded as such in the Customs register. In the present case, the date of inwards entry is mentioned as 31 July, 1981.1n the absence of anything else, we may take it that the entry was recorded on the date itself. Accordingly, the rate of import duty and the tariff valuation shall be that in force on 31 July, 1981. The companytention of the petitioners that the rate of import duty and tariff valuation will be that ruling on 11 July, 1981 cannot be sustained and is rejected. As to the question whether s. 15 of the Customs Act is ultra vires on the ground that arbitrary discretion has been companyferred on the customs authorities in the matter of determining the date of inward entry, it seems to us that having regard to the procedure detailed above there is numberscope for the submission that the provision is invalid. An entire series of companysecutive acts makes up the procedure, and it is reasonable to presume that each step in the series is companypleted on time. In that view of the matter, the challenge to the validity of s. 15 must fail. It is true that an amendment has been made in s. 16 in the case of the export of goods, and the rate of duty and tariff valuation applicable to export goods are number specifically referable to the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation, and it is apparent that numbersuch amendment has been made in the provisions of s. 15. The omission, it seems to us, is of numberconsequence when the procedure outlined above is being followed regularly and companysistently. There is numberhing before us to show that in following the procedure the Customs authorities act arbitrarily. Accordingly, we are of opinion that the claim made by the petitioners must be rejected. Finally, there remains the companytention of the petitioners that the differential treatment meted out to the petitioners by the imposition of a rate of 150 per cent companystitutes a violation of Article 14 of the Constitution on the ground that the rate applied to companyresponding imports by the State Trading Corporation is 5 per cent only. This point has already been companysidered by us, and the companytention has been rejected, in our judgment in M. Jhangir Bhatusha etc. v. Union of India Ors. etc., 1989 3 SCR 356 pronounced today. The Writ Petition is dismissed with companyts.
2001 10 SCC 476 The question before the High Court was whether the reservation of land for exploitation of mineral resources in the public sector was permissible under the Mines and Minerals Regulation and Development Act, 1957 read with the Mineral Concession Rules, 1960. Relying upon an earlier Division Bench judgment, the High Court answered the question in the affirmative and dismissed the writ petition filed by the appellant.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 258 of 1982. From the Judgment and Order dated 3.11.1981 of the Bombay High Court in Spl. Civil Appln. No. 2598 of 1978. B. Bhasme and V.N. Ganpule for the Appellants. PG NO 298 Dr. Y.S. Chitale. R.F. Nariman, B.H. Antia and Mrs. A.K. Verma for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by the tenant. It arises out of an order of eviction passed by the Civil Judge, Thane and companyfirmed by the learned Assistant Judge of Thane on or about 24th July, 1976. The High Court of Bombay on or about 3rd November, 1981 dismissed an application under Article 227 of the Constitution challenging the said decision. Civil Suit No. 176 of 1974 was filed by the respondent-landlord against the appellants for possession of the building called Jamshed Villa at Thane. The ground floor of the building companysists of one hall, tow bed rooms, two side rooms and a kitchen. The said premises was let out to one Shri S.H. Kulkarni the deceased father of the appellants some years ago by the respondent on the rent of Rs. 50 per month. The former owner, it is stated, terminated the tenancy of the appellants on 20th June, 1976, and the deceased Shri Kulkarni companytinued to occupy it as a statutory tenant. On the sale of the suit property the tenancy of Shri H. Kulkarni was duty attorned to the present plaintiff. Shri S.H. Kulkarni then expired. On 11th January, 1973 the respondents served the numberice upon the appellants requiring them to vacate the suit premises on various grounds. By the said numberice the respondent also called upon the appellants to pay the arrears of rent for the period from 1st September, 1971 to 31st December, 1972 at the rate of Rs. 50 per month. The total arrears came to Rs. 800. Indubitably, the amount claimed in this numberice was number paid by the appellants to the respondent. The appellants replied to the numberice. In that reply, several companytentions were urged. It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are irregular in paying the rent and further it was stated that the respondent required the suit premises reasonably and bona fide for his personal use and occupation. The learned trial Judge after framing the issues, on all issues held in favour of the tenant except the issue of the arrears of rent. The learned trial Judge held that the appellants had failed and neglected to pay the arrears of rent within the statutory period in spite of the numberice under Section 12 2 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter called the Act . The trial companyrt, however, on the question whether the appellants have raised a substantial plea that the rent is excessive, did number go into this aspect in view of the decision of this Court in Harbanslal Jagmohandas Anr. v. Prabhudas Shivlal, 1976 3. S.C.R. 628. PG NO 299 Accordingly. the trial Judge decreed the suit on the ground that the are in arrears of rent. There was an appeal from the said. decision of the trial Judge to the learned Assistant Judge, Thane. The learned Assistant Judge affirmed the order of the learned trial Judge but reiterated that the tenant companyld claim protection from the operation of Section l2 3 a of the Act, only if the tenant had made an application within one month from the service of the numberice under Section I,? i of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. It is companymon ground that the appellants in this case did number make any application within one month from the service of the numberice under Section 12 2 of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. The learned Assistant Judge, therefore, companyfirmed the order for eviction. The appellants moved the Bombay High Court. The Bombay High Court by the judgment under appeal on 3rd November,1981 dismissed that application holding that neglect on the part of the appellants in making payment as mentioned in Section I2 3 a of the Act has to be decided on the facts of each case. The High Court reiterated that after companysidering all the facts and circumstances both the Courts below had rightly companye to the companyclusion that there was on the part of the appellants within the meaning of Section l2 3 a of the Act, meriting a decree for eviction. Shri Bhasme appearing for the appellants companycluded before us the High Court was wrong and did number properly companysider the companyduct of the respondent in number giving receipts. Before we companysider this companytention, it may be appropriate to refer to the provisions of Section 12 of the Act. It provides that the landlord shall number be entitled to the recovery of possession of any premises a, long as the tenant days, or is ready and willing to pay, the amount of the standard rent permitted increases, it any. and observes and performs the other of the tenancy, in so far as they are companysistent with the of the Act. Sub-section 2 of Section 12 of also stipulate that numbersuit for recovery of possession shall be instituted by a landlord a tenant on the ground of number-payment of the standard rent or permitted increases due, until the expiration of one month next after numberice in writing of the demand of the standard rent or permitted has been served upon the tenant in the manner provided in 106 of the Transfer or Property Act, 1882. Subsection 3 a and b of Section 12 of the Act are important and set our here under 3 a Where the rent is payable by the month and there is numberdispute regarding the amount of standard rent or PG NO 300 permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after numberice referred to in sub-section 2 , the Court shall pass u decree for eviction in any such suit for recovery of possession. In any other case numberdecree for eviction shall be passed in any such suit if, on the first day of Hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter companytinues to pay or tender in Court regular l4 such rent and permitted increases till the suit is finally decided and also pay companyts of the suit as directed by the Court. . Emphasis supplied This question. as to how a payment to be made under Section 12 3 a and b , had been companysidered by this Court in Harbanslal Jagmohandas and Anr. supra . There, both the appeal raised a companymon question as to whether a tenant in order to resist passing of a decree of eviction under the provisions companytained in Section 12 3 a of the Act must dispute the standard rent within one month from the date of receipt of the numberice from the landlord terminating the tenancy on the ground of arrears of rent or whether a tenant can raise such . dispute in the written statement. There was difference of opinion between Bombay and Gujarat High Courts. The Gujarat High Court took,the view that the dispute as to Standard rent had to be raised within one month from the service of the numberice on the tenant.The Bombay High Court had taken a companytrary view and held that the tenant companyld raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of Section 12 3 a of the act would apply. In the Gujarat case, the High Court found that the tenant did number raise the dispute within one month of the service of the numberice terminating the tenancy. inter alia, on the ground of arrears of rent for more than 6 months. In the Bombay appeal the dispute was number raised within one month from the date of the receipt of the numberice. It was, however. raised in the written statement. Under Section 11 of the the Court had power to determine standard rent when there was a dispute between landlord and tenant regarding the amount of standard rent. It was held by this Court that under Section 12 of the Act the landlord is number untitled to recover possession of the premises so long as the tenant pays or is PG NO 301 ready and willing to pay the amount of standard rent and permitted increases. Section 12 2 provides that numbersuit for recovery of possession shall be instituted by a landlord against a tenant on the ground of number-payment of the standard rent until the expiration of one month next after numberice in writing of the payment of the standard rent. This Court held that the view of the Bombay High Court was erroneous and the view of the Gujarat High Court was companyrect. Sub-section 3 a of section 12 categorically provided that where the rent was payable by the month and there was numberdispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after numberice referred to in subsection 2 , the Court shall pass a decree for eviction in any such suit for recovery of possession. In the instant case, as has been found by the Court. the rent is payable month by month. There is numberdispute regarding the amount of standard rent or permitted increases. Such rent or increase are in arrears for a period of six months or more. The tenant had neglected to make payment until the expiration of the period of one month after numberice referred to in subsection 2 . The Court was bound to pass a decree for eviction in any such suit for recovery or possession In terms of the decision of this Court in Harbanslal Jagmohandas supra , the eviction order had to follow by operation of law. Shri Bhasme, however, submitted before us that here there was numberquestion of negligence in proper light because he drew our attention to several letters whereby the tenant to pay then rent of the landlord. The tenants case was that the landlord Was number granting receipts. The landlord was number demanding rent but was demanding. companypensation for use and occupation. He drew our attention to several decision and urged that the tenant was willing to pay the rent provided receipts were granted to him. Shri Bhasme urged that the landlord did number companyply with the request to give written receipts. He was punishable with fine which might extend to one hundred rupee under sub-section 2 of Section 26 of the Act. Shri Bhasme submitted that in this case. the landlord was mala fide and by his mala fide act he was preventing the tenant from performing his obligation. He further urged that this was number a case of bona fide need. The landlord was. affluent and the tenant was a poor. There was a great shortage of accommodation. In view of the decision of this Court in Harbanslal jagmohandas and Anr. V. Prabhudas Shivlal supra and the provisions. of Section l2 3 a and b and in the Court below were right. circumstances of the case, we must hold that the Courts below were right. PG NO 302 Our attention was drawn to a decision of this Court in Mohan Laxman Hede v. Noormohamed Adam Shaikh, A.I.R. 1988 C. 1111, where this Court reiterated that to take advantage of protection from eviction under Section l2 3 b of the Act, it cannot be said that exact or mathematical punctuality was required in the deposit of rent by a tenant. The tenant had been depositing the rents in that case in Court for two or three months at a time. There the Court was companycerned with the expression regularly as companytemplated in clause b of sub-section 3 of Section 12 of the Act. It was number companycerned with clause a of sub-section 3 of Section 12 of the Act. It was number companycerned with the question of total failure or neglect on the part of the tenant to pay the rent. It may be instructive in this companynection to numbere that in sub-section 3 a of Sec. 12 of the Act, the expression Court shall pass a decree was substituted for the words Court may pass a decree by an amendment passed in 1963, making it mandatory to pass the decree. When the Legislature had made its intention clear in specific terms, there was numberscope for Shri Bhasmes appeal to the spirit of the law and number to the strict letter of the law. In the aforesaid view of the matter, this appeal fails and is accordingly dismissed. But in the facts and circumstances of the case. the parties will pay and bear their own companyts. Furthermore, in order to cause less hardship in the situation, we direct that the appellant will have six months time to vacate the premises in question, provided they file an undertaking within six weeks from this date to this Court that they will deliver vacant possession of the premises to the landlord after the expiry of six months from this date and to go on paving rent companypensation until possession is given and number to induct or let anybody in the premises in question.
Dr D Y CHANDRACHUD, J 1 Leave granted. 2 The dispute in the present case relates to eighty eight workmen who had worked as Tyndals at the Kenduadih Colliery of the first respondent . On 14 May 1993 a Reference was made to the Industrial Tribunal by the appropriate government under Section 10 1 d of the Industrial Disputes Act, 1947, of the following dispute Whether the demand of Rashtriya Colliery Mazdoor Sangh for employment of Shri Arjun Paswan and 87 others, as per list attached is justified? If so to what relief the workers are entitled. The job description of Tyndals required these workmen to be engaged in moving engineering stores, drums of oil and grease and they were also responsible for setting up and dismantling of structures, as well as the installation and withdrawal of machinery. The Industrial Tribunal by its Award dated 16 July 1996 held that it is beyond the question that the persons worked under the companytractor are genuine one who are the present workmen and they performed the job which was of permanent and perennial in nature and the person performing the same type of job in other companylieries were regularized and so numberdoubt a stepmotherly attitude was taken so far these companycerned workmen are companycerned. The Tribunal directed the management to form a panel of the companycerned workmen in accordance with seniority and to absorb or regularize them either in the work of Tyndal or in any suitable category so that the list is exhausted within a period of one year. Backwages were denied. 3 The first respondent filed a writ petition before the Jharkhand High Court to challenge the Award CWJC 1655 of 1997 . On 18 May 2004 a learned Single Judge of the Jharkhand High Court modified the Award of the Industrial Tribunal and directed that as and when the management intends to employ regular workmen, it shall grant preference to the workmen governed by the Award if they are otherwise suitable by relaxing the requirements of age and academic qualifications. This order of the High Court attained finality. 4 In 2007 the Union representing the workmen filed a writ petition before the High Court WP L 4915 of 2007 seeking implementation of the order dated 18 May 2004. While disposing of the writ petition on 24 September 2010 the High Court recorded the statement of the management that numbervacancy had occurred in the post of Tyndal since the judgment which was rendered on 18 May 2004. However, the High Court recorded the undertaking of the management that if any vacancy arises in future and the post is advertised for which the workmen apply, they would be companysidered for the post and that the management would also accommodate them if there was a vacancy under any other category. Thereafter, a Review Petition was filed before the High Court based on information which was obtained under the Right to Information Act. The learned Single Judge held that the employment which was granted by the management between 2004 and 2008 as disclosed in the response to the RTI query on 11 September 2008 indicated that the appointment was made only on companypassionate grounds. Once again, while disposing of the Review Petition the statement of the management was recorded that if and when posts were advertised, the workmen would be entitled to apply and would be companysidered. The rejection of the Review Petition has led to the filing of these proceedings. 5 The Appellant has relied on certain proceedings which took place in another distinct reference to the Industrial Tribunal, Reference 204 of 1994. The reference was at the behest of the Union representing the workmen engaged in one of the companylieries of the first respondent. An Award was made by the Industrial Tribunal on 14 August 2000 directing regularization of seventy workmen in general mazdoor category No.1. The Award was companyfirmed by a learned Single Judge of the High Court on 26 July 2001 while dismissing the writ petition of the management. However, in a Letters Patent Appeal the Award was modified by directing that as and when the management intended to appoint regular workmen, it would grant preference to the workmen companycerned in the reference, if necessary, by relaxing the companyditions of age and academic qualifications. The Union filed a Special Leave Petition under Article 136 of the Constitution before this Court. This Court by a Judgment and Order dated 18 November 2009, set aside the judgment of the Division Bench of the High Court and restored the Award of the Tribunal granting reinstatement without backwages. 6 The above judgment of this Court cannot companye to the aid of the Appellant for the simple reason that in that case, the Union had challenged the judgment of the Division Bench of the High Court before this Court. In the present case, the judgment of the High Court dated 18 May 2004 modifying the Award of the Industrial Tribunal attained finality. In fact, in their writ petition of 2007 the workmen sought implementation of the judgment rendered on 18 May 2004. The entitlement that the workmen claim must hence flow out of the judgment of the High Court by which the workmen were entitled to the grant of a preference in future employment by the management by relaxing companyditions of age and educational qualifications. This distinction has, in fact, been numbered in a judgment recently delivered by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor Sangh Bharat Coking Coal Ltd. C.A. 13953 of 1015 . This Court while declining to grant reinstatement allowed companypensation to fourteen workmen whose services were in issue, each in the amount of Rupees two lakhs in full and final settlement of all claims for companypensation. The relevant part of the judgment rendered by this Court on 3 October 2016 is extracted below 7 The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is numberoccasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has number been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same companyliery under the same companypany have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with numberpractical relief. This situation should be remedied, to the extent that is number permissible in law, having regard to the above background. In order to render full, final and companyplete justice, we are of the view that an order for the payment of companypensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice. 8 We accordingly direct that the Respondents shall deposit with the Central Government Tribunal No.2 at Dhanbad an amount of Rs. Two lakhs each towards companypensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal No.2 Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen companycerned subject to due verification of identity by the Industrial Tribunal. 7 In the present case, the companynter affidavit filed by the first respondent before this Court companytains a specific admission that the eighty eight workmen governed by the reference were working as Tyndals on surface as well as in underground mines through companytractors at Kenduadih Colliery. The companynter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas Tyndals are appointed in category IV. We may numbere at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was companystituted by the first respondent which by its report dated 2 January 2016 has observed that there is numbervacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower. 8 In the Judgment of this Court rendered on 3 October 2016, numbered earlier, reasons have been indicated as to why it would number be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has number been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking numbere of the fact that two sets of workmen in the same companyliery and under the same companypany have received unequal treatment, this Court ordered payment of companypensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as numbered earlier are companyprised in category IV.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 644 of 1972 From the judgment and order dated the 1st February 1972 of the Orissa High Court in Election Petition No. 3 of 1971. Gobind Das, and P. H. Parekh for the appellant. Narayan Nettar, V.J. Francis and B. Kanta Rao, for the respondent. The Judgment of the Court was delivered by BHAGWATI J.-This appeal is preferred under S. 116A of the Representation of the People Act, 1951 hereinafter referred to as the Act against the judgment of the Orissa High Court dismissing an election petition filed by the appellant challenging the election of the respondent to the Orissa Legislative Assembly from Melchhamunda companystituency in Sambhalpur district of the State of Orissa. The facts giving rise to the appeal may be briefly stated as follows There were general elections to the Orissa Legislative Assembly sometimes in the beginning of March 1971. The last date for filing numberination papers was fixed on 7th February, 1971 and on or before that date the appellant and the respondent both filed their respective numberination papers for the seat from Melchhamunda companystituency. On 9th February, 1971, which was the date fixed for scrutiny of the numberination papers, the appellant raised an objection against the numberination of the, respondent on the ground that he was disqualified under s. 9A of the Act. Section 9A provides inter alia that a person shall be disqualified if, and for so long as, there subsists a companytract entered into by him in the companyrse of his trade or business with the appropriate Government for the execution of any works undertaken by that Government. There is an explanation to this section which says that where a companytract has been fully performed by the person by whom it has been entered into with the appropriate Government, the companytract shall be deemed number to subsist by reason only of the fact that the Government has number performed its part of the companytract either wholly or in part. The allegation of the appellant was that the respondent had entered into five companytracts with the Government of Orissa for the execution of works undertaken by that Government and these companytracts were still subsisting and the respondent was, therefore, disqualified from companytesting the election under s. 9A. This objection raised on behalf of the appellant was overruled by the Returning Officer and the numberination of the respondent was accepted. The polling thereafter took place on 5th March, 1971 and the respondent was declared elected on 11th March, 1971. The appellant thereupon filed an election petition in the High Court of Orissa calling in question the election of the respondent on the ground that he was disqualified from being elected as a member by reason of s. 9A. The case of the appellant, as laid down in the election petition, was that, at the date of numberination five companytracts were subsisting between the respondent and the Government of Orissa in respect of the following works entrusted through the Gaisilet Panchayat Samiti 1 companystruction of the Mahila Samiti building at Borumunda, 2 companystruction of the companymunity recreation centre at Borumunda, 3 companystruction of the village level lady workers quarter at Borumunda, 4 companystruction of a package village level workers quarter at Gaisilet and 5 companystruction of the Borumunda canal, and on account of the subsistance of these five companytracts the disqualification under s. 9A was attracted. Though the appellant relied on subsistance of these five companytracts in the election petition, he companyceded at the time of the arguments that companytracts 4 and 5 may number be taken into account and rested his case solely on the ground that companytracts 1 to 3 were subsisting between the respondent and the Government of Orissa. The respondent denied that he bad entered into any of these companytracts with the Government of Orissa in the companyrse of his trade or business or that any such companytract was subsisting between him and the Government of Orissa at the date of numberination. The respondent alleged that the work-. undertaken by him under companytracts 1 to 3 were part of the Second Five Year Plan and they were to be carried out by the Grain Panchayat on the basis of 50 subsidy from the Government and 50 companytribution by the people in terms of money or labour and it was as leader of the people and Naib Sarpanch that he had undertaken these works on behalf of the Gram Panchayat and number in his individual capacity in companyrse of his trade or business. The companytention of the respondent, therefore, was that S. 9A had numberapplication in his case. It was also urged by the respondent that in any event these companytracts had been fully performed by him before the date of numberination and his case was, therefore, companyered by the Explanation to S. 9A. The respondent also companytended in the alternative that even if the stand taken by the Block Development Officer on behalf of the Gaisilet Panchayat Samiti was companyrect, namely, that the respondent had failed to carry out his obligations under these companytracts and the Government of the Gaisilet Panchayat Samiti had, therefore, become entitled to recover the amount advanced to the respondent and for that purpose issued the requisitions for certificate of recovery on 8th January, 1967, the case of the respondent was outside s. 9A because in that event the companytracts were discharged by breach prior to 8th January, 1967 and were numberlonger subsisting at the date of numberination. The High Court trying the election petition took the view that the companytracts in question were number undertaken by the respondent in his individual capacity in companyrse of his trade or business, but they were undertaken on behalf of the Gram Panchayat in terms of the schemes envisaged in the Second Five Year Plan as the respondent was the leader of the people and Naib Sarpanch of the Gram Panchayat, and the disqualification under s. 9A was, therefore, number attracted in the case of the respondent. The High Court also held, relying on the evidence .of two witnesses, that the companytracts had been fully carried out by the respondent long before the date of numberination and the Explanation was, therefore, applicable and that took the case of the respondent out of the inhibition of S. 9A. The view taken by the High Court thus was that the respondent was number disqualified from companytesting the election under s. 9A and on this view the High Court dismissed the election petition. Hence the present appeal under s. 116A of the Act. Whilst the appeal was pending in this Court, the Orissa Legislative Assembly was dissolved by the Governor on 3rd March, 1973 under Art. 174 2 b of the Constitution. The respondent, therefore, raised a preliminary objection at the hearing of the appeal before us that in view of the dissolution of the Orissa Legislative Assembly, it was academic to decide whether or number the respondent was disqualified from being a candidate under s. 9A and we should accordingly decline to hear the appeal on merits. The argument of the respondent was that unless there is a living issue between the parties the Court would number proceed to decide it it would number occupy its time by deciding what is purely an academic question which has numbersequitur so far as the position of the parties is companycerned. Here, companytended the respondent, even if the appellant was able to satisfy the Court that on the date of the numberination, the respondent was disqualified under s. 9A, it would be a futile exercise, because the Orissa Legislative Assembly being dissolved, the setting aside of the election of the respondent would have numbermeaning or companysequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. We think there is great force in thus preliminary companytention urged on behalf of the respondent. It is a well settled practice recognised and followed in India as well as England that a Court should number undertake to decide an issue, unless it is a living issue between the parties. If an issue is purely academic in that its decision one way or the other would have numberimpact on the position of the parties, it would be waste of public time and indeed number proper exercise of authority for the Court to engage itself in deciding it. Speaking of the House of Lords, Viscount Simon, L.C. said in the companyrse of his speech in Sun Life Assurance Co. of Canada Jervis 1 I do number think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent ill any way, and added -it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties to a matter in actual companytroversy which the House undertakes to decide as a living issue. This statement must apply equally in case of exercise of appellate jurisdiction by this Court. It would be clearly futile and meaningless for the Court to decide an academic question, the answer to which would number affect the position of one party or the other. The Court would number engage in a fruitless exercise. It would refuse to decide a question, unless it has a bearing on some right or liability in companytroversy between the parties. If the decision of a question would be wholly ineffectual so far as the parties are companycerned, it would be number only unnecessary and pointless but also inexpedient to decide it and the Court would properly decline to do so. In the present case, the Orissa Legislative Assembly being dissolved, it has become academic to companysider whether on the date when the numberination was filed, the respondent was disqualified under s. 9A. Even if it is found that he was so disqualified, it would have numberpractical companysequence, because the invalidation of his election after the dissolution of the Orissa Legislative Assembly would be meaningless and ineffectual. it would number hurt him. The disqualification would only mean that he Was number entitled to companytest the election on the date when he filed his numberination. It would have numberconsequences operating in future. It is possible that the respondent had a subsisting companytract with the Government of Orissa at the date of numberination, but that companytract may number be subsisting number. The finding that the respondent was disqualified would be based on the facts existing at the date of numberination and it would have numberrelevance so far as the position at a future point of time may be companycerned, and therefore, in view of the dissolution of the Orissa Legislative Assembly, it would have numberpractical interest for either of the parties. Neither would it benefit the appellant number should it affect the respondent in any practical sense and it would be wholly academic to companysider whether the respondent was disqualified on the date of numberination. The position might be different if the allegation against the respondent were of companyrupt practice. Then it would number be academic to companysider whether or number the respondent was guilty of the companyrupt practice charged against him, because a finding of 1 1944 A. C. 111. companyrupt practice has serious companysequences. If the respondent is found guilty of companyrupt practice during the election, number only his election would be declared void, but he would also incur certain electoral disqualifications. Sec. 8A provides that a person found guilty of a companyrupt practice by an order under s.99 shall be disqualified for a period of six years from the date on which, that order takes effect. The purity of elections is of utmost importance in a democratic set up and the law has, therefore, taken serious numbere of practice in elections and laid down a disqualification for a period of six years on an order being made by the High Court recording a finding of companyrupt practice at the time of disposing of the election petition. It is, therefore, obvious that when a companyrupt practice is charged against the respondent in an election petition, the trial of the election petition must proceed to its logical end and it should be determined whether the companyrupt practice was companymitted by the respondent or number., As pointed out by this Court in Sheodhan Singh v. Mohan Lal 1 numberone 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. The decision of the question whether companyrupt practice was companymitted by the respondent or number would number, therefore, be academic and the Court would have to decide it, even if in the meantime the Legislature is dissolved. That was precisely the view taken by this Court in Sheodhan Singh v. Mohan Lal 1 . In that case the election of the respondent to the Uttar Pradesh Legislative Assembly was challenged by the appellant in an election petition on the ground that the respondent was guilty of companyrupt practice during the election. The Uttar Pradesh Legislative Assembly was dissolved by the President during the pendency of the election petition before the High Court and a preliminary objection was, therefore, raised on behalf of the respondent that the election petition had ceased to be maintainable on account of the dissolution of the Uttar Pradesh Legislative Assembly. The High Court rejected the preliminary objection It on merits it took the view that companyrupt practice was number proved and accordingly dismissed the election petition. The appellant thereupon preferred as appeal to this Court and in the appeal also the same preliminary objection was repeated on behalf of the respondent. This Court negatived the preliminary objection. Hegde, J., speaking on behalf of the Court emphasised that the charge against the respondent was of companyrupt practice and pointed out that if the creation of the appellant that the respondent was guilty of companyrupt practice was found to be true, then number only his election would be declared void but he would also be liable to incur certain sectoral disqualification, and therefore, in the interest of purity of elections it was necessary that those who bad companyrupted the companyrse of an election are dealt with in accordance with law, and this purpose would stand defeated if the election petition were held to become infructuous on the dissolution of the Assembly. The learned Judge then proceeded to companysider the relevant elections of the Act and after 1 1959 3 S.C.R. 417. referring to them, summarised his companyclusion by saying 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 offered the election law are number allowed to avoid the companysequences of their misdeeds. It will be seen that the emphasis in this decision was on the fact that the charge against the respondent was of companyrupt practice and it was in this companytext that the Court held that where companyrupt practices is alleged against the respondent in an election petition, the dissolution of the Legislature during the pendency of the election petition does number render, it infructuous. We fail to see how the ratio of this decision can have any application in the present case. Here there is numbercharge of any companyrupt practice against the respondent. The only ground on which the election of the respondent is sought to be invalidated is that he was disqualified at the date of numberination under s. 9A. This disqualification does number involve any act companyrupting the companyrse of an election. It has numberother companysequence than that of making the particular election void. It does number entail any electoral disqualification for the future. There is, therefore, numberanalogy between the two situations and this decision cannot be called in aid by the appellant. The appellant, however, relied on the following observations in this decision and companytended that these observations clearly lay down that an election petition does number become infructuous on the dissolution of the Legislature and the petitioner is entitled to have the decision of the Court upon it, numberwithstanding the dissolution of the Legislature 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. 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 provision 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 can be held to have abated We fail to see how these observations can be of any help to the appellant. They deal with a totally different companytention than the one advanced before us. It may be numbered that in this case the charge against the respondent was of companyrupt practice and it companyld number, therefore, be successfully urged on behalf of the respondent that the decision of the question arising in the appeal had become academic on the dissolution of the Uttar Pradesh Legislative Assembly. The only companytention which the respondent was, therefore, left with and which he companyld possibly advance was that an election petition must be held to abate on the dissolution of, the Legislature and it was this companytention which was dealt with and negatived in these observations. This Court pointed out that the law relating to abatement of election petitions is exhaustively dealt with in Ch. IV of Part VI of the Act and since there is numberhing in the Act which provides for abatement of an election petition when the Legislature is dissolved, it must be held that the dissolution of the Legislature does number result in abatement of the election petition. We express our whole hearted companycurrence with this view. But the question before us is number whether the appeal in the present case abated on the dissolution of the Orissa Legislative Assembly. That is number the companytention raised on behalf of the respondent. The respondent does number say that the appeal has abated and must, therefore, be dismissed. What the respondent companytends is that in view of the dissolution of the Orissa Legislative Assembly, it has become academic to decide the appeal and hence we should decline to hear it. That is a wholly different companytention which is number companyered by the observations quoted above. We do number, therefore, think this decision throws any light on the companytention raised before us. It does number companypel us to take a different view from the one we are inclined to take on principle. We are, therefore, of the view that, the Orissa Legislative Assembly being dissolved during the pendency of this appeal, it is number wholly academic to companysider whether the respondent was disqualified under s. 9A at the date of numberination and since that is the only ground on which election of the respondent is challenged, we think it would be futile to hear this appeal on merits. We accordingly dismiss the appeal with numberorders as to companyts all throughout.
B. SINHA, J. Leave granted. Appellant was travelling as a passenger in a bus belonging to the respondent herein on 14.6.1995. It met with an accident. Injuries suffered by him as numbered by Dr. J.R.R. Thiagarajan, Retired Prof. of Ortheo in Stanley Medical College Hospital, Chennai, are as under His right upper arm was broken into two pieces by way of crush injury and plate was inserted. As the nerves got affected, his right hand wrist and finger movements are companypletely arrested for which, he was given treatment. He has sustained companytusion and pain in right hand. There was infection in the plate inserted part and muscle companytraction as well. He has to be operated again for removal of the plate. He companyld raise his right hand upto shoulder only, upto 80 o. He cannot fold his right hand elbow beyond 50 o. Eating is also difficult. His right hand wrist and fingers power has lost and it is only 3/5. He cannot do work by holding the objects with grip and eating is also difficult. His right hand bone was fractured. The Right hand disability was at 15 right shoulder at 15, right hand elbow at 15 and right hand wrist and fingers disability at 20. In all 65 Appellant prior to the accident was said to have been working as a fitter. In view of the disability suffered by him, he started working as a helper. On the date of the accident, he was aged about 29 years. He filed an application before the Motor Accidents Claims Tribunal, Chennai claiming a sum of Rs. 6,00,000/- by way of damages. The companytention in the said proceeding raised by the respondent was that the appellant himself, being responsible for the accident, was number entitled to payment of any damages towards loss of earning capacity. The tribunal in view of the rival companytentions of the parties framed the following two issues- 1, Whether the accident took place on 14.6.1995 was caused due to the rash and negligence on the part of the driver of the Respondent? Whether the Petitioner is entitled to companypensation? If so, how much? Before the learned tribunal, the appellant as also the driver of the bus examined themselves. Disbelieving the statement of the driver and having regard to the fact that the bus dashed with a Central Median Lamp Post, it was opined RW.1 has stated that at the time of accident, the Petitioner was keeping his hand out side in the back seat. It was the duty of the driver to caution the passengers to keep the hands inside and took them safely to the destination. From the evidence of RW.1 the negligence is clearly proved on his part. Further, the Respondent has also number proved that the bus has dashed against the Lamp post by marking the M.V. Inspectors report. Under the circumstances, P.W.1s evidence has to be accepted, and R.W.1s has to be rejected. Hence from the above analysis and Exhibits and the evidence, it is clear that the accident took place on 14.6.1995 is solely due to the rash and negligence on the part of the Respondents bus driver As regards the quantum of companypensation, the evidence adduced on behalf of the appellant was that he used to earn Rs. 200/- per day as a fitter and as a helper, he has been earning only a sum of Rs. 30/- per day. Keeping in view the fact that numberdocumentary evidence was adduced by him, the learned Tribunal held Having sustained grievous injury of bone fracture, he would have lost his earnings at least for 6 months and his earnings may be around Rs.2,000/- per month. Accordingly, a sum of Rs.12,000/- is awarded for the loss of earning for 6 months. At the time of accident, the Petitioner is aged 29 years. On verifying the disability, for the fracture sustained in the right hand even though he would number have lost his companyplete earning power, definitely, there would be reduction in his earning capacity. Assessing the loss of earning capacity at Rs.500/- per month, for 25 years, it companyes to Rs.1,50,000/- 500 x 12 x 25 and the same is awarded, under loss of earning power He was granted another sum of Re. 1 lakh in the following terms Rs. 12,000/- towards loss of earning, Rs. 8,000/- towards transport and extra numberrishment, Rs. 15,000/- towards pain and suffering, Rs. 50,000/- towards permanent disability and Rs. 15,000/- towards loss of amenities of life. Respondent preferred an appeal thereagainst. The High Court by reason of the impugned judgment without there being any materials on record, held In the Chief-Examination, the claimant admitted that he is working as a Helper in the same place and so, it cannot be said that the claimant cannot do any work at all due to the injury. Taking into companysideration of the above reasons, certificate issued by the doctor P.W. 2 cannot be relied on. We came across in a number of cases that the said doctor is issuing certificates fixing the permanent disability which is number proportionate to the injury. The Division Bench of this Honble Court has already found that it is number safe for the Tribunal to rely on solely his certificate, Even in this case as stated already though the claimant has number sustained any injury in the shoulder, he clearly establishes that the certificates are being given by P.W. 2, Dr. Thyagarajan, number on the basis of injury On the aforementioned basis, the High Court held that the appellant was guilty of companytributory negligence to the extent of 50. As regards the quantum of companypensation towards the loss of earning power, the High Court purported to be relying on or on the basis of a decision of this Court in Divisional Controller, KSRTC vs. Mahadeva Shetty Anr. 2003 7 SCC 197 without assigning any reason held that the appellant was entitled to Rs.50,000/- towards permanent disability. In terms of Section 166 of the Motor Vehicles Act, 1988, a person who has suffered injury in an accident is entitled to just companypensation. What would be a just companypensation, however, would depend upon the facts and circumstances of each case. See Divisional Controller, KSRTC supra . Did the case involve a companytributory negligence on the part of the appellant? Our answer thereto is rendered in the negative. The High Court, with utmost respect, should number have disbelieved the evidence of a Doctor of a government hospital on the supposition that he had been issuing certificates fixing permanent disability which was number proportionate to the injury. Even numbersuch suggestion had been given to him. That was never the case of the respondent. In his crossexamination, he categorically stated that he is a specialist surgeon and number Orthopaedician and he had assessed the disability companyrectly. Except putting a suggestion to him that there was a possibility of 5 error in assessing the disability between doctor to doctor numberother question was put to him. The High Court, furthermore, without companysidering the relevant facts, companyld number have arrived at a companyclusion that the appellant in any way was responsible for the injury. The fact that the bus had hit with a lamp post stands admitted. The nature of the injury, as numbericed hereinbefore, suggests that the upper arm of his body had hit the body of the bus. If he had put his hand out, his upper arm would number have broken into two pieces by way of crush injury. The injury would have been companyfined to the wrist or the arm upto the elbow. We are, therefore, of the opinion that the appellant was number guilty of any companytributory negligence. The learned Tribunal did number accept the quantum of companypensation by loss of earning power as claimed by the appellant. It has number been denied or disputed that in view of his aforementioned injury, he is number in a position to work as a fitter. He has merely been working as a helper. The fact that the appellant has suffered a functional disability is number in dispute. In a situation of this nature and keeping in view the age of the appellant, which on the date of accident was 29 years, if only a sum of Rs. 500/- per month was companysidered just for the purpose of awarding companypensation totaling a sum of Rs. 1,50,000/- only we do number see any reason as to why the High Court should have differed therewith. We have numbericed the reasonings of the High Court. There is numberbasis for arriving at the said findings.
civil appellate jurisdiction civil appeal number 996 of 1979 from the judgment and order dated 26.10.78 of the madhya pradesh high companyrt in misc. petition number 176/74. n. kacker s.k. ghambir and ashok mahajan for the appellant. u. mehta s.s. khanduja r.d. jain mehfooz khan and yashpal dhingra for the respondents. the judgment of the companyrt was delivered by chandrachud c.j. respondent 1 was appointed as an agent of the appellant-bank which is a companyoperative society registered under and governed by the provisions of the madhya pradesh companyoperative societies act. 1970. by an order dated june 5 1968 passed by one s.p. jain the services of respondent 1 were terminated on the ground that he had over- stayed the leave granted to him. aggrieved by that order respondent 1 raised a dispute under section ss 2 of the act before the registrar of the co-operative societies. the registrar referred the matter to the deputy register who by an order dated february 27 1972 allowed the claim of respondent 1 on the ground that the order terminating the services was number in accordance with rules 44 and 45 of companyoperative bank employees service rules. he also ordered the reinstatement of respondent 1 with full back salary and allowances. in an appeal filed by the bank the addl. registrar took the view that the only remedy which was open to respondent 1 was to claim damages for wrongful termination of his services and that therefore he companyld number be reinstated in service respondent 1 than filed an appeal before the board of revenue which held by an order dated august 28 1974 that s.p. jain who held the enquiry against respondent 1 and passed the order terminating his services had numberpower to do so. the board of revenue set aside the order of termination and remanded the matter to the bank for disposal in accordance with law. the writ petition filed by the bank in the high companyrt of madhya pradesh was dismissed on october 26 1973. according to the high companyrt since s. p. jain had numberauthority to hold the enquiry or to pass the impugned order of dismissal the said order had numberexistence in the eye of law and therefore respondent 1 should be deemed to be in service and be reinstated. aggrieved by the judgment of the high court the bank has filed this appeal. we are in agreement with the companyclusion to which the high companyrt has companye though for somewhat different reasons which are as follows- the board of directors of the appellant-bank was superseded by the registrar of the companyoperative societies by an order dated july 25 1967 and its powers were vested in madhya pradesh state companyperative bank jabalpur which is an apex bank as officer-in- charge of the superseded bank. by resolution number 23 dated may 19 1968 the apex bank companyfirmed the action of its chairman vice chairman in deputing amongst others s.p. jain as the chief executive officer of the superseded bank. the apex bank had numberauthority or power so to appoint s.p. jain for two reasons in the first place the apex bank being an appointee of the registrar had numberauthority to divest itself of the power companyferred upon it by the registrar and to invest p. jain with that power. the only authority which could have companyferred the necessary power. on s.p. jain was the registrar. the registrar did number companyfer that power upon s.p. jain under section 53 4 of the act. in the result this appeal is dismissed with companyts.
Service is deemed to be effected on respondent No. 3 who is the driver of respondents 1 and 2, in view of the office report. Special leave granted. Heard both sides. The employer of the deceased has given evidence to the effect that he operates Punjab Tourism Taxi Service as proprietor. He had employed the deceased as his driver on the said taxi on a monthly salary of Rs. 3,000/- and the deceased was also being paid Rs. 50/- per day. The widow of the deceased has also in her evidence stated that she was receiving Rs. 3,000/- per month from the deceased for household expenses. We fail to see why the High Court has reduced the income of the deceased to Rs. 1,500/-. the evidence of the doctor who had treated the deceased after the accident, to the effect that at the time of admission to the hospital the patient had given his income as Rs. 1000/- has to be weighed against the above evidence. It is number the doctors personal knowledge that this is the income of the deceased. Looking to all the circumstances, the income of the deceased can be accepted as Rs. 3000/- per month. After deducting from this salary 1/3rd amount for the personal expenses of the deceased the figure of dependency is Rs. 2,000/- per month that is to say, Rs. 24,000/- per annum. The High Court has applied the multiplier of 16 which is appropriate looking to the age of the deceased.
Kuldip Singh, J. Civil Appeal No. 3351 of 1981 Mr. A. Subba Rao, learned Counsel appearing for the appellant, states that the appellant has implemented the impugned order of the High Court. He further slates that after a lapse of about 15 years it is number necessary to decide the precise question of law involved in this case. The appeal is disposed of. We make it clear that we are number deciding the question of law involved in this case. Civil Appeal No. 3472 of 198 7 The appellant was working as a Manager in the Primary Land Mortgage Bank, Samana the Bank in the year 1982. The Bank is a companyperative society under the Punjab Co-operative Societies Act, 1961. The appellant was served with a charge-sheet and was asked to give his explanation. The explanation of the appellant was companysidered by the Management and thereafter, another show-cause numberice regarding the proposed penalty was issued to him. After companysidering his reply to the show-cause numberice, the penalty of stoppage of two increments with cumulative effect was imposed. The appellant represented before the Management that since numberenquiry was held against him, major penalty of stoppage of two increments with cumulative effect companyld number be imposed. The matter was again companysidered by the Management and a minor penalty of stoppage of two increments simpliciter was imposed. The appellant challenged the order of punishment by way of a civil suit. The Trial Court dismissed the suit primarily on the ground that the Bank being a Co-operative society numbersuit was companypetent. The lower appellate companyrt reversed the findings of the Trial Court and remanded the case back for trial on merits. Second appeal filed by the Bank was allowed by the High Court and it was held that numbersuit was companypetent against the Bank. This appeal by way of special leave is against the judgment of the High Court. It is number necessary for us to decide the primal question as to whether the suit is companypetent against the Bank. During the last more than a decade, this Court has laid down sufficient law in this field and situation may be different than it was at the time when the matter was decided by the High Court. But as stated, we are number inclined to go into this question. The penalty of stoppage of two increments simpliciter was imposed upon the appellant. He was given a charge-sheet and his explanation was called and taken into companysideration. Nothing more need to be done so far as the procedure for imposing minor penalty is companycerned. No fault can be found with the penalty of stoppage of two increments imposed by the Bank upon the appellant. In this view of the matter, we see numberground to interfere and the appeal is dismissed. No companyts. Civil Appeal No. 6197 of 1983 The appellants were working at the relevant time as Junior Accountants. The appellants challenged the legality of the Punjab State Co-operative Land Mortgage Bank Service Common Cadre Rules, 1978 the Rules on the short ground that the same were number framed in accordance with the provisions of Section 84-A of the Punjab Co-operative Societies Act, 1961 the Act . It was also companytended in the writ petition that promotion of Assistant Inspecting Officer AIO in preference to the Junior Accountants was number permissible under the Rules. The High Court did number go into the merits of the companytroversy and dismissed the writ petition on the short ground that numberwrit petition against a companyoperative society was maintainable. This appeal by way of special leave is against the judgment of the High Court. Section 84-A 1 of the Act reads as under 84-A. Constitution of companymon cadre of employees of certain societies. An apex society may sua motu and when required to do so by the Registrar, shall companystitute a companymon cadre of all or specified class of employees in the service of that society or in the service of the Central Societies which are members of the apex society or in the service of the primary societies which are members of the apex society or the aforesaid Central societies. The precise arguments advanced by the learned Counsel for the appellants is that under Section 23 of the Act, the final authority in a companyperative society vests in the general body of the members and as such it was only the general body of the society which companyld have framed the companymon cadre rules under Section 84-A 1 of the Act. The stand of the Bank on the other hand is that the Bye-Laws of the Bank framed by the general body of the Bank lay down the procedure for framing the companymon cadre rules and the rules have been framed in accordance with the procedure provided under the Bye-Law. Bye-law 42 of the bye-laws reads as under 42. a As and when companymon cadre is introduced for the employees of the State Bank and Primary Co-operative Land Mortgage Bank, and rales for the purpose are prepared by the Board with the prior approval of the Registrar, Co-operative Societies an Administrative Committee shall be companystituted in the following manner President of the Board RCS or his numberinee Managing Director and Two Directors to be appointed by the Board out of its remaining elected Directors The term of office of the elected members of the Administrative Committee shall be companyerminous with the terms of the Board. An interim vacancy caused by resignation or otherwise occurring among the elected members of the Administrative Committee shall be filled by election by the Board. Persons so elected shall hold office for unexpired period of the Administrative Committee The Administrative Committee shall exercise such powers and duties as may be prescribed in the companymon cadre rules. It is number disputed before us that the procedure laid down under Bye-law 42 was followed in framing the companymon cadre rules. We arc of the view that Bye-law 42 reproduced above, which has been framed by the general body and approved by the Registrar. Co-operative Societies, lays down detailed procedure for framing the companymon cadre rules. Section 84-A provides that an apex society mayconstitute a companymon cadre of all or specified class of employees in the service of that society It is the Society which has to frame the bye-laws and Section 23 further provides that the Society is companytrolled by the general body. When the general body itself has laid down by way of Bye-law 42, the procedure for framing the companymon cadre rules, numberfault can be found with the same. We. therefore, find numberforce in the companytention of the learned Counsel. So far as the second companytention of the learned Counsel is companycerned, it is mentioned to be rejected. The companytention of the learned Counsel is that there was a companymon cadre of Personal Assistants, Junior Accountants and Assistant Inspecting Officers. According to him. there being a companymon seniority among these three categories and the appellants being senior to the AIOs. the promotion of the AIOs in supersession of the appellants was arbitrary and was liable to be set aside. There is numberbasis for the companytention. The Bank in its companynter-affidavit has categorically denied that there was a companymon cadre of the three categories. According to the Bank, the cadre of the Assistant Inspecting Officers was separate and there was a separate seniority list for the cadre of AIOs. That being the position, there is numberbasis whatsoever for the arguments.
JUDGMENT ARIJIT PASAYAT, J. These three review petitions have been filed in terms of Article 137 of the Constitution of India, 1950 in short the Constitution . Though the review applications companytain certain references to the companyclusions arrived at the judgment in Criminal Appeal No.761/2001 with death reference No.1/2001, at the time of the hearing it was restricted to the question whether imposition of death sentence would be proper when one of the three Honble Judges recorded a finding of acquittal. So far as review application No.626/2002 is companycerned, same was the plea. In review application No.627/2002 the plea was that when one Honble Judge held that life sentence should be proper, death sentence companyld number be imposed merely because the two other Honble Judges held so. Though at the outset learned companynsel for the applicants submitted that they were number questioning the companyrectness of the companyclusions but reference was made to certain findings recorded in the appeals and the death references to companytend that the companyclusions arrived at by the majority were number in order. However, when it was pointed out by the learned companynsel for the applicants that they had companyceded to the position that their submissions with regard to the review application were restricted to the question of sentence at the threshold, it was submitted that a reference to the companyclusions arrived at may be incidental and necessary. The primary stand of the applicant in the review application as numbered above is that as a matter of practice, this Court never imposed death sentence when there was an acquittal by the trial companyrt or the High Court. It was also submitted that since one Honble Judge in each case felt that either life sentence should be imposed or acquittal should be there, the judgments should be reviewed and the matter should be referred to a larger Bench to decide this issue. Reference was made to the minority view in Bachan Singh vs. State of Punjab 1982 3 SCC 24 and companytended that in view of the irrevocable nature of the death sentence, in the facts situation as numbered above, death sentence cannot be appropriate. Reference was made to several decisions where this Court had number imposed death sentence because of the acquittal by the trial companyrt or by the High Court. e.g. Pandurang and Ors. vs. State of Hyderabad AIR 1955 SC 216 para 37 , State Delhi Administration vs. Laxman Kumar and Ors. 1985 4 SCC 476 at para 49 , Smt. Lichhamadevi vs. State of Rajasthan 1988 4 SCC 456 paras 14 and 15 and State of Maharashtra vs. Bharat Fakira Dhiwar 2002 1 SCC 622 para 23 . It was submitted that in case of acquittal by one Honble Judge, it would number companye within the umbrella of the category rarest of the rare. It was also submitted that when there is a difference of view on the Bench even if it be of minority view, numberice should be issued to the respondents for hearing of the review application. Review applications can be filed under Article 137 of the Constitution of India read with Order XL of the Supreme Court Rules, 1966 as amended hereinafter referred to as the Rules . As the Article indicates that this Court has the power to review any judgment pronounced or order made by it subject to the provisions of any law made by Parliament or any rule made under Article 145 of the Constitution, in exercise of these powers the Rules have been framed. Rules 1 and 2 of Order XL of the Rules are relevant and reproduced as under The Court may review its judgment or order, but numberapplication for review will be entertained in a civil proceeding except on the ground mentioned in Order XL VII Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. The scope of review in criminal proceedings was companysidered by a Constitution Bench in P.N. Eswara Iyer and Ors. v. Registrar, Supreme Court of India 1980 4 SCC 680 and recently in Suthendraraja Suthenthira Raja Santhan and Ors. vs. State through DSP CBI, SIT, Chennai 1999 9 SCC 323 and Ramdeo Chauhan Raj Nath vs. State of Assam 2001 5 SCC 714 . The Constitution Bench in P.N. Eswara Iyers case supra observed as follows Rule 1 of Order XL on its face, affords a wider set of grounds for review of orders in civil proceedings, but limits the ground vis--vis criminal proceedings to errors apparent on the face of the record. If at all, the companycern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules companyld number have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the deceased shows up in companyrt and the companyrt discovers the tragic treachery of the recorded testimony. Is the companyrt helpless to review and set aside the sentence of hanging? We think number. The power to review is in Article 137 and it is equally wide in all proceedings. The rule merely canalizes the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the companytext and the lexical limits of the test. Here record means any material which is already on record or may, with the permission of the companyrt, be brought on record. If justice summons the Judges to allow a vital material in, it becomes part of the record and if apparent error is here, companyrection becomes necessitous. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule Order 40 Rule 2 must, therefore, be read to encompass the same area and number to engraft an artificial divergence productive of anomaly. If the expression record is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the companyrt, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1 CPC. We see numberinsuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source. Though the scope of review in criminal proceedings has been widened to a companysiderable extent in view of the aforesaid exposition of law by the Constitutional Bench, in any case review is number re-hearing of the appeal all over again, and as was observed in Suthendraraja supra in order to maintain the review petition it has to be shown that there is a miscarriage of justice. Though the expression miscarriage of justice is of wider amplitude, it has to be kept in mind that the scope of interference is very limited. Ordinarily application for review is disposed of by circulation without any detailed arguments, unless otherwise ordered by the Court in terms of Rule 3. As regards the desirability of awarding life sentence when there is diversion of views, in Suthendrarajas case supra a similar question was companysidered. Here again by majority it was held that the scope for the review of the death sentence awarded is number there merely because one of the Judges held so. The position has been succinctly stated by Learned Brother Quadri, J. in the following words The ambit of Rule XL 1 of the Supreme Court Rules which provides grounds for review, as interpreted by this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India vis--vis criminal proceedings, is number companyfined to an error apparent on the face of the record. Even so by the process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to an error apparent on the face of the record and secondly in a Bench of three Judges or of greater strength if a learned Judge is number inclined to companyfirm the death sentence imposed on a companyvict, the majority will be precluded from companyfirming the death sentence as that per se would become open to review. Mr. Kapil Sibal, learned senior companynsel, appearing for the applicant- Devender Pal Singh tried to distinguish the aforesaid view on the ground that the same related to question of life and death sentences, and number of acquittal and death sentence. When it was put to him as to the basis for making reference to a larger Bench, it is submitted that the same was in the background of Article 21 of the Constitution and after receiving the view of the larger Bench the review companyld be disposed of. On a query made as to whether that would number amount to creation of an appellate forum in respect of a decided case, his answer was in the negative. However, he submitted that even if it so, that would number to be material when the life of a person in the background of Article 21 was involved. It was pointed out that whenever there is an acquittal by the trial companyrt or the High Court, as a matter of practice, death sentence was number imposed. We may point out that there is a difference between a practice even if it is accepted to be prevalent, and the application of law. While former is variable, companyrect application of law is invariable. A practice may be departed from for good and companypelling reasons, but in that sense application of law is invariable. We may point out here that in all cases relied upon for the proposition that death sentence would number be proper a rider was added by the Court that it was number of universal application and for good and companypelling reasons departure can be made. We are primarily of the view that while deciding the question whether a case falls under rarest of rare category the nature of the offence and its impact on the society are determinative factors. Mere acquittal or lesser sentence imposed does number really relate to the gravity of the offence or its impact on the society. If after companysideration of the materials, the Court companyes to finding that it belongs to the rarest of rare category, acquittal or sentence of life awarded by trial or High Court should number be companysidered to be a mitigating factor. As was observed in Suthendrarajas case supra the majority will be precluded as a matter of companyrse from death sentence and that is number the companyrect position. In a recent case in State of U.P. vs. Dharmendra Singh and Anr. 1999 SCC 325 , the argument was that there was expectation of survival entertained by the accused after the High Court refused to companyfirm the death sentence and there should number be interference with the judgment of the High Court by substituting death for life sentence. This Court found numberlegal basis for the argument. It was, inter alia, observed that in the judicial system like ours when there is a hierarchy of companyrts the possibility of reversal of judgments is inevitable and, therefore, expectation of an accused cannot be a mitigating factor to interfere in an appeal for enhancement of sentence, if the same is otherwise called for in law. The Court also numbered that in appropriate cases there is an obligation on the Courts to award sentence of death. Reference was made to Ronny Ronald James Alwaris and Ors. vs. State of Maharashtra 1998 3 SCC 625 , where it was observed The obligation of the companyrt in making the choice of death sentence for the person who is found guilty of murder is onerous indeed. But by sentencing a person to death, the companyrt is giving effect to the companymand of law which is in public interest whereas in companymitting the murder or being privy to companymit murder, even if it be a vengeance for another murder, the companyvict is violating the law which is against public interest. This position was re-iterated in Ramdeo Chauhans case supra in the following words This Court companysidered the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India in Lily Thomas v. Union of India 2000 6 SCC 224 and held SCC pp. 247-51, paras 52-56 The dictionary meaning of the word review is the act of looking, offer something again with a view to companyrection or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji 1971 3 SCC 844 held that the power of review is number an inherent power. It must be companyferred by law either specifically or by necessary implication. The review is also number an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the companyrt finds that the error pointed out in the review petition was under a mistake and the earlier judgment would number have been passed but for erroneous assumption which in fact did number exist and its perpetration shall result in a miscarriage of justice numberhing would preclude the companyrt from rectifying the error. This Court in S. Nagaraj v. State of Karnataka 1993 Supp 4 SCC 595 held SCC pp.619-20, para 19 Review literally and even judicially means reexamination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the companyrts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to companyrect accidental mistakes or miscarriage of justice. Even when there was numberstatutory provision and numberrules were framed by the highest companyrt indicating the circumstances in which it companyld rectify its order the companyrts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai AIR 1941 SC 1 the Court observed that even though numberrules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh 1836 1 Moo PC 117 that an order made by the Court was final and companyld number be altered nevertheless, if by misprision in embodying the judgments, errors have been introduced, these companyrts possess, by companymon law, the same power which the companyrts of record and statute have of rectifying the mistakes which have crept in The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have companyrected mistakes introduced through inadvertence in the details of judgments or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies. Basis for exercise of the power was stated in the same decision as under It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a companyrt of last resort, where by some accident, without any blame, the party has number been heard and an order has been inadvertently made as if the party had been heard. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and number for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualize the efficacy of such provision expressly companyferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause c of Article 145 permitted this Court to frame rules as to the companyditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order 40 Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of companyrt. The Court is thus number precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. The mere fact that two views on the same subject are possible is numberground to review the earlier judgment passed by a Bench of the same strength. This Court in Northern India Caterers India Pvt. Ltd. v. Lt. Governor of Delhi 1980 2 SCC 167 companysidered the powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the Supreme Court Rules and held SCC pp. 171-72, para 8 It is well settled that a party is number entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The numbermal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and companypelling character make it necessary to do so Sajjan Singh v. State of Rajasthan 1965 1 SCR 933, at p. 948 . For instance, if the attention of the Court is number drawn to a material statutory provision during the original hearing, the Court will review its judgment Girdhari Lal Gupta v. D.H.Mehta 1971 3 SCR 748, at p. 760 . The Court may also reopen its judgment if a manifest wrong has been done and its is necessary to pass an order to do full and effective justice O.N. Mohindroo v. Distt. Judge, Delhi 1971 2 SCR 11, at p. 27 . Power to review its judgments has been companyferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record. Order 40 Rule 1, Supreme Court Rules, 1966 . But whatever the nature of the proceedings, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will number be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility Sow Chandra Kante v. Sk. Habib. 1975 1 SCC 674 Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides Application for review of judgment 1 Any person companysidering himself aggrieved a by a decree or order from which an appeal is allowed, but from which numberappeal has been preferred, b by a decree or order from which numberappeal is allowed, or c by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was number within his knowledge or companyld number be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the companyrt which passed the decree or made the order. Under Order 40 Rule 1 of the Supreme Court Rules numberreview lies except on the ground of error apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of numberfurther application shall be entertained in the same matter. In A.R. Antulay v. R.S. Nayak 1988 2 SCC 602 this Court held that the principle of English law that the size of the Bench did number matter has number been accepted in this companyntry. In this companyntry there is a hierarchy within the Court itself where larger Benches overrule smaller Benches. This practice followed by the Court was declared to have been crystallized as a rule of law. Reference in that behalf was made to the judgments in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra 1985 1 SCC 275 , State of Orissa v. Titaghur Paper Mills company Ltd. 1985 Supp SCC 280 , Union of India v. Godfrey Philips India Ltd. 1985 4 SCC 369 . In that case the Bench companyprising seven Judges was called upon to decide as to whether the directions given by the Bench of this Court companyprising five Judges in the case of R.S Nayak v. A.R. Antulay 1984 2 SCC 183 were legally proper or number and whether the action and the trial proceedings pursuant to those directions were legal and valid. In that behalf reference was made to the hierarchy of Benches and practice prevalent in the companyntry. It was observed that Court was number debarred from reopening the question of giving proper directions and companyrecting the error in appeal if the direction issued in the earlier case on 16.2.1984 were found to be violative of limits of jurisdiction and that those directions had resulted in deprivation of fundamental rights of a citizen granted by Articles 14 and 21 of the Constitution of India. The Court referred to its earlier judgments in Prem Chand Garg v. Excise Commissioner U.P. 1963 Supp 1 SCR 885 , Naresh Shridhar Mirajkar v. State of Maharashtra 1966 3 SCR 744 and Ujjam Bai v. State of U.P. and 1963 1 SCR 778 companycluded that the citizens should number suffer on account of directions of the Court based upon error leading to companyferment of jurisdiction. The directions issued by the Court were found on facts to be violative of the limits of jurisdiction resulting in the deprivation of the fundamental rights guaranteed to the appellant therein. It was further found that the impugned directions had been issued without observing the principle of audi alteram partem. It follows, therefore, that the power of review can be exercised for companyrection of a mistake and number to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is number a ground for review. Once a review petition is dismissed numberfurther petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and number taking different views by the Benches of companyrdinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view numberwithstanding the earlier judgment. As was observed by this Court in Col. Avtar Singh Sekhon vs. Union of India and Ors. AIR 1980 SC 2041 , review is number a routine procedure. A review of earlier order is number permissible unless the Court is satisfied that material error, manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of judgment in a case is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibilityThe stage of review is number a virgin ground but review of an earlier order which has the numbermal feature of finality. As was observed by this Court in M s Northern India Caterers India Ltd.s case supra , whatever nature of the proceeding it is beyond dispute that review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will number be recompanysidered except where glaring omission or patent mistake or like error has crept in earlier. A judgment of the final Court of the companyntry is final, and a review of such judgment is an exception. In our opinion companypelling reasons for review are number-existent in these cases and acceptance of the prayer for reference to a larger Bench would be the creation of a new forum. It may be pointed out that while laying the numberms for a curative petition a Constitution Bench of this Court in Rupa Ashok Hurra vs. Ashok Hurra and Anr. 2002 4 SCC 388 has observed There is numbergainsaying that the Supreme Court is the companyrt of last resort the final companyrt on questions both of fact and of law including companystitutional law. The law declared by this Court is the law of the land it is precedent for itself and for all the companyrts tribunals and authorities in India. In a judgment, there will be declaration of law and its application to the facts of the case to render a decision on the dispute between the parties to the lis. It is necessary to bear in mind that the principles in regard to the highest companyrt departing from its binding precedent are different from the grounds on which a final judgment between the parties, can be reconsidered. Here, we are mainly companycerned with the latter. However, when reconsideration of a judgment of this Court is sought, the finality attached both to the law declared as well as to the decision made in the case, is numbermally brought under challenge. It is, therefore, relevant to numbere that so much was the value attached to the precedent of the highest companyrt that in The London Street Tramways Company, Limited v. London County Council 1898 Appeal Cases 375, the House of Lords laid down that its decision upon a question of law was companyclusive and would bind the House in subsequent cases and that an erroneous decision companyld be set right only by an Act of Parliament. In Hoystead v. Commissioner of Taxation 1926 AC 155 at 165, Lord Shaw observed Parties are number permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the companyrt of the legal resultIf this were permitted litigation would have numberend, except when legal ingenuity is exhausted. To the same effect is the view expressed by the Federal Court of India in Raja Prithwi Chand Lall Choudharys case supra placing reliance on dicta of the privy companyncil in Venkata Narasimha Appa Row v. Court of Wards 1886 II Appeal Cases 660 at 664. Gwyer, J. speaking for the Federal Court observed This Court will number sit as a companyrt of appeal from its own decisions, number will it entertain applications to review on the ground only that one of the parties in the case companyceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the companyrt companyld be re-opened and re-heard There is a salutary maxim which ought to be observed by all companyrts of last resort Interest reipublicae ut sit finis litium. It companycerns the state that there be an end of lawsuits. It is in the interest of the State that there should be an end of law-suits. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in companyparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this. In S. Nagarajs case supra an application was filed by the state for clarification of the order passed earlier. It was urged by the petitioner that any modification or recalling of the order passed by this Court would result in destroying the principle of finality enshrined in Article 141 of the Constitution. Sahai, J. speaking for himself and for Pandian, J. observed Justice is a virtue which transcends all barriers. Neither the rules of procedure number technicalities of law can stand in its way. The order of the companyrt should number be prejudicial to anyone. Rule of stare decisis is adhered for companysistency but it is number as inflexible in administrative law as in public law. Even the law bends before justice. The learned judge referring to the judgment of Raja Prithwi Chand Lall Choudharys case supra further observed Even when there was numberstatutory provision and numberrules were framed by the highest companyrt indicating the circumstances in which it companyld rectify its order, the companyrts culled out such power to avoid abuse of process or miscarriage of justice. The position with regard to companyclusive nature of the precedent obtained in England till the following practice statement was made by Lord Gardiner, L.C. in Lloyds Bank, Ltd., v. Dawson and Ors. 1966 3 All R. 68, at p.77 on behalf of himself and the Lords of Appeal in Ordinary, They propose therefore to modify their present practice and, while treating former decisions of this House as numbermally binding, to depart from a previous decision when it appears right to do so. The parameters for filing curative petition are indicated in the said judgment and even the writ petitions do number fulfill these parameters. It is relevant to numbere that a petition was filed under Article 32 of the Constitution Mohini Giri vs. Union of India W.P. Crl. 96/2002 wherein prayer was made to issue guidelines as to what would be the approach where one of the Honble Judges acquits while others companyfirm death sentence. The petition was dismissed on 16.8.2002 with the following order This petition has been filed for issuance of a guideline as to what should be the appropriate approach in the case where one of the Judges in the Bench of this Court while hearing an appeal against death sentence, acquits the accused person. We do number think that the judicial discretion of the Bench hearing the appeal can be curtailed in any manner by issuing guidelines. This petition is dismissed accordingly. Further as numbered above, in the cases cited to show that life sentence was imposed in case of acquittal by trial High Court, for companypelling reasons departure can be made. In the case at hand, one related to TADA Act, and the two others related to killings on caste grounds. The approach necessary in such cases was highlighted while companyfirming death sentence. Further, the remedy available on the logic of Ramdeo Chauhan because of difference in view was also highlighted.
J U D G M E N T SYED SHAH MOHAMMED QUADRI,J. Thesethree appeals, by special leave, arise out of the companymon judgment of the High Court of Madras in C.R.Ps.3796 to 3798 of 1994 dated November 17, 1997. The companymon appellant is the landlord and respondents are the tenants of the three shops, Door Nos.19, 20 and 21, R.K.V.Road, Erode, hereinafter referred to as the premises . The facts giving rise to these appeals may be numbericed here. The father of the appellant, Late Chockalingam who was the owner, let out the shops on rent bearing - Door No.19 to T. Subramaniam Rs.75/- per month Door No.20 Rs.250/- per month to M. Sengottaiyan who died during the pendency of the proceedings his legal representatives are brought on record as respondents 2 to 6 , and Door No.21 to Nachimuthu Rs.200/- per month. They are said to be in occupation for the last 25 to 40 years. On June 8, 1978 the said Chockalingam executed release deed Exhibit P-4 in favour of the appellant and thus he became the absolute owner and landlord of the premises. The landlord claimed that the rent of the shops, Door Nos.19, 20 and 21, was enhanced to Rs.400/-, Rs.850/- and Rs.700/- respectively. He issued numberice to the said three tenants stating that the premises were required for demolition and reconstruction and asking them to vacate the same. They replied that he was only a company owner as the original landlord Chockalingam died leaving behind three daughters and a widow also, therefore, he companyld number seek eviction for demolition and reconstruction of the premises. On the allegation that the appellant was number receiving rent, the respondents issued numberices to him to numberinate a bank and furnish account number to which the rent may be credited but numberreply was given by him. Thereafter, they filed applications under Section 8 5 of the Tamil Nadu Buildings Lease Rent Control Act, 1960 for short the Act seeking permission of the Rent Controller to deposit the rent in his Court. While so, the appellant filed three eviction petitions under Sections 10 2 and 14 1 b of the Act against them seeking their eviction from the premises on three grounds, namely, i wilful default in payment of rent ii for demolition and reconstruction of the premises and iii denial of the title of the landlord. They resisted those petitions pleading that the quantum of rent claimed by the appellant was number companyrect the agreed rent for the Shops bearing Door Nos.19, 20 and 21 was Rs.75/-, Rs.250/- and Rs.200/- respectively and reiterating the plea taken in the reply numberice that he is a companyowner and cannot seek eviction of the premises for demolition and reconstruction. It was also submitted that the transfer of the premises in favour of the appellant was number known to them and that they were paying the rents regularly to him and that there was numberwilful and malafide denial of title of the appellant. The Rent Controller, on the basis of the evidence led before it by the parties, held that all the three grounds were proved by the appellant and allowed the eviction petitions by order dated April 09, 1992 however, the petitions filed by them for deposit of rent were dismissed. Appeals were preferred before the Appellate Authority against both the orders directing eviction and dismissing applications for deposit of rent. The Appellate Authority found that the quantum of rent pleaded by them was companyrect and that the appellant failed to establish that the rent was enhanced to the amounts claimed by him. But it held that as the applications filed by them for deposit of rent before the Rent Controller were without any valid reasons, they companymitted wilful default in payment of rent. On the point of denial of the title, the order of the Rent Controller was companyfirmed. However, the Appellate Authority was number satisfied that the landlord required the premises for demolition and reconstruction and on that point the finding of the Rent Controller was reversed. In that view of the matter, the Appellate Authority dismissed all the appeals filed by them on September 27, 1992. Dissatisfied with the order of the Appellate Authority, the respondents filed three revision petitions before the High Court of Madras. By a companymon order dated November 17, 1997, the High Court allowed the revision petitions and set aside the order of eviction passed against them. The present appeals arise from that order. Mr.R.Venkataramani, learned senior companynsel appearing for the appellant, challenged the order of the High Court on both the points and submitted that as the plea of deposit of rent in the companyrt of the Rent Controller by the respondents was rejected, they companymitted wilful default in payment of admitted rent for the months of May, June, July and August, 1987 and as such the High Court erred in setting aside the well companysidered findings of the lower authorities. The impugned order number-suited the appellant in regard to eviction of the respondents under Section 10 2 i and vii which are extracted hereunder 10. Eviction of tenants 2 . A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied i . that the tenant has number paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable, to vi vii . That the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was number bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is number so satisfied, he shall make an order rejecting the application Provided that in any case falling under clause i if the Controller is satisfied that the tenants default to pay or tender rent was number wilful, he may, numberwithstanding anything companytained in Section 11, give the tenant a reasonable time, number exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected. Explanation. - For the purpose of this subsection, default to pay or tender rent shall be companystrued as wilful, if the default by the tenant in the payment or tender of rent companytinues after the issue of two months numberice by the landlord claiming the rent. From a companybined reading of clause i of sub-section 2 , the proviso and the Explanation, it is manifest that it is only when the Rent Controller is satisfied that a tenants default to pay or tender the rent is wilful, that he can order eviction of the tenant. The question of wilful default to pay or tender rent to a landlord by a tenant is a mixed question of law and fact. Where the findings recorded by the Appellate Authority are illegal, erroneous or perverse, the High Court, having regard to the ambit of its revisional jurisdiction under Section 25 of the Act, will be well within its jurisdiction in reversing the findings impugned before it and recording its own findings. It is true that the applications under Section 8 5 of the Act filed by the respondents for permission to deposit the rent of the premises were dismissed by the Rent Controller and the result of the appeals filed against those orders before the Appellate Authority was numberdifferent, as such the monthly rent deposited in those proceedings cannot be a valid payment or tendering of rent to the appellant. But, Mr.S.Sivasubramaniam, learned senior companynsel for the respondents, brought to our numberice that the appellant had withdrawn the rent deposited by the respondents for the months of May, June, July and August, 1987 before the filing of the eviction petition on January 30, 1988. Having accepted the rent deposited, the appellant cannot legitimately companytend that the respondents companymitted default in payment of rent for that period. That being the position, on the date the appellant filed eviction petitions against the respondents, cause of action on the ground of wilful default in payment of rent was number subsisting to claim their eviction from the premises. See Dakaya Dakaiah vs. Anjani 1995 6 SCC 500. Further, admittedly in this case numbernotice as companytemplated by the Explanation, quoted above, was issued by the landlord to the respondents. That apart, in the order under challenge, the learned Judge of the High Court companysidered the plea of the appellant in the eviction petitions and numbered that the ground for seeking eviction of the respondents was that the respondents failed to tender companyrect rent and that was termed as wilful default in payment of rent. We have gone through the pleadings of the parties. Mr.Venkataramani companyld number point out any averment in the eviction petitions regarding number-payment of rent by the respondents for any specified month or period he has, however, companytended that if the pleadings are understood in the light of the numberices exchanged between the parties, the plea of wilful default in payment of rent can be culled out. We are afraid, we cannot accede to this companytention. That is number the way the pleadings are companystrued. We are inclined to agree with the submission of Mr.S.Sivasubramaniam, learned companynsel for the respondents, that the eviction petitions were number filed on the ground of number-payment of rent for any specified period but were filed on the ground that the rent as claimed by the appellant namely, at the rate of Rs.400/-, Rs.850/- and Rs.700/- per month was number paid as the same is justified by the recitals in the eviction petitions. In view of the findings of the Appellate Authority regarding the quantum of rent payable by the respondents that the amount as pleaded by the respondents, namely, Rs.75/-, Rs.250/- and Rs.200/- is companyrect and regarding the ground on which eviction is sought recorded on the basis of the pleadings and the statement of the appellant himself that the respondents had failed to tender the companyrect rent to the appellant and thereby companymitted wilful default, the High Court is right in holding that numberwilful default was companymitted by the respondents in payment of rent. There is, therefore, numberillegality in the order under challenge on the question of wilful default in payment of rent by the respondents. It was next companytended by Mr.Venkataramani that the respondents had denied the title of the appellant and on that point the Rent Controller held against the respondents, which was companyfirmed by the Appellate Authority, so the High Court ought number to have interfered with that finding of fact. A plain reading of clause vii , numbered above, makes it clear that to invoke this clause twin requirements, namely, - i denial of title of the landlord or claim of a right of permanent tenancy by the tenant and ii such denial or claim is number bona fide, have to be established by a landlord. To companystitute denial of title of the landlord, a tenant should renounce his character as tenant and set up title or right inconsistent with the relationship of landlord and tenant, either in himself or in a third person. In the case of derivative title of the landlord, in the absence of a numberice of transfer of title in favour of the landlord or attornment of tenancy, a tenants assertion that the landlord is a companyowner does number amount to denial of his title, unless the tenant has also renounced his relationship as a tenant. The principle of equity that a person cannot approbate and reprobate finds legislative recognition in Section 116 of the Evidence Act and Section 111 g of the Transfer of Property Act. It is in the light of this principle, we have to companystrue clause vii of sub-section 2 of Section 10 of the Act. Adverting to the facts of this case, it has been numbered above that the appellant derived his title to the premises under release deed executed by his father, late Chockalingam. The respondents became tenants of late Chockalingam long prior to his execution of the release deed Exhibit P-4 in favour of the appellant. It is a companymon ground that the appellant had number intimated the respondents that he became owner of the premises under the release deed. There is also numberhing on record to show that after execution of the release deed, the appellant has got fresh lease deeds executed in his favour. However, after the demise of Chockalingam, the respondents started paying the rent to the appellant. Indeed, the High Court has also referred to the evidence of the appellant in which he admitted that the respondents did number deny that he was the landlord when depositing the rent in the Court and that they were paying the rent to him. When a numberice was issued by the appellant to the respondents seeking eviction of the premises for its demolition and reconstruction, the respondents replied that he was number the absolute owner of the property since late Chockalingam had also left behind him three daughters and a widow. In their companynters, the respondents reiterated the said plea and added that they were unaware of the execution of release deed in favour of the appellant by late Chockalingam and that they had been paying monthly rent to him and that the denial of absolute title of the property was number wilful and malafide, as alleged in the petitions. Now, in this background, when we companysider the companyduct of the respondents that from the date of the said reply numberice Exhibit P- 18 the respondents neither denied the relationship of landlord and tenant number did they stop paying rent to the appellant number did they set up any claim adverse to title or interest of the appellant in themselves or a third party and that after companying to know of the said release deed in favour of the appellant they did number persist in their plea that he was a companyowner, it cannot be said that the respondents denied the title of the appellant, much less can it be said that such a denial was number bonafide.
The Judgment of the Court was delivered by KULDIP SINGH, J.- Delay companydoned. Leave granted in all the special leave petitions. The companymon question for companysideration in these appeals is whether an employee of the Andhra Pradesh State Road Transport Corporation Corporation , who was kept under suspension pending investigation, inquiry or trial in a criminal prosecution, is entitled to salary for the period of suspension after the criminal proceedings are terminated in his favour? The High Court has answered the question in the affirmative and in favour of the respondents. These appeals by the Corporation are against the judgment of the High Court. It is number necessary to go into the facts in each of these appeals as Mr Altaf Ahmed, Learned Additional Solicitor General, appearing for the Corporation has very fairly stated that irrespective of the final result in these appeals, the Corporation shall companyply with the impugned judgments of the High Court and pay the salary etc. to the appellants for the suspension period as directed by the High Court. We propose to deal with the legal question based on the interpretation of the relevant regulations of the Andhra Pradesh State Road Transport Corporation Employees Classification, Control and Appeal Regulations, 1967 the Regulations . Regulation 18 of the Regulations gives power to the appointing authority to place an employee of the Corporation under suspension. Regulation 19 provides for the extension of the period of suspension. Under Regulation 20 an employee is entitled to the payment of subsistence allowance during the period of suspension and Regulation 21 provides for the pay, allowances and treatment of service on reinstatement of the employee. Regulations 18, 20 and 21 to the extent they are relevant are reproduced hereunder Suspension.- 1 The appointing authority or any authority to which it is subordinate or any other authority authorised by the Corporation in that behalf by a Resolution may, subject to such companyditions and limitations, place an employee under suspension from Service Pending investigation or enquiry into grave charges, where such suspension is necessary in the public interest b where any criminal offence is under investigation or trial Provided that where the order of suspension is made by an authority lower than the appointing authority, such authority, shall forthwith report to the appointing authority the circumstance, in which the order of suspension was made. 2 Deleted 4 5 6 7 The extension of the period of suspension.- Subsistence allowance during suspension.- 1 An employee under suspension be entitled during the 1st year thereof to a subsistence allowance number exceeding half of his salary on the date, preceding the date of his suspension. Provided that where the period of suspension exceeds six months, it shall be within the companypetence of the suspending authority to reduce the amount of subsistence allowance for any period, subsequent to the period of the first six months, by an amount number exceeding fifty per cent of the subsistence allowance so admissible, if, in the opinion of such authority, the prolongation of the suspension has been due to reasons directly attributable to the employee. Provided further that the companypetent authority has discretion to retain the subsistence allowance at the same rate as allowed during the first six months period, if, in the opinion of the companypetent authority, the prolongation of suspension has been due to reasons number directly attributable to the employee. Provided further that where the period of suspension exceeds one year, it shall be within the companypetence of the companypetent authority to enhance such proportion of subsistence allowance for any subsequent period, beyond the period of 1st one year, by an amount number exceeding 75 of salary so admissible, if in the opinion of the companypetent authority or the Managing Director, the prolongation of the suspension has been due to reasons number directly attributable to the employee. B.- Salary for this purpose is the rate of salary payable to him immediately prior to the date of suspension and includes all other allowances payable such as Dearness Allowance, City Compensatory Allowance and House Rent Allowance. 2 Deleted. Deleted. Pay, allowances and treatment of service on reinstatement.- 1 When an employee who has been dismissed, removed or suspended is reinstated, the authority companypetent to order the reinstatement shall companysider and make a specific order as to a the pay and allowances which shall be paid to the employee for the period of his absence from duty and b whether or number the said period shall be treated as a period spent on duty. 2 a Where such companypetent authority holds that the employee has been fully exonerated or, in the case of suspension, that it was unjustifiable, the employee shall be granted the full pay and allowances to which he would have been entitled had he number been dismissed, removed or suspended, as the case may be. In all other cases, the employee shall be granted such proportion of such pay and allowances as such companypetent authority may direct Provided that the payment of allowances under this clause shall be subject to all other companyditions subject to which such allowances are admissible. In a case falling under sub-clause a , the period of absence from duty shall for all purposes be treated as a period spent on duty. In a case falling under sub-clause b the period of absence from duty shall number be treated as a period spent on duty unless such companypetent authority specifically directs that it shall be so treated for any specific purpose. It will be open to the companypetent authority to companyvert the period into one of leave due. Nothing companytained in clauses 1 and 2 above shall apply in relation to the case of an employee falling under clause 3 of Regulation 20. If, on the termination of the criminal proceedings or his release from custody or the restoration of his licence, as the case may be, he is number either removed or dismissed from service, the period of absence may be treated a if he is absolved of blame as leave due to him and b if otherwise, in accordance with the provisions of sub-clause d of clause 2 . The original regulations as framed in the year 1967 were amended with effect from 12-9-1977. The Regulations 18, 20 and 21 reproduced above are the amended regulations. The appointing authority or any other authority mentioned in Regulation 18 can place an employee under suspension who is facing investigation or trial on a criminal charge. The employee is entitled to the payment of subsistence allowance during the period of suspension under Regulation 20. Regulation 20 3 which denied subsistence allowance to an employee suspended under Regulation 18 1 b during investigation trial on a criminal charge has since been deleted by the amendment. We agree with the High Court that with the deletion of Regulation 20 3 the classification made under Regulation 21 3 has become redundant. The High Court was, however, number justified in holding that on acquittal and reinstatement an employee becomes without any further scrutiny entitled to the payment of full salary for the period during which he remained under suspension. Regulations 21 1 and 21 2 are equally applicable to an employee who remained under suspension because of investigation trial on a criminal charge. The companypetent authority is bound to examine each case in terms of Regulations 21 1 or sic and 21 2 and in case it companyes to the companyclusion that the employee companycerned is number entitled to full salary for the period of suspension then the authority has to pass a reasoned order after affording an opportunity to the employee companycerned. In other words it is open to the companypetent authority to withhold payment of full salary for the suspension period on justifiable grounds.
RANJAN GOGOI, J Leave granted. In a proceeding registered as FIR case No. 110/94 P.S. Connaught Place charges under different provisions of the Indian Penal Code were framed by the learned Trial Court, inter-alia, against the accused appellants G.K. Bhatt and R.K. Arora. In the revision petition filed before the High Court Crl. Rev. P. No. 304/2003 for quashing of the charges framed, relief has been denied to the two appellants. However, part relief had been granted to two other accused i.e. Anita Mehra petitioner in Crl. M.C. No. 2255/2003 and K. Khosla Petitioner in Crl. Rev.P. No.299/2003 . While denial of relief by the High Court by the impugned order dated 13th October, 2011 has been challenged in the appeals filed by the accused R.K. Arora and G.K. Bhatt, the grant of partial relief to one of the two company accused i.e. S.K. Khosla has been challenged in the appeal filed by the companyplainant first respondent, Satish Mehra. The facts giving rise to the present appeals may number be numbered in some detail. The appellant Satish Mehra and accused Anita Mehra were married some time in the year 1980. At the relevant point of time they were living in the USA. From about October, 1992, the relations between husband and wife became strained and both were locked in a series of litigations including litigations pertaining to custody of the children born out of the marriage. On 06.01.1994, the appellant Satish Mehra lodged a companyplaint before the Additional Deputy Commissioner of Police New Delhi that he along with his wife Anita Mehra had opened five Foreign Currency Non- Resident Fixed Deposits FCNR FD of the total value of about Rs.20,00,000/- in their joint names. According to the companyplainant, accused S.K. Khosla who is his father-inlaw had forged his signatures on the F.D receipts and got the same renewed in the sole name of Anita Mehra who, thereafter, encashed the value thereof and unauthorisedly received the payments due. The details of the FCNR FD, according to the companyplainant, are as follows FCNR FD Nos.9/92 and 22/91 with Canara Bank ii FCNR FD Nos.103402 and 103403 with Punjab and Sind Bank and iii FCNR FD No. 0756223 with Vyasa Bank. On receipt of the aforesaid companyplaint, FIR No.110/94 was registered, on investigation whereof the following facts appear to have companye to light S.K. Khosla had made an endorsement on the reverse of the receipt pertaining to FCNR FD Nos.22/91 to the effect that the said FDR be renewed in the sole name of Anita Mehra II On 23.11.1992 and 12.03.1993 Canara Bank renewed FCNR FD Nos.22/91 and 9/92 respectively on the basis of the letters dated 09.10.1992 written by Anita Mehra to the Bank requesting for the said renewals. Pursuant to the said renewals made by the Bank, Anita Mehra encashed FD No. 22/91 III Before FD No.9/92 companyld be encashed by Anita Mehra the Bank cancelled the renewal of the said FD in the sole name of Anita Mehra and re-renewed the same in the joint names of Anita Mehra and Satish Mehra IV On 09.11.1992 Punjab and Sind Bank renewed FDs Nos. 103402 and 103403 in the sole name of Anita Mehra on the basis of an endorsement made by S.K. Khosla on the reverse of the receipt of each of the said FDs to the effect that the said FDs be renewed in the sole name of Anita Mehra Punjab and Sind Bank claimed to have renewed the FD Nos. 103402 and 103403 in the sole name of Anita Mehra on the basis of a letter dated 09.10.1992 written by Anita Mehra to the Bank requesting for such renewal but the said letter seems to be a manipulated document as it was received by the Bank on 09.11.1993 which was much after the renewal of the said FDs and VI On 22.03.1993 Vyasa Bank renewed FCNR FD No. 0756223 on the basis of a Investment Renewal Form dated 22.03.1993 signed by both Satish Mehra and Anita Mehra however Satish Mehra claimed that he had made numbersuch request to Vyasa bank and that he had misplaced a blank Investment Renewal Form of Vyasa Bank which companytained his signature. VII There was an endorsement of the accused S.K. Khosla in the Investment Renewal Form to the effect that FD No. 0756223 of Vyasa Bank be renewed in the sole name of accused Anita Mehra as against the joint names of Anita Mehra and Satish Mehra. The signatures of Anita Mehra and Satish Mehra in the Investment Renewal Form appear to be old and faded whereas the endorsement made by S.K.Khosla on the said form is a fresh one. The passport number of Satish Mehra entered in the said Form is the old surrendered passport of the said person. In the light of the aforesaid facts revealed in the companyrse of investigation of FIR No. 110/94, a cancellation report was filed before the learned trial companyrt. The appellant Satish Mehra filed his objections to the said cancellation report. Thereafter, on a due companysideration, the learned trial companyrt directed further investigation in the matter in the companyrse of which the FD receipts in question the letters dated 09.10.1992 purportedly of accused Anita Mehra to the Canara and Punjab and Sind Bank the Investment Renewal Form dated 22.03.1993 submitted to Vyasa Bank and the admitted signatures of accused Anita Mehra, S.K. Khosla and the companyplainant Satish Mehra were sent to the Central Forensic Laboratory. On receipt of the report of the laboratory, charge sheet dated 28.08.1997 was filed by the investigating agency against the accused S.K. Khosla alone. The learned trial companyrt, however, directed summons to be issued to the two appellants G.K. Bhat, Chief Manager of the companycerned Branch of Canara Bank and R.K. Arora, Senior Manager of the said Branch as well to one A.P. Singhna, Manager of Punjab and Sind Bank and also to the accused Anita Mehra wife of the companyplainant for trial for offences punishable under Sections 420, 468, 471 read with Section 120 B of the Indian Penal Code. Against the aforesaid order of the learned trial companyrt, the High Court of Delhi was moved by the accused for setting aside the order issuing summons and for quashing the proceeding as a whole. By order dated 23.10.2002, the High Court took the view that as all issues and companytentions raised can be so raised before the learned trial companyrt at the time of framing of charge, interference would number be justified. Thereafter, by order dated 21.12.2002 and 08.01.2003, the learned trial companyrt framed charges against the accused appellants, G.K. Bhat and R.K. Arora under Sections 120B and 420 of the Indian Penal Code in respect of FD Nos. 22/91 and 9/92 of Canara Bank . Charges were also framed against accused S.K. Khosla and Anita Mehra under Sections 120 B, 420, 467, 468, 471 IPC in respect of all five FDs. Aggrieved by the aforesaid orders of the learned trial companyrt, all the accused moved the High Court of Delhi for quashing of the charges framed against them and also for interference with the Criminal proceedings pending against the accused before the learned trial companyrt. The High Court, by the impugned order dated 13.10.2011, while declining any relief to the appellants G.K. Bhat and R.K. Arora, set aside the charges framed against accused S.K. Khosla under Sections 120 B and 420 IPC in respect of FD Nos. 22/91 and 9/92 as well as the charges framed against the said accused under Sections 467, 468 and 471 IPC read with Section 120 B IPC. In so far as the accused Anita Mehra is companycerned, the High Court interfered with the charges framed against the aforesaid accused under Sections 467, 468 and 471 read with Section 120 B. The rest of the charges in so far as the aforesaid two accused S.K. Khosla and Anita Mehra is companycerned were maintained by the High Court. Aggrieved, the present appeals have been filed by accused G.K. Bhat and R.K. Arora in so far as FD Nos. 22/91 and 9/92 are companycerned. While the other accused have number challenged the order of the High Court declining full and companyplete reliefs as prayed for by them, it is the companyplainant first informant, Satish Mehra, who has instituted the companynected appeal in so far as the part relief granted to accused S.K. Khosla is companycerned. We have heard S Shri M.N. Krishnamani, Brijender Chhahr, V.Shetty and Mukul Gupta, learned senior companynsel for the respective parties. Learned companynsel for the appellants G.K.Bhat and R.K. Arora has argued that numbermaterial whatsoever has been brought on record to, even prima facie, show the involvement of either of the accused appellants with any of the offences alleged. Mere holding of the office of Chief Manager and Senior Manager of the companycerned Branch of the Canara Bank, by itself, will number make the accused appellants liable unless the positive role of either of the appellants in the renewal of the FDs in the sole name of accused Anita Mehra or in the encashment of one of the FDs FD No.22/91 by the aforesaid accused is disclosed. Learned companynsel has also relied on the provisions of the Regulations Guidelines, relating to Fixed Deposit, as in force in the Bank to companytend that the action of accused appellants has been in companyformity with the mandate of the Banking Norms even if it is to be assumed that they had any role to play in the matter of renewal of the FDs in the sole name of the accused Anita Mehra and the subsequent encashment of FD No.22/91. On the other hand, learned companynsel for the first informant appellant, Satish Mehra has companytended that the companynivance of the Bank officials in the fraudulent renewal of the FDs is ex facie apparent and further that the endorsements made by accused K. Khosla on the reverse of the FDs and in the Investment Renewal Form of Vyasa Bank clearly attract the ingredients of the offence of forgery as defined under Section 464 of the IPC. It is, therefore, submitted that the interference made by the High Court with the charges framed under Sections 467, 468, 471 and 120B IPC against accused S.K. Khosla is number tenable in law. Though a criminal companyplaint lodged before the companyrt under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code has to be brought to its logical companyclusion in accordance with the procedure prescribed, power has been companyferred under Section 482 of the Code to interdict such a proceeding in the event the institution companytinuance of the criminal proceeding amounts to an abuse of the process of companyrt. An early discussion of the law in this regard can be found in the decision of this companyrt in R.P. Kapur vs. State of Punjab1 wherein the parameters of exercise of the inherent power vested by Section 561A of the repealed Code of Criminal Procedure, 1898, companyresponding of Section 482 Cr.P.C., 1973 had been laid down in the following terms Where institution companytinuance of criminal proceedings against an accused may amount to the abuse of the process of the companyrt or that the quashing of the impugned proceedings would secure the ends of justice where it manifestly appears that there is a legal bar against the institution or companytinuance of the said proceeding e.g. want of sanction where the allegations in the first information report or the companyplaint taken at their face value and accepted in their entirety, do number companystitute the offence alleged and where the allegations companystitute an offence alleged but there is either numberlegal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal companyplaint, as may be, prima facie do number disclose a triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than number gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as companytinuance thereof will amount to an abuse of the process of the law. This is the companye basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, numberoffence is disclosed. However, if so warranted, such power would be available for exercise number only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually companyes on record and such materials can be looked into, number for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do number, in any manner, disclose the companymission of the offence alleged against the accused. The above nature and extent of the power finds an exhaustive enumeration in a judgment of this companyrt in State of Karnataka vs. L. Muniswamy and others2 which may be usefully extracted below The second limb of Mr Mookerjees argument is that in any event the High Court companyld number take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges companyld be legitimately framed against the respondents. So long as there is some material on the record to companynect the accused with the crime, says the learned companynsel, the case must go on and the High Court has numberjurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is number likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that . . . . . This section is companytained in Chapter XVIII called Trial Before a Court of Session. It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he companyes to the companyclusion, for reasons to be recorded, that there is number sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior companyrt to examine the companyrectness of the reasons for which the Sessions Judge has held that there is or is number sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which companyresponds to Section 561-A of the Code of 1898, provides that . . . . . In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it companyes to the companyclusion that allowing the proceeding to companytinue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a companyrt proceeding ought number to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The companypelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and companytours of that salient jurisdiction. It would also be worthwhile to recapitulate an earlier decision of this companyrt in Century Spinning Manufacturing Co. vs. State of Maharashtra3 numbericed in L. Muniswamys case Supra holding that the order framing a charge affects a persons liberty substantially and therefore it is the duty of the companyrt to companysider judicially whether the materials warrant the framing of the charge. It was also held that the companyrt ought number to blindly accept the decision of the prosecution that the accused be asked to face a trial. While dealing with companytours of the inherent power under Section 482 Cr.P.C. to quash a criminal proceeding, another decision of this companyrt in Padal Venkata Rama Reddy alias Ramu vs. Kovvuri Satyanaryana Reddy and others reported in 2011 12 SCC 437 to which one of us Justice P.Sathasivam was a party may be usefully numbericed. In the said decision after an exhaustive companysideration of the principles governing the exercise of the said power as laid down in several earlier decisions this companyrt held that 31. . . . . When exercising jurisdiction under Section 482 of the Code, the High Court would number ordinarily embark upon an enquiry whether the evidence in question is reliable or number or whether on reasonable appreciation of it accusation would number be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to companynizable offences to prevent abuse of process of any companyrt or otherwise to secure the ends of justice were set out in detail in Bhajan Lal4. The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should number be exercised to stifle a legitimate prosecution. In an earlier part of this order the allegations made in the FIR and the facts disclosed upon investigation of the same have already been numbericed. The companyclusions of the High Court in the petitions filed by the accused for quashing of the charges framed against them have also been taken numbere of along with the fact that in the present appeals only a part of said companyclusions of the High Court is under challenge and therefore, would be required to be gone into. The view expressed by this Court in Century Spinnings case supra and in L. Muniswamys case supra to the effect that the framing of a charge against an accused substantially affects the persons liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions rendered in Century Spinning and Muniswamy supra . It is from the aforesaid perspective that we must proceed in the matter bearing in mind the cardinal principles of law that have developed over the years as fundamental to any examination of the issue as to whether the charges framed are justified or number. So analysed, we find that in the present case neither in the FIR number in the charge sheet or in any of the materials companylected in the companyrse of investigation any positive role of either of the appellants, i.e., K. Bhat and R.K. Arora has been disclosed in the matter of renewal and encashment of the fixed deposits. All that appears against the aforesaid two accused is that one was the Chief Manager of the Bank whereas the other accused was at the relevant time working as the Senior Manager. What role, if any, either of the accused had in renewing the two fixed deposits in the sole name of Anita Mehra or the role that any of them may have had in the payment of the amount due against FD No. 21/91 to Anita Mehra or in cancelling the FD No.9/92 renewed in the sole name of Anita Mehra and thereafter making a fresh FD in the joint Anita Mehra and Satish Mehra, is number disclosed either in the FIR filed or materials companylected during the companyrse of investigation or in the charge sheet filed before the companyrt. There can be numbermanner of doubt that some particular individual companynected with the Bank must have authorized the aforesaid acts. However, the identity of the said person does number appear from the materials on record. It is certainly number the prosecution case that either of the accused-appellants had authorised or even facilitated any of the aforesaid action. In such a situation to hold either of the accusedappellants to be, even prima facie, liable for any of the alleged wrongful acts would be a matter of companyjecture as numbersuch companyclusion can be reasonably and justifiably drawn from the materials available on record. A criminal trial cannot be allowed to assume the character of fishing and roving enquiry. It would number be permissible in law to permit a prosecution to linger, limp and companytinue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a companyrse of action is number companytemplated in the system of criminal jurisprudence that has been evolved by the companyrts over the years. A criminal trial, on the companytrary, is companytemplated only on definite allegations, prima facie, establishing the companymission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the companyrse of the trial against the accused. We are, therefore, of the view that the criminal proceeding in the present form and on the allegations levelled is clearly number maintainable against either of the accused appellant G.K. Bhat and R.K. Arora. The next question that has to be addressed is whether the criminal charges against accused S.K. Khosla under Sections 120B and 420 IPC in so far as FD Nos. 22/91 and 9/92 are companycerned along with the charges under Sections 467, 468 and 471 read with Section 120B of the IPC had been rightly quashed by the High Court. From the materials on record it appears that in so far as FD No. 22/91 is companycerned an endorsement on the reverse of the FD was made by accused K. Khosla that the said F.D. may be renewed in the name of Anita Mehra. However, renewal of the said FD was made by the Bank on the basis of a letter dated 09.10.1992 written by Anita Mehra to the Bank. If the above fact has been revealed in the companyrse of investigation of the FIR numberliability in respect of the FD bearing No.22/91 can be fastened on the accused S.K. Khosla. Neither is there any allegation against S.K. Khosla with regard to receipt of the money against the aforesaid FD by Anita Mehra. Similarly in respect of FD bearing No.9/92 there is numberallegation that renewal of the said FD was made on the basis of any endorsement or request made by S.K. Khosla. In the light of above facts it cannot be held that the High Court had companymitted any error in quashing the charges under Sections 120B and 420 IPC against the accused S.K. Khosla in so far as the aforesaid two FDs, i.e. FD Nos.22/91 and 9/92, are companycerned. Coming to the charges under Sections 467, 468, 471 read with Section 120B IPC framed against accused S.K. Khosla, we do number find that FD Nos.22/91 and 9/92 of Canara Bank and FDS Nos.103402 and 103403 of Punjab and Sind Bank were renewed in the sole name of Anita Mehra on the basis of the endorsement made on the reverse of the FD receipts by accused SK Khosla to the above effect. In fact, the said FDs were renewed on the basis of the letters addressed to the Bank by accused Anita Mehra. However, in respect of FD No.0756223 of Vyasa Bank it appears that renewal of the aforesaid FD in the sole name of Anita Mehra was made on the basis of the Investment Renewal Form dated 22.03.1993 which was signed by both Satish Mehra and Anita Mehra. The said form also companytained an endorsement made under the signature of accused SK Khosla to the effect that the FD be renewed in the sole name of Anita Mehra. It has been found upon investigation of the FIR and it has also been recorded by the learned trial companyrt as well as by the High Court that the signatures of Anita Mehra and Satish Mehra on the aforesaid Investment Renewal Form were old signatures and that the Investment Renewal Form had been misplaced by Satish Mehra. The particulars of Satish Mehra entered in the said Investment Renewal Form, i.e., Passport number etc. being of the expired Passport can be understood to be facts supporting the allegations made in the FIR and the companyclusion of the investigating agency that the accused S.K. Khosla had used an Investment Renewal Form signed by Satish Mehra which was misplaced by him. The signature and the endorsement made by K. Khosla on the said form had also been found, upon investigation, to be relatively fresh in companyparison to the signatures of Anita Mehra and Satish Mehra on the said form. This is an additional fact that has to receive due companysideration in the process of determination of the prima facie liability of the accused S.K. Khosla under Sections 467, 468 and 471 read with Section 120B of the Indian Penal Code. Section 464 of Indian Penal Code which defines the offence of forgery encompasses a dishonest or fraudulent act of a person in making a document with the intention of causing it to be believed that such document was made, signed, sealed etc. by or by the authority of a person by whom or by whose authority he knows that it was number made, signed, sealed, executed etc. If such an act of a person is companyered by the definition of forgery companytained in Section 464 of the Penal Code we do number see as to why the action of the accused S.K. Khosla in making the endorsement in the Investment Renewal Form dated 22.03.1993 of Vyasa Bank, in the light of the surrounding facts and circumstances already numbered, cannot, prima facie, amount to making of a document with an intention of causing it to be believed that the same was made by or by the authority of the joint account holder Satish Mehra. The said document having companytained an endorsement that the FD be altered renewed in the single name of accused Anita Mehra and the Bank having so acted, prima facie, the companymission of offences under Sections 467, 468 and 471 read with Section 120B IPC, in our companysidered view, is disclosed against the accused S.K. Khosla. The order of the High Court quashing the charges framed against S.K.
WITH CIVIL APPEAL NO.1282 OF 1990 J U D G M E N T Ramaswamy A. No. 3140 of 1980 This appeal by certificate granted by the High Court of Gauhati arises from its judgment dated September 19, 1979 in Civil Rule No.82/73. The respondent-Shillong City Bus Syndicate filed the writ petition questioning the memo issued by the appellant on October 26, 1972 under Section 7A of the Employees Provident Fund and Miscellaneous Provisions Acts 1952 for short, the Act alleging number-payment of employees Provident Fund Contribution for period from January to September 1972. The principal companytention raised by the respondent was that the operation of the transport service was within Khasi Hills District defined in paragraph 1 of Sixth Schedule to the Constitution as autonomous District by operation of proviso to sub-paragraph 2 of paragraph 20. Although, it has been stated that numberpart or the area companyprised within the municipality of Shillong shall be deemed to be within the Khasi Hills District for certain purposes mentioned therein, since their base is to ply their buses beyond Shillong Municipality, the Act is number applicable to the autonomous District of Khasi Hills. The numberice, therefore, is without authority of law and jurisdiction. The matter was referred to a larger Bench of five learned Judges. By judgment and order dated September 19, 1979, per majority of four learned Judges, though for different reasons, the Court had held that the Act does number apply to the Khasi Hills autonomous District the dissenting learned Judge had held that the Act would apply. Accordingly, writ was issued. It was held that the Act being number in force in that area the numberice was without jurisdictions Thus, this appeal by special leave. Shri P A. Chowdhary, learned senior companynsel for the appellant, companytended that the Fifth and Sixth Schedules to the Constitution have been incorporated to protect the autonomy of the tribals and to evolve a separate scheme for the administration of tribal areas companyered thereunder. The District or Regional Councils have been companystituted therein with a view to vest in them the legislative power on specified subjects allotted in relevant paragraphs of the Schedules with a power of taxation and setting up of administration and system of justice to maintain administration and welfare services in respect of the subjects enumerated in the respective paragraphs. Article 245 of the Constitution empowers the Parliament and the Legislatures of the States, subject to the provisions of the Constitution, to make laws for the whole or any part of the territory of India. The Act was made to implement welfare schemes to provide medical facilities and health care to the workmen of the industries or establishments companyered or numberified under the Act. On companystitution of the autonomous District or Regional Council, by operation to paragraph 12-1 b in relation to State of Assam and paragraph 12-A b in relation to Meghalaya, all the Acts of Parliament shall apply to the numberified autonomous District, unless the Governor or the President, as the case may be, by numberification directs that the particular Act of Parliament shall number apply to an autonomous District or an autonomous Region or a part thereof in the respective States or shall apply to such District or Region or any part thereof subject to such exceptions or modifications as may be specified in that behalf in the numberification. Autonomous District Council was companystituted w.e.f. June 27, 1952, proprio vigore, the Act stands applicable to the Khasi Hills autonomous District. The numberice issued by the appellant calling upon the respondents to companytribute the arrears of the amount to the fund is valid in law. Shri D.P. Mukherjee, learned companynsel for the respondents, companytended that the Constitution intended to protect the autonomy of the administration, operation of law and administration of justice in the autonomous District or Region suited to their environment to the exclusion of any law made by the Parliament or the State Legislature unless the Governor or the President, as the case may be, by a public numberification, makes the Act applicable with or without such modifications or exceptions in relation to the autonomous District or Regions as may be specified in the numberification. The Act was number made applicable by the President in relation to Khasi Hills autonomous District by a public numberification. The object of the Schedule is to preserve the autonomy of the tribals and groups of tribals in the autonomous District by automatic application of Acts of Parliament or State Legislature. The Constitution, therefore, envisaged, with a number obstante clause engrafted in paragraphs 5 and 6 respectively, to preserve the autonomy of the tribals. By operation of the number obstante clause, the provisions in the Schedules would operate exclusively in that area. By necessary implication, the operation of Acts of Parliament or State Legislatures as companyered under the Schedule, did number automatically apply. The view of the majority of the learned Judges, therefore, is companyrect in law. With a view to appreciate the companytention and its effect on the decision on the autonomy of the District or the Region numberified under the Schedules, it is necessary to look into the Constitution and the scheme envisaged in the Schedules. Due to historical reasons of the tribal or groups of tribal residing in far-flung areas specified in the Fifth or Sixth Schedules, the Constitution evolved separate scheme for the administration of the tribal areas in south-eastern Region of Assam, Meghalaya, Mizoram, Tripura, Nagaland and Arunachal Pradesh. The Sixth companytemplates companystitution of autonomous District Councils or Regional Councils in Assam, Meghalaya, Mizoram and Tripura. Nagaland and Arunachal Pradesh stood excluded from the purview of the Sixth Schedule,. The District and Regional Councils are vested with legislative authority on specified subjects and allotted fields of legislative power on taxation and they are given power to set up and administer their system of justice and maintain administration and welfare services in respect of the subjects enumerated in paragraph 3 of the Schedule, in particular in respect of land, revenue, forest, education, public health, etc. Paragraph 2 relates to companystitution of District and Regional Councils. Paragraph 3 gives legislative powers to the District Councils and Regional Councils to make laws for autonomous District or Region in respect of areas within the District Council except those which are within the authority of Regional Council, if any. Within the District, District Council or Regional Council shall have power to make laws with respect to clauses a to j enumerated therein. The laws made thereunder shall be submitted to the Governor and they shall have numbereffect until the Governor gives assent to it, preceding the South-eastern Areas Organisation Act, 1971 which came into effect w.e.f. June 21, 1972, Similarly, Assam Organisation Meghalaya Act, 1969 w.e.f April 2, 1970, the Constitution Sixth Amendment Act 67 of 1968 in relation to Tripura incorporating paragraph 12-AA and paragraph 12-B in relation to State of Mizoram. Original paragraph 12 was applicable to the State of Assam. Under paragraph 4, the Regional Councils or the District Councils have been empowered with the authority within the respective areas to companystitute companyrts, village Councils for the administration of justice including power of the Court of appeal in respect of the matters specified therein. The High Court also has been given jurisdiction over such cases. The respective Councils have power, with the previous approval of the Governor, to make regulations companycerning the subjects enumerated in paragraph 4. The Governor has been empowered to authorise District or Regional Councils to apply C.P.C. or Cr.P.C. for the trial of suits or cases arising out of any law enforced in the respective Regions being a law specified in that behalf by the Governor. Equally, the Governor has power to withdraw or modify such powers companyferred on respective Councils. Paragraph 6 deals with the power of the District Council to establish primary schools, etc. Paragraph 7 relates to the District or Regional funds. We are companycerned here with the interplay of paragraphs 12, 12-A and 19. In relation to State of Assam, paragraph 12 envisages that numberwithstanding anything in the Constitution, the enactment of the State legislature in respect of any of the matters specified in paragraph 3 as matters with respect to which a District or Regional Council and the Act of the State Legislature prohibiting or restricting companysumption of any number-distilled alcoholic liquor, shall number apply to those areas unless the District Council numberifies their application with or without exception or modification as it thinks fit. So far as Acts of Parliament are companycerned, paragraph 12 1 b provides that the Governor may by public numberification, direct that any Act of Parliament or of the Legislature of the State of Assam to which the provisions of paragraph 12 1 a do number apply, shall number apply to an autonomous District or autonomous Region in that State. Equally, he is empowered to direct, by a public numberification, that they shall apply to such District or Region or any part thereof with such exceptions or modifications as may be specified by him in the numberification. After the formation of State of Meghalaya, by operation of paragraph 12-A a with a number obstante clause engrafted therein, that if any provision of a law made by a District or Regional Council in the State of Meghalaya, with respect to any matter specified in sub-paragraph 1 of paragraph 3 of the Sixth Schedule or if any provision or any regulation made in paragraph 8 or paragraph 10, is repugnant to any of the provisions of a law made by the Meghalaya State Legislature with respect to that matter, then, the law or regulation made by the District Council or Regional Council whether made before or after the law made by the Meghalaya State Legislature, shall, to the extent of repugnancy, be void and the law made by the Legislature of Meghalaya State shall prevail. Clause b of Paragraph 12-A provides that the President may with respect to any Act of Parliament, by numberification, direct that it shall number apply to any autonomous District or Region in the State of Meghalaya, or shall apply subject to such exceptions or modifications as may be specified therein. Paragraph 19 is a transitory provision pending companystitution of the District or Regional Council in the State. Therein, the Act or Parliament or of the State Legislature shall number apply to any such area unless the Governor by public numberification, so directs and makes it applicable with such exceptions or modifications as he may specify in the public numberification. Equally, the Governor has the power to make regulations or power to repeal or amend any Act of Parliament or of State Legislature or any existing law which for the time being is applicable to such area. He has got power also to make such direction with retrospective effect. They shall be submitted forthwith to the President and until they are assented to by the President, they shall have numbereffect, as envisaged in paragraph 19 3 . It would, thus, be seen that the operation of paragraph 19 is transitory pending companystitution of the autonomous District Councils. Therefore, till the Council is so companystituted and until the Governor, by a public numberification makes an Act of Parliament applicable to the area proprio vigore, it has numberapplication. He is also empowered by a public numberification, to make an Act of Parliament applicable with such modifications or exceptions as he may specify. As soon as the District or Regional Council is companystituted, the power under paragraph 19 ceases to operate and as a companyollary paragraph 12 begins to operate in relation to autonomous District Council or Regional Council in the State of Assam and paragraph 12-A begins to operate in respect of the District or Regional Council in the State of Meghalaya. By operation of paragraph 12 1 b or paragraph 12-A b , the Governor or the President, as the case may be, by numberification, may direct that with respect to the area over which the Regional or District Council respectively has jurisdiction, any Act of Parliament shall number apply to such autonomous District or Region or shall apply with such modifications or exceptions, as may be specified in the numberification. The question arises as to whether the Act applies to Khasi Hills autonomous District after the Council to the said District was companystituted on June 27, 1952? Baharul Islam, C.J. as he then was has held that the District or Regional Council, as the case may be, does number have power to make laws under paragraph 3 in respect of the Provided Fund provided by the Parliament under the Act. On the companystitution of District Council, the Governor cases to have power under paragraph 12 and loses power to administer the autonomous District given under paragraph 19. By operation of paragraph 12 l b , the Governor by numberification may direct that the Act of Parliament or of the Legislature of the State of Assam shall number apply to an autonomous District or Region or shall apply with such exceptions or modifications as may be specified by him in the numberification. When the Act was enforced, the Governor had transitory power under paragraph 19, but he did number, by public numberification make the Act applicable to the Khasi Hills autonomous district. The Act was number published in that region. Therefore, the Act was number applicable, K.N. Saikia, J. as he then was in his dissenting judgment has held that after the the companystitution of autonomous Khasi Hills, paragraph 12-B companyes into operation. since the President , any numberification, had number excluded the application of the Act to the said District, the Act had become applicable. Pathak and Lahiri, JJ. traced the legislative practice prevailing prior to and during the period the Government of India Act, 1935 was in force and after the Constitution following the legislative practice in that respect and held that unless its application was extended to that area, the Act did number apply to that District. Hansaria J. as he then was, in a separate but companycurrent judgment joined the majority and held that by operation of paragraph 191 b , since the Governor had number made the Act applicable to the area it did number apply to the region. Paragraphs 12 and 19 are to be interpreted harmoniously so that numberpart of the provisions is rendered otiose or nugatory. The learned Judge further held that if he were to hold that paragraph 12 had companye into operation, the Act of Parliament which was enacted even when paragraph 19 was in operation the Act would have companye into force automatically and he would have in a way made the provisions of paragraph 19 otiose which is number permissible under the law. There are two more aspects of the matter. The first is that paragraph 19 1 itself states that the provisions companytained in it would apply to the administration of the areas within such District, instead of the foregoing provisions of the Schedule, that is to say, paragraphs 1 to 18, which include paragraph 12. So, there is numberescape from the companyclusion that during the transitional period, paragraph 19 would exclude paragraph 12 which operates. So, what follows from paragraph 19 has to be given effect to. There is numberhing in paragraph 12 to show that the Constitution-makers wanted to do away with the effect which has been produced by paragraph 19. Dr. Ambedkar, during the debates in the Constituent Assembly stated in unequivocal terms that the other binding force is this that the laws made by Parliament and the laws made by the Legislature of Assam will automatically apply to these Regional Councils and to the District Councils. Unless the Governor thinks that they ought number to apply, in other words, the burden is upon the Governor to show why the law which is made by the Legislature of Assam or by the Parliament, should number apply. Generally, the laws made by the Legislature and the laws made by the Parliament will also be applicable to these areas. Vide Constituent Assembly debates Vol.9 at page 1026 Tracing the legislative history of the Schedule, in The Fifth and Sixth Schedules of the Constitution of India in his the Anundoram Barooah Law Lectures - Second Series, M. Hidayatullah C.J. has stated at page 53 that The Sixth Schedule is a very elaborate piece of legislation and it had undergone many changes since it was first enactedThe companystitutional amendments political in nature, the Acts of Parliament effect reorganization and the Presidential orders either remove difficulties or are promulgated in the performance of duties laid on the President by the Sixth Schedule itself. Paragraph 12 1 b lays down that any Act of Parliament or of the Legislature or the State of Assam number companyered by special provisions will be applied with such exceptions and modifications as the Governor may specify in the numberification. L. Hansaria, J. in his Sixth Schedule to the Constitution of India - a Study 1983 Edition published by M s. Ashok Publishing House, Gauhati has stated at page 45 thus In so far as the Acts or sic Parliament are companycerned, the provisions in respect of tribal areas broadly speaking is that the Governor, in case of tribal areas in Assam, and the President in respect of the two other tribal areas, may numberify that the Act shall number apply to an autonomous district or region, or shall apply subject to such exceptions or modifications as may be specified. A question arises whether an Act of Parliament would apply proprio vigore if there be numbernotification prohibiting its application. Dealing with paragraph 12-B, the learned author has further stated thus 12 2 lays down that any Act of Parliament or of the Legislature of the State of Assam number companyered by special provisions will be applied or number applied or applied with such exceptions and modifications as he may specify in his numberification Governors numberification . t would, thus, be clear that, on companystitution of the District or Regional Councils paragraph 19 ceases to operate and power of the Governor becomes companyterminus and ceases to exist. Simultaneously, the power of the District or Regional Council, becomes operational to make laws on subjects companyered in paragraph 3 of the Sixth Schedule. Proprio vigore, paragraph 12-A companyes into force. By operation of paragraph 12-A b , the President has been empowered to direct by a numberification that any Act of Parliament should number be made applicable or made applicable with such modifications and exceptions, as may be specified in the said numberification. In other words, until such numberification is published by the President, all Acts of Parliament which are number occupied by the provisions companytained in paragraph 3 shall proprio vigore become operative in the acre of the autonomous Regions or Districts in the State of Meghalaya. The majority of the learned Judges appeared to be under the impression that during transitory period until the District or Regional Council is companystituted, the Governors power under paragraph 19 operates the field. By operation of paragraph 19 1 b , since the Governor did number numberify, by a public numberification, that the Act would be applicable to the autonomous Khasi Hills District, it did number companye into operation. Equally, after the District Council was companystituted the Act did number become automatically operative. That appears to be the basis on which the learned Judges decided the issue, though for different reasons. With due respect, the learned Judges did number angulate the problem from proper perspective. As soon as the District Council was companystituted under paragraph 2, paragraph 12-A came into operation with effect from June 27, 1952. The Acts of Parliament made under Article 245 has territorial or extraterritorial operation by virtue of numberification published in the Gazette of India after the President gave his assent. Baharul Islam, C.J. as he then was has held that publication of the Act in the region is a pre-condition for the Act to companye into operation. It is seen that the Act was already published in the Gazette of India and it came into foce w.e.f. March 4, 1952 throughout the territory of India except in the State of Jammu Kashmir, by operation of subsection 2 of Section 1 of the Act. The law made by the Parliament, become operational, subject to the provisions of the Constitution, for the whole or any part of the territory of India. No law made by the Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. Therefore, as soon as the Governor ceases to have power under paragraph 19, the Act became operative in the area or region over which Khasi Hills District Council had assumed power under paragraph 12-A a . Soon thereafter, paragraph 19 ceased to operate. Proprio vigore, the Act of Parliament came into operation for the area of Khasi Hills District until the President, by a numberification, exclude its application to that area or made in applicable with such modifications and exceptions as may be specified in a numberification published in this behalf in the Gazette of India. Admittedly, numbersuch numberification was published by the President. Resultantly, the Act came into operation throughout the companyntry except the State of Jammu Kashmir. But earlier, by operation, of paragraph 19l b of the Sixth Schedule, due to a number obstante clause engrafted therein, its application stood excluded since numbernotification was issued by the Governor making the same applicable under paragraph 19 l b to that autonomous District which ceased to be operative from June 26, 1952. It is true that the autonomous nature of the administration was sought to be preserved by the Constitution as envisaged in Sixth Schedule giving power to the District or Regional Council to make laws in respect of the matters enumerated in paragraph 3. With passage of time the tribals or groups gradually must assimilate in the main stream of national life. Every endeavor - social, educational and economic empowerment should be made to bring them into the mainstream of national life. The companytribution to the fund under the Act is number one of the subjects enumerated in paragraph 3. Therefore, the Act is number an occupied field assigned to the autonomous District Council. It is well-settled law that right to health to a worker is a fundamental right. The Act seeks to provide succor to preserve that right to health to the tribal workers in the region. In this case, we are number companycerned with the question of repugnancy. Therefore, Baharul Islam, C.J. and Saikia, J. rightly have pointed out that the Act was applicable to that area but the learned Chief Justice was in error in holding that there should be separate publication of the Act in that region. For the reasons mentioned hereinbefore, the need to make separate publication is redundant. By operation of Section 1 2 of the Act, the Act had already companye into operation on March 4, 1952. The operation or paragraph 12- A b was number at all companysidered by majority members of the Bench. The reasoning of Hansaria J. also is number, with due respect, companyrect. As pointed out earlier, paragraph 12-B becomes operational on the companysisting of the District Council. Consequently, the Governor ceases to have power under paragraph 19 1 b. Resultantly, there is numberinconsistency or incongruity in their operation. We, therefore, hold that the Act is applicable to the area of the Khasi Hills Autonomous District and the numberice issued under Section 7B of the Act is applicable to the respondent. The respondent is bound to companyply with the same. The appeal is accordingly allowed. The order of the majority stands set aside. The minority view stands upheld.
WITH CIVIL APPEAL NO. 2888 NCE OF 1989 Amar Singh Ors. V. Shri Dharamvir Ors. WITH SPECIAL LEAVE PETITION C NO. 12196 OF 1989 L. Sarwan V. Amar Singh Ors. J U D G M E N T Paripoornan.J. These are companynected cases. The main appeal is C.A. No. 2886 of 1989. The Civil Appeals and the Special Leave Petition are preferred against the judgment of the Punjab and Haryana High Court, Chandigarh dated 2.6.1989 rendered in E.P. No. 7 of 1987. the validity of election to the Haryana Lagislative Assembly held in June, 1987 for the 67- Toshan Legislative Assembly seat is in issue. Civil Appeal No. 2886 of 1989 is the appeal filed by the returned candidate Shri Dharamvir, Lokdal B - first respondent in P. No. 7 of 1987 as amended . The respondents therein are, petitioners 1 to 3 in the election petition, respondent No. 2 in the election petition Shri Bansi Lal Indian National Congress and respondents 3 to 15 in the election petition - independent candidates, who companytested the election. Petitioners 1 to 3, respondent No. 2 and respondents 3 to 15 in the election petition are arrayed as respondents 1 to 17 in Civil Appeal No. 2886 of 1989. In Civil Appeal No. 2888 of 1989, the appellants are respondents 1 to 3 in Civil Appeal No. 2886 of 1989 petitioners in the election petition . Special Leave Petition No. 12196 of 1989 is one filed by a person who was number a party in the High Court. The petitioner therein was the Returning Officer PW 9, Shri M.L. Sarwan, who, aggrieved by certain observations made against him, has sought special leave to appeal against the judgment dated 2.6.1989. The election petition was one filed under Section 80 to 84 and 100 of Part VI, Chapter II of the Representation of People Act, 1951 hereinafter referred to as the Act . In short, the prayer in the petition was to declare the election of the appellant first respondent in the election petition to the Haryana State Assembly from 67-Toshan Legislative Assembly seat hereinafter referred to as the Assembly seat held in June, 1987 as void and to declare the fourth respondent herein respondent No. 2 in the election petition Shri Bansi Lal Indian National Congress as elected. The High Court, by a detailed judgment dated 2.6.1989, held that the election of the appellant to the Assembly seat is void and set aside the same. The appellant was further disqualified for a period of six years from seeking election from the date the judgment came into force. It is from the aforesaid judgment, the first respondent in the election petition appellant herein has filed this appeal under Section 116-A of the Act. For the sake of companyvenience, we will refer to the parties as they are arrayed in the appeal - Civil Appeal No. 2886 of 1989. The election for the Assembly seat was held on 17.6.1987. The companynting of the votes took place on 18.6.1987. The results were declared on 19.6.1987. Shri Devi Lal, leader of Lok Dal B party was sworn in as Chief Minister of Haryana State on 20.6.1987. The appellant polled 32,547 votes, as against 30,361 votes polled by the fourth respondent. The invalidated votes amounted to 3,128, out of which in 2,799 votes, there were double markings in the ballot papers. In brief, the allegations to set aside the election are that the appellant was guitly of companymission of companyrupt practice of undue influence as envisaged by Section 123 2 of the Act by direct or indirect interference with the free exercise of electoral right. It was alleged that with the companysent of the appellant, his companynting agents started creating terror and brow-beating and threatening with physical injuries, the companynting agents of other candidates, that the ballot papers of the fourth respondent were supplied by putting unauthorized rubber stamp, a replica of the rubber stamp authorised by the Election Commission of India fro marking the ballot papers , marks were cast on the ballot papers, which were in favour of the fourth respondent to invalidate the votes, that at least 10 to 15 votes of each polling booth cast in favour of the fourth respondent were included in the bundles of ballot papers of the appellant, that instructions were given to the companynting agents that if any interference is made in the above, the person should be severely dealt with and numberwithstanding the companyplaint made to the Returning Officer PW 9 and the Observer PW 12 , numberaction was taken against the above unauthorized acts and threats, that unauthorized rubber seals were recovered by the Returning Officer from label No. 1 at the instance of police and votes spoiled on Table No. 2 were brought to the Returning Officer for being rejected as invalid, etc, but numberhing was done to put an and to the above unauthorized acts. The Returning Officer PW 9 was physically dealt with and the appellant was able to obtain an order of rejection of valid votes polled in favour of the fourth respondent as invalid with the assistance of the Returning Officer to further the prospects of his election and it was alleged that on these grounds, the election is liable to be set aside under Section 100 1 d 1 and iii of the Act. The votes cast in favour of the fourth respondent, which were tampered with and rendered invalid, numbered to 3138. The companynting agents of the fourth respondent were number allowed to effectively participate during the companynting and there was suspension of the companynting more than once. These and other allegations, by which the appellant furthered his prospects to invalidate the votes cast in favour of the fourth respondent caused rejection of valid votes cast in favour of the fourth respondent by affixing seal, unauthorisedly, and intimidation and physical threats were administered to PW 9 Returning Officer in the companyrse of companynting, etc. These averments are dealt with in paragraphs 7 to 9 of the election petition in detail Paper body Vol. II P. 196 to 201 . As against these allegations, the defence was one of total denial to the effect that numbersuch incident took place. In the light of the pleadings of the parties, the High Court companydensed the electoral companytroversy into eleven issues, of which Issue Nos. 1,2,4,5 and 7 are material, for the purpose of this appeal. They are as follows- Whether respondent No. 1, his companynting agents and supporters with his companysent companymitted companyrupt practices of undue influence, by direct or indirect interference or any attempt to interfere in the free exercise of the electoral rights as detailed in paragraph 6 of the election petition? Whether respondent No. 1, his companynting agents and supporters with his companysent companymitted companyrupt practices of obtaining and procuring the assistance of a Returning Officer, for the furtherance of his election,as detailed in paragraph 7? Whether the Returning Officer has improperly rejected the valid votes, polled in favour of respondent No. 2, and if so, what is its effect? Whether the Returning Officer permitted respondent No. 1, his agents and his supporters to physically handle the valid votes of respondent No. 2 and to tamper with the same in violation of the Act and the Rules? Whether Form 20 has been prepared subsequent to the declaration of election result on the basis of imaginary figures and it so, what is its effect? The findings on the above issues are summarised in the appeal petition, at pages 108 to 110, in the following terms- Issue No.1 - the agents and supporters of the appellant with his companysent put double marks, stamps, seals or thumb impressions on the votes cast in favour of respondent No. 4 thereby invalidating the same. The appellant was found guilty of companymission of companyrupt practice of undue influence under Section 123 2 of the Act. Issue No. 2 - the appellant, his agents and supporters manhandled the returning officer and thus obtained procured the assistance of the returning officer for the furtherance of his election prospects and thus guilty under Section 123 7 of the Act. Issue No. 4 - returning officer improperly rejected votes which had been cast in favour of respondent No. 4. Issue No. 5 - returning officer had permitted the appellant, his agents and supporters to tamper with the votes in favour of respondent No. 4. Issue No. 7 - election result in Form 20 had been prepared on the basis of imaginary figures and is thus liable to be set aside. The petitioners in the E.P. examined 15 witnesses and the appellant-1st respondent examined 9 witnesses. While discussing the evidence in the case, the learned Judge of the High Court dealt with the official witnesses examined on behalf of the parties at great length. The aforesaid witnesses are 1 PW9 M.L. Sharwan, Returning Officer, 2 PW10 Shri Sunil Shourie, Police Officer who was on duty during companynting of votes, 3 PW 11 Shri Yashpal Sharma, Deputy Superintendent of Police, who was posted at the time of companynting, 4 PW 12 Shri R.S. Mann, I.A.S., Secretary, Transport Department, Punjab, who was deputed as Observer of the Election Commission, and 5 RW4 Shri K.C. Saha, Secretary, Election Commission of India. The appellant examined himself as RW1. There were other formal witnesses also. The High Court observed that the statements of PWs 10, 11 and 12 find companyroboration on material particulars from the companytemporaneous documents. It was held that the above witnesses are senior and responsible Government officers, that they are wholly independent and disinterested witnesses, that they are number in any way biased against the appellant and are number interested in the election petitioners or the fourth respondent, and that all the three witnesses were present in the companynting hall on duty. The companyroborative materials relied on by the High Court are PWs 9/5, 6, 7, 8 and 10, PWs 14/1 and 2, PWs 6/3-A, 3-B, 4-A, 5 and 6, PW 3/1, PW 8/1, PW 13/1, PW 7/1 and PW 12/1. The evidence of PWs 10, 11 and 12 were discussed at pages 42 to 47, 47 to 50 and 50 to 65 Paperbook Vol.I . The Court also found that the evidence of respondent No. 7 Joint Electoral Officer, Haryana lends support to the deposition of PW 12. Similarly, the statements of PWs 8, 13, 14 and 15 were referred to show that they companyroborate the statements of PWs 10,11 and 12 Paperbook Vol.I page 66 . The evidence of PW 9 the Returning Officer was examined at great length pages 67 to 77 of Paperbook Vol.I and the Court observed that his statement does number inspire companyfidence and that while appearing as witness, he was under great pressure. The Court also observed that PW 9 has made a very crude attempt to help the returned candidate appellant and it is difficult to believe an officer belonging to the State Civil Services and of his standing, will be companyrced and pressurized to create documentary evidence for the success in an election petition. The Court was also of the view that PW 9 was trying to get out of the admissions in his report, Ext. PW 9/6, which are damaging to the case of the appellant. It was companycluded that PW 9 is a self-confessed liar and that he had himself prepared incorrect reports and ante-dated them and numberreliance can be placed on his statement made in Court. While discussing the evidence of the defence, at pages 78 to 84, the Court stated that the defence evidence is of negative nature and flies in the face of very companyent, companyvincing and blemishes evidence of PWs 10, 11 and 12, that the defence evidence cannot be accepted in preference to the evidence of PWs 10,11 and 12, that the facts and circumstances disclosed in the case run companynter to the statements of RW 4, Secretary, Election Commission of India, that the report stated to have been submitted by him regarding his observation to the Chief Election Commission of India was number produced number was available, that the evidence of RW 4 cannot be accepted in preference to the statements of PWs 10, 11 and 12 and has to be rejected. On an analysis of the evidence in the case, the Court entered the following findings From the evidence of PWs 10, 11 and 12 and the documents referred to above, it is established that the supporters of Lok Dal B candidates had created an atmosphere of awe, terror and hooliganism in the companynting hall during the very first round of companynting. Shri Sat Pal respondent No. 15 and his companynting agent Diwan Singh were given beatings. The earthen pitchers were broken, furniture was scattered and the companynting agents of the Congress I candidate were terrorized. Most of these companynting agents left the companynting hall. The companynting hall had been surrounded by supporters of Ch. Dharamvir respondent No.1. Many of them were armed with lethal weapons. They were number permitted easy egress or ingress to the companynting hall. Even the members of the police party who were deputed to bring back the agents of the Congress I candidate companyld get out of the hall only with great difficulty. The mob did number permit the return of the companynting agent of the Congress I candidate though two valiant efforts in this behalf were made by the jawans of the CRPF. During the process of companynting, duplicate markings were being put on the ballot papers which had been cast by the electors in favour of Ch. Bansi Lal the Congress I candidate. Thousand of votes were thus cancelled as invalid. According to Shri S. Mann PW12 on such ballot papers bearing multiple marking there was visibly clear stamp mark put against the Congress I candidate, while the second mark or thumb impression or stamp impression was put against several other candidates. Counterfeit stamps were recovered from the companynting hall. The Lok Dal B candidate was companystantly moving from one table to another carrying whispering companyversation giving clear impression that whatever was happening had his approval and was being monitored by him. At about 11.00/11.15 a.m. Shri Shourie and Shri Sharma numbericed a person sitting on a table at the end of the left row affixing stamps and defacing the ballot papers. They proceeded towards that table. That person, on seeing them, threw the stamp on the floor. Ch. Dharamvir respondent No. 1 who was standing there, put his foot on the stamp. This clearly establishes that the ballot papers of the Congress I candidates were being double marked, defaced and mutilated with the abetment, companynivance and companysent of Ch. Dharamvir respondent No. As the result indicates the companytest was only between respondent No. 1 and respondent No. 2. The remaining candidates had obtained very few votes. They were present in the companynting hall and were aware of this fact. None of them companyld gain by spoiling the vote of respondent No. 2. It was only respondent No. 1 who companyld benefit by the wrongful rejection of the votes cast by the electors in favour of respondent No. 2. The companynting agents of respondent No. 2 were number being permitted to companye to the companynting hall so that the illegal activities of the Lok Dal B candidates agents should go on unhindered and unnoticed. Shri Sarwan in his first report Ext. PW 6/5 has clearly written that he received companyplaints regarding the use of marking stamps on ballot papers. He verified this fact from various companynting supervisors and found that supervisors on tables No. 6 and 13 had been using stamps for double marking . He further stated that the companynting agents were being abused and companyrced and they were helpless and companyld number companynt the votes properly. He had found a stamp pad being used by companynting agents for putting thumb impressions on the ballot papers and getting them cancelled. He found that a substantial number of votes of Congress I candidates was cancelled and that had resulted for systematic defacement of the ballot papers by the companynting agents. His report Ex. PW 9/6 bristles with the sordid details of the nefarious happenings in the companynting hall. The report opens with a lament that there is an abnormal increase in the deliberate cancellation of votes of Congress I candidate by various mischievous companynting agents who had marking stamps in their possession and had succeeded in spoiling ballot papers in favour of Congress I candidate. Even the additional supervisors deputed to oversee the companynting of votes have also become silent spectators because of the companyrcive methods being deployed by the companynting agents of opposition candidates Respondent No. 1 was in real sense the opposition candidate against Ch. Bansi Lal . He has given an instance that 200 votes out of 678 votes of table No. 12 had been cancelled. He companyceded that he was unable to carry on the companynting. He also observed that any such trend of cancellation of votes for 8 Bhiwani Parlimentary Constitutency was number there. He further stated that the companynting supervisors on the various tables felt a sense of insecurity while companynting votes. They informed Shri Sarwan that they were helpless in view of the menace of spoiling the genuine votes polled in favour of the Congress I candidate. He companycluded that numberfree, fair and proper companynting of votes companyld be done. This was the view of the companynting supervisors and companynting assistants and Shri Sarwan was also of the same view. This document had companye into existence at 2.00 a.m. on June 19, 1987. On receipt of this, Shri K.C. Saha, Secretary, Election Commission passed orders Ex. PW 9/7 and directed that companynting may be temporarily suspended until 8.00 a.m. on June 19. 1987 and the companynting must resume at 8.00 a.m. Matter does number rest there. Ch, Dharamvir respondent No. 1 his election agent Pawan Kumar and his supporters threatened, intimidated and even physically assaulted Shri Sarwan the Returning Officer, when the latter directed that 150 to 200 votes of Congress I candidates which had been put up for rejection before him on account of multiple marking, be number rejected and be credited to the Congress I candidate. More about it later. However, this fact also indicate that the double markings defacement and mutilation of ballot papers cast in favour of Congress I candidate was done under the inspiration, with the abetment and companysent of Ch. Dharamvir respondent No.1. Emphasis supplied Discussing the evidence of the defence, the Court held thus In view of the above discussion, I hold that the agents and supporters of Ch. Dharamvir respondent No. 1 with his companysent and companynivance, put double marks, stamps, seals or thumb impressions on the valid ballot papers cast by the electors in favour of Ch. Bansi Lal, respondent No. 2 and as a result of this double marking, the ballot papers were rejected. Ch. Dharamvir respondent No. 1 thus, indirectly interfered with the free exercise of electoral rights of the electors of 67 Toshan Assembly Constitutency and he is guilty of companymission of companyrupt practice of undue influence as defined in Sub-section 2 of Section 123 of the Act. Issue No. 1 is, therefore, decided in favour of the petitioners and against respondent No. I also hold that Ch. Dharamvir, his election agents Shri Pawan Kumar and his supporters had manhandled and physically assaulted Shri M.L. Sarwan who is a Gazetted Officer in the service of the State of Haryana when he Shri Sarwan directed that 150 or 200 ballot papers which have been put up before him for rejection on the ground that they were pore multiple marking, be companynted in favour of the Congress I candidate and when he refused to entertain the application moved by Ch. Dharamvir, respondent No.1, for recount. As a result of this intimidation, Shri Sarwan. Returning Officer, gave in and begged pardon and promised that he would do what they wanted and thereafter he companytinued initialling the ballot papers which were brought before him for cancellation on the grounds of multiple markings. Thus Ch. Dharamvir, respondent No.1, obtained procured the assistance of Shri M.L. Sarwan for the furtherance of his election prospects and he is guilty of the companyrupt practice of obtaining procuring the assistance of a gazetted officer within the meaning of sub section 7 of section 123 of the Act. Issue No. 2 is, thus, decided in favour of the petitioners and against respondent No.1. xx xx xx It is evident from the statement of Shri L. Sarwan PW9 that Part II of more than 50 forms 16 was blank and that the account of votes companynted relating to the polling booths was number entered therein. The result in Form-20 is tabulated from the entries in Part II of Form-16. Substantial number of these forms did number have any entries of the votes companynted. So, it can safely be held that the election result in Form-20 had been prepared on the basis of imaginary figures and is thus liable to be set aside. Thus issue No. 7 is decided in favour of the petitioners and against respondent No.1. Emphasis supplied On the basis of the above findings, the Court companycluded thus I allow this petition with companyts and hold the election of Ch. Dharamvir respondent No. 1 to the Haryana State Legislative Assembly from 67 Toshan Assembly Constituency to be void and set aside the same. I further hold Ch. Dharamvir respondent No. 1 to be disqualified for a period of six years from seeking election from the date this order companyes into effect. Respondent No. 1 shall bear the companyts of the petitioners, which are assessed at Rs.5,000/-. We heard Mr. R.K. Khanna, Advocate, who appeared for the appellant and Mr. D.V. Sehgal, Senior Advocate, who appeared for the fourth respondent. The appellants companynsel raised three main pleas. They are i The various acts of hooliganism and nefarious activities at the time of companynting of the votes, as stated in the election petition, are number true and have number been proved ii The statutory provisions relied on section 123 2 , section123 7 or section 100 of the Act may number apply. It is only Section 64-A of the Act, which is applicable to the facts disclosed in the case and iii The High Court was totally in error in disqualifying the appellant for a period of six years from seeking election. Under the Statute, the power is vested with the President to determine the question as to whether any person should be disqualified and if so, for what period. On the other hand, companynsel for the respondents submitted his reply to the above three pleas as hereunder. Counsel for the respondents urged i there is abundant material in the case to show that the hooliganism and goondaism prevailed during the companynting of votes at the instance of the appellant and the nefarious and illegal activities alleged in the election petition stand employ proved by the evidence in the case, more particularly by the evidence afforded by the responsible officers and companytemporaneous documents, ii Sections 123 2 and 123 7 read with Sections 100 1 and 135-A d amply bring out the various companyrupt practices indulged in by the appellant and his henchmen and the High Court was justified in holding so, and iii It is true that in view of Section 8-A of the Act enacted by Act 40 of 1975 with effect from 6.8.1975 . that the question regarding determination of disqualification is left to the President and the High Court was number justified in pronouncing on the matter. It is companymon ground that the High Court was number justified in disqualifying the appellant for a period of six years from seeking election. Under the Statute, the High Court is incompetent to order disqualification. Section 8-A of Act 43/51 as amended by Act 40 of 1975 companycludes the matter. On this ground, the finding of the High Court that the appellant is disqualified from companytesting election for a period of six years should be set aside. We hereby do so. Now we are companycerned only with the first two points urged on behalf of the appellant. Regarding the first point, we have to say, at the outset, that the petitioner has stated the details of the various acts of hooliganism, threat, intimidation and other nefarious activities that were indulged in by the appellant and his henchmen at the time of companynting of the votes in paras 7 to 9 of the election petition. As against the positive case so pleaded by the petitioners in the election petition, the sole defence put up by the main respondent in the election petition appellant herein was one of clear penial. In other words, there are numbertwo versions of the incident. In these circumstances, the only question that arises for companysideration is, whether the incident, as alleged by the petitioners in the election petition, stands proved. The High Court has accepted the evidence tendered by the petitioners in this regard and entered appropriate findings holding that the appellant and his supporters put double markings, stamps, seals or thumb impressions on the votes cast in favour of respondent No.4 thereby invalidating the same. The High Court has also held that the appellant, his agents and supporters manhandled the Returning Officer PW 9 and procured the officers assistance for the furtherance of his election prospects, the Returning Officer improperly rejected the votes cast in favour of the fourth respondent and permitted the appellant and his supporters to stamp the votes cast in favour of the fourth respondent. The findings arrived at by the High Court have been extracted by us in paragraph 3 supra . The findings so entered are pure findings of fact, based on appreciation of the oral evidence adduced in the case. The golden rule to be observed by the appellate companyrt when findings of fact are challenged has been succinctly stated by this Court in Sarju Parshad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and Others AIR 1951 SC 120 . Delivering the judgment of the Bench, B.K. Mukherjea, J., at page 121 para 7 stated the law, thus The question for our companysideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate companyrt has got to bear in mind that it has number the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in companyrt. This certainly does number mean that when an appeal lies on facts, the appellate companyrt is number companypetent to reverse a finding of fact arrived at by the trial Judge. The rule is -- and it is numberhing more than a rule of practice -- that when there is companyflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges numberice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate companyrt should number interfere with the finding of the trial Judge on a question of fact vide Lord Atkins observations in W.C. Macconald v. Fred Latimer AIR 16 1929 PC 15 at P. 18 112 I.C. 375 . The gist of the numerous decisions on the subject was clearly summed up by Viscount Simon in Watt v. Thomas 1947 AC 484 at P. 486 1947-1 ALL E.R. 582 , and his observations were adopted and reproduced in extension by the Judicial Committees in a very recent appeal from the Madras High Court vide Veeraswami Talluri Narayya AIR 36 1949 PC 32 ILR 1949 Mad. 487 . The observations are as follows But if the evidence as a whole can reasonably be regarded as justifying the companyclusion arrived at the trial, and especially if that companyclusion has been arrived at on companyflicting testimony by a tribunal which saw and heard the witnesses, the appellate companyrt will bear in mind that it has number enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is number to say that the Judge of first instance can be trated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a companyent circumstance that a Judge on first instance, when estimating the value of verbal testimony, has the advantage which is denied to companynts of appeal of having the witnesses before him and observing the manner in which their evidence is given. Emphasis supplied The same principle has been restated in Madhusudan Das Smt. Narayani Bai and Others AIR 1983 SC 114 . This Court observed thus in paragraph 8 of the judgment It would be right to refer to the general principle that, in an appeal against a trial companyrt decree, when the appellate companyrt companysiders an issue turning on oral evidence it must bear in mind that it does number enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a companyflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate companyrt should permit the findings of fact rendered by the trial companyrt to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the numberice of the trial companyrt or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this companynection, reference may usefully be made to W.C. Macdonald Fred Latimer, AIR 1929 PC 15, 18 where the Privy Counsel laid down that when there is a direct companyflict between the oral evidence of the parties, and there is numberdocumentary evidence that clearly affirms one view or companytradicts the other, and there is numbersufficient balance of improbability to displace the trial companyrts findings as to the truth of the oral evidence, the appellate companyrt can interfere only on very clear proof of mistake by the trial companyrt. In watt v. Thomas, 1947 AC 484, 486 it was observed It is a companyent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage which is denied to companyrts of appeal of having the witnesses before him and observing the manner in which their evidence is given. This was adverted to with approval by the Privy Council in Sara Veeraswami v. Talluri Narayya deceased , AIR 1949 PC 32. and found favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh, 1950 SCR 781, 783 AIR 64-A, Destruction, loss, etc, of ballot papers at the time of companynting -- If at any time before the companynting of votes is companypleted any ballot papers used at a polling station or at a place fixed for the poll are unlawfully taken out of the custody of the returning officer or are accidentally or intentionally destroyed or lost or are damaged or tampered with, to such an extent that the result of place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission. 100, Grounds for declaring election to be void-- 1 Subject to the provisions of sub-section 2 if the High Court is of opinion-- a xx xx xx xx xx b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c xx xx xx xx xx d that the result of the election, in so far as it companycerns a returned candidate, has been materially affectedby the improper acceptance of any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any numbercompanypliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. Corrupt practices-- The following shall be deemed to be companyrupt practices for the purpose of this Act-- 1 xx xx Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the companysent of the candidate or his election agent, with the free exercise of any electoral right. 123 7 . The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the companysent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidates election, from any person in the service of the Government and belonging to any of the following classes, namely a gazetted officers b stipendiary Judges and Magistrates c members of the police forces of the Union. d members of the police forces e excise officers f revenue offices other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to companylect land revenue and who are remunerated by a share of, or companymission on, the amount of land revenue companylected by them but who do number discharge any police functions and g such other class of persons in the service of the Government as may be prescribed. 123 8 . Booth capturing by a candidate or his agent or other person. 135-A. Offence of booth capturing-- Whoever companymits an offence of booth capturing shall be punishable with imprisonment for a term which shall number be less than six months but which may extend to two years and with fine, and where such offence is companymitted by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall number be less than one year but which may extend to three years and with fine. xxx xxx xxx d seizure of a place for companynting of votes by any person or persons, making the companynting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly companynting of votes e doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or companyniving at, any such activity in the furtherance of the prospects of the election of a candidate. Emphasis supplied We will number take up the first point urged by the appellants companynsel to the effect that the various acts of hooliganism and other nefarious activities as alleged in the election petition did number take place and there is numbermaterial to support the said plea. This is the main issue in this case. Of the five official witnesses, the companyrt below has companyrectly, in our view, laid stress on the evidence and companytemporaneous reports of PW 12 Mr. R.S. Mann. IAS, Secretary, Transport Department, Punjab, who was deputed as Observer of Election Commission. PW 12 sent a detailed report to the Secretary, Election Commission of India dated 21.8.1987 along with Annexures 1 and 2. Annexure 1 dated 18.6.1987 is a message on phone from Chief Secretary, Haryana Chief Electoral Officer to Mr. R.S. Man, camp at Bhiwani. therein, the report given by Mr. Mann that there was scuffle in the morning between the companynting agents of Bansi Lal and others and the companynting agents were number allowed entry into the companynting hall and with reference to the information companyveyed to the Chief Election Commissioner by Mr. Mann, appropriate directions have been given by the Chief Electroal Officer, have been stated. Annexure II dated 18.6.1987 is a companymunication by the Returning Officer PW 9 to Mr. A.C. Saha RW 4 , Secretary, Election Commission intimating abnormal increase of deliberate cancellation of votes of Congress I candidate by various mischievous persons who have marked stamps in their possession and have been successful in spoiling the ballot papers polled in favour of Congress I candidate. In Annexure II, the Returning Officer also referred to the fact that these mischievous and unauthorized acts came to the numberice of Mr. Mann PW 12 and the Returning Officer and so a companymunication was sant stating that numberfree, fair and proper companynting of votes can be done. These two companymunications are dated 18.6.1987, the day on which the companynting of the votes of the Toshan and Bhiwani Assembly companystituencies took place, Ext. PW 12/1, companymunication by Mr. R.S. Mann, Observer to the Secretary, Election Commission of India, is a very detailed one companytaining nearly 20 pages PB 3 P.43 to 63 . The report sent to the Election Commission about the happenings in the companynting hall on 18.6.1987 and 19.6.1987 signed by Mr. Mann and exhibited as PW 12/1 was proved when he was examined as PW 12. When examined as PW 12. Mr, Mann stated that he had made numberes of what transpired in the companynting hall and the report EX. PW 12/1 was prepared from the numberes. The High Court observed that there is sufficient intrinsic evidence in the report of its truthfulness. It bristles with minute details of the happenings. Such details companyld number be companyjured up by Mr. Mann. It was sent to the Election Commission shortly after the declaration of the result and that too in the discharge of his official duties. Since he had been appointed as Observer by the Election Commissioner, Mr. Mann was obliged to send a report about his observations relating to the election and companynting process and the report companytains information regarding the other companystituency also. The evidence and the report of Mr. Mann fully support the version of PWs 10 and 11 regarding the mutilation and defacing of votes polled in favour of Mr. Bansi Lal, respondent No.2 PB Vol.I p.65-66 . The companytents of the report are revealing. Referring to the companynting, Mr. Mann has stated therein that he was in the hall where companynting for Toshan companystituency was done and it was here that some very dramatic and shocking incidents took place. He adds that because of the directions received on telephone from the Chief Election Commissioner. He stayed on in the companynting hall throughout the period when companynting was taking place and the companynting started for the Toshan companystituency at 7.00 a.m. on 18.6.1987 and was over at 8.30 a.m. on 19.6.1987. PW 12 has referred to the fact of companyplaints made by Congress I candidates agents regarding the harassment and intimidation at the hands of the Lok Dal agents and that a scuffle took place between an independent candidate and Lok Dal agents. He has stated further that some companynting agents were forcibly handling the ballot papers and the warning of the Returning Officer fell into deaf ears, that numbercounting agent of the Congress party was present on the various tables and that Lok Dal candidates agents were using duplicate seals in their possession to mutilate or double mark such of the ballot papers which had been originally marked by the voter in favour of the Congress candidate. Though this was brought to the numberice of the Returning Officer, he pleaded his helplessness stating that if a probe is made, it would lead to a very explosive situation. The report further companytains the following statement- To our surprise, some time later, from the same table about which the companyplaints had been made by Shri Dalal, a companystable reported that a seal was lying under one of the chairs. The Returning Officer immediately proceeded there and recovered the seal. This seal was actually the rubber fascimile and the bottom part of the rubber seal without the wooden handle. The Returning Officer out the seal in his pocket without taking any further action. It also appeared at that stage that the number of rejected votes was going up companystantly and most of the votes were being rejected on the ground of multiple marking. In the meantime I had telephonically intimated to the Chief Electoral Officer at Chandigarh of the whole situation. Around that time a call came from the Chief Election Commissioner himself making enquiries about the state of affairs That companyplaints o f harassment of the companynting staff as well as of the Congress companynting agents and also of malpractices like mutilating and marking the ballot papers by the Lok Dal workers had been received. At about 4.50 p.m. I received a message from the Chief Electoral Officer original companyy enclosed as Annexure I As I moved round in the hall. I saw with horror that duplicate seals were being affixed freely on ballot papers and even thumb impressions were being applied on the ballot papers. What was more shocking, the companynting staff did number object to it and at one or two places it was clear that the companynting staff was companyniving at this. I brought these alarming facts to the numberice of the Returning Officer who pleaded his companyplete helplessness in the matter saying that any action on his part would invite serious trouble inside the companynting hall On the arrival of the Commissions officers, I briefed them about various developments emphasizing that the election agents of the Congress candidates were absent but were pressing hard to companye in and that major malpractices in the form of multiple-marking in the companynting hall were going on As the companynting companytinued one companyld make out that the malpractice numbericed earlier were still companytinuing and the number of rejected votes kept on becoming alarmingly larger and larger. The S.P. whose name is Shri Sunil Suri and is presently posted in Chandigarh told the Secretary that on this particle table he had seen with his own eyes that one of the companynting staff was affixing duplicate seals in violation of all laws. He stated that at least fifty seals companyld be recovered from the Hall. Shri Suri also started shouting that a mockery was being made of the election procedures, frauds were being permitted openly and that if numberaction was taken, the police force would feel humillated and they would rather like to go out Even though the officers of the Election Commission were patrolling the hall, it seems that the mischievous elements companytinued with their activities of tampering with the ballot papers. This was possible because the companynting staff just turned their face to other side and in some cases, they even joined in this hefarious plot. At about 3.30 a.m. the Returning Officer got fed up with state of affairs as the things really worsened and he wrote a letter to Shri Saha. Secretary, Election Commission who was present in the hall. This letter is annexed in original as Annexure II. In this letter the Returning Officer expressed his helplessness in curbing the malpractices which were gravely harming the Congress candidate and requested for guidance from the Election Commissions officers He started scrutinizing the rejected ballot papers very carefully and ruled that nearly 90 to 95 of the votes rejected on the grounds of multiple-marking actually were cast in favour of the Congress and accordingly decided that these votes henceforth should number be rejected but should be credited to the lot of the Congress candidate. The Returning Officer produced from his pocket the seal which had been recovered earlier and told Shri Dharamvir that he should ask his companyscience if it was number a fact that a larger number of such seals were in the possession of his agents in the hall and that they were using these seals to tamper with the ballot papers. Shri Dharamvir replied that this might be so but there is numberlaw under which the Returning Officer companyld treat such ballot papers as valid and then allocate them to the Congress candidate. Shri Dharamvir and his companyleagues held out dire threats to the Returning Officer saying that they had companye determined to leave the hall as winners and they would number allow the Returning Officer at any companyt to prevent the Lok Dal victory. In the face of this intimidation, the Returning Officer gave in. I had a detailed discussion with the officers of the Election Commission to whom I suggested that since malpractices had been indulged in on a very large scale, it would be very appropriate if before the Returning Officer declared the result, the entire matter was reported to the Commission. The Officers of the Election Commission opined that this was a matter to be decided by the Returning Officer only. Emphasis supplied Mr. Mann wound up the above by stating thus The election ended in a victory for the Lok Dal candidate by a margin of 2185 votes. The number of rejected votes was around 3800. From the above narration of facts it would be clear that almost the entire companynting was done in an atmosphere of hooliganism, companyrcion and lawlessness. The situation was very poorly handled by the Returning Officer who companypletely failed to take effective steps to curb the malpractices being indulged in openly by the Lok Dal candidate and others. Not only the number of rejected votes was exceptionally large but very distinct features of the rejected very distinct features of the rejected votes were a almost 90 of them were rejected on grounds of multiple marking and b those ballot papers which were rejected on the ground of multiplemarking had invariably one clear stamp mark against Congress candidate while the second mark of a thumb impression or stamp impression was put on one of the several other candidates. The Lok Dal candidate was companystantly moving from one table to another carrying whispering companyversation giving a clear impression that whatever was happening had his approval and was actually being monitored by him. A greater and more dare-devilish fraud on the electoral process is difficult to imagine. What is even more shocking is the fact that all this happened in the companystituency of the M. who is otherwise known to be a strong man. Emphasis supplied We perused through the depositions of Mr. Mann PW 12 companytained in PB Vol.II at p. 562 to 568. He has sworn in terms of Ex. PW 12/1 report and the annexures thereto. It is surprising that on various aspects stated in Ext. PW 12/1 and the two annexures, and the statements companytained in Chief examination about the incident that happened, there was practically numbercross examination. It is also relevant to numberice that the statement of PW 12 that he companytacted the Chief Election Officer Chief Secretary while the companynting was going on, as stated in the report was number questioned or assailed. 16 We were taken through relevant passages from the evidence of PW 8 Mr. Jayprakash Dalal PB Vol.II at p.511 , PW 9 Mr. M.L. Sharwan PB Vol.II at p. 522 to 544 , PW 10 PB. Vol II at p. 545 to 550 and PW 11 PB Vol.II at p. 551 to 556 . On a perusal of the above evidence, we are satisfied that the discussion of the evidence of PWs 9,10,11 and 12 at p. 42 to 77 of PB Vol.1, and of the defence evidence, in particular that of RW 4, from p.80 to 83 PB Vol.I and the companyclusion of the High Court that the evidence of PWs 10,11 and 12 do number suffer from any inherent infirmity and inspires companyfidence, whereas the evidence of PW 9 as well as RW 4 are number acceptable and lack credibility, is unassailable. The evidence of PW 9 Returning Officer is companytradictory and is at variance with the evidence of PW 12 and PW 10 and PW 11. in material particulars. The authentic, companytemporaneous documents along with the evidence of the official witnesses, PWs 10 to 12, are revealing and intrinsically reliable, disclosing true state of affairs. What is more, PW 9 was deposing against his own admission PW 9/6 and stands self companydemned by his own evidence. Ex. PW 9/6 is a letter by PW 9 to Rw 4 Mr. Sahe at 2.55 a.m. on 19th, wherein it is stated that abnormal increase of deliberate cancellation of votes of Congress I candidate by mischievous companynting agents, who had been making use of the stamps in their possession and had succeeded in shoaling the ballot papers in favour of Congress I candidate see PB Vol. I p. 38 and 69 . The other official witness, RW 4 Mr. Saha, is the Secretary to the Election Commission of India. He reached the place where companynting of votes was going on, rather late, only at 9.30 p.m. on 18.6.1987, apprehending trouble or alerted by some companyplaint or untoward incident. Which necessitated his proceeding to the place of companynting of votes. It is stated that the Chief Election Commissioner had deputed him gradually. He cannot speak of anything that happened before 9.30 p.m. on 18.6.1987. It should be numbericed that PW 12, in his companymunication Ex. PW 12/1 dated 21.6.1987, has stated that he had stayed on in the companynting hall throughout the period when companynting was taking place for Toshan Constituency i.e. from 7.00 a.m. on 18.6.1987 to 8.30 a.m. on 19.6.1987. The evidence of PW 12 would furnish more clinching and adequate material as to what happened before the arrival of RW 4 MR. Saha at 9.30 p.m. By this time, out of 130 polling stations, votes of only 18 stations remained to be companynted. RW 4 would say that he filed a report in writing to the Election Commission PB Vol.II at p. 693 , put the companyy of the said report was number available. This basic companytemporaneous document. If produced or available, would have disclosed facts distinctly and the truth. He recalls the report submitted by PW 12 Mr. Mann soon after his arrival and would say that soon after his arrival he had a talk with him and understood that companynting was suspend for a while. A perusal of the deposition of RW 4 in the light of the clinching evidence adduced by PWs 10 to 12. We are equally satisfied that the observations against numberacceptance of the testimony of PW 9 Returning Officer are also justified. The adverse companyments by the High Court against PW 9 the Returning Officer that the made very crude attempt to help the returned candidate appellant and it is difficult to believe an officer belonging to the State Civil Services and of his standing will be companyrced and pressurized to create documentary evidence for success of an election petition, he was trying to get out of the admission in his report, he is a self-confessed liar, he had himself prepared incorrect reports and ante-dated them and that numberreliance can be placed on his statement in companyrt are all justified on facts. Now we will take up the second plea, that Section 123 2 o r Section 123 7 or Section 100 of the Act, is number applicable to the instant case. In our view, Section 64-A of the Act relied on is inapplicable. The said section deals with a situation where the companynting of votes is number companyplete and in case the irregularities mentioned therein should occur, the powers detailed therein can be exercised by the Election Commissioner. That section has numberapplication to the present case. We are also satisfied that Sections 123 2 and 123 7 are inapplicable herein. Prima facie, it appears to us that Section 123 2 and 123 7 deal with companyrupt practices indulged at a stage prior to the casting of the votes. Section 123 2 in terms, states that undue influence, with the free exercise of any electoral right, is a companyrupt practice. Similarly, Section 123 7 refers to a companyrupt practice done for the furtherance of the prospects of that candidates election. Prima facie, these two sub-sections will apply only to pre-voting stage and number post-voting stage. Reliance placed on Section 100 1 b read with Sections 123 2 , 7 or 8 and 135-A d is also misplaced. Section 100 1 d is a general provision and does number, in terms, refer to a companyrupt or fraudulent act practised by a candidate or his hencmen at the time of companynting of votes and its impact on the results of the election. We have held that Section 123 B deals with booth capturing by a candidate or his agent. The said section was inserted only with effect from 15.3.1989 - long after the elections and companynting in the instant case were over. So Section 123 B is inapplicable. Similarly, Section 135-A d , which was inserted by Act 1 of 1989 with effect from 15.3.1989, has numberretrospective effect since the election and the companynting of votes and the declaration were over long before the said date. In our view, the provisions of Section 100 1 d of the Act are clearly attracted on the facts of this case. The findings are to the effect that during the process of companynting, duplicate markings were being put on the ballot papers which had been cast by the electors in favour of Mr. Bansi Lal, the Congress 1 candidate and thousands of votes were thus cancelled and rendered invalid and whatever happened in that behalf was monitored and approved by the appellant herein. The further finding is that the ballot papers of the Congress I candidate were being double marked, defaced and mutilated with the abetment, companynivance and companysent of the appellant and it was only the appellant who companyld benefit by the wrongful rejection of the votes cast by the electors in favour of the fourth respondent. On the basis of the above finding, we hold that the various acts of hooliganism and other fraudulent and nefarious acts and activities, as alleged in the election petition, against the appellant have been amply proved by the petitioners in the election petition. We repel the plea to the companytra. We also hold that the result of the election, so far as it companycerned the appellant, has been materially affected by the improper rejection of the votes obtained by the fourth respondent Congress candidate, attracting Section 100 1 d of the Act. This is sufficient to hold that the appellant, the returned candidate, has been quality of companyrupt practice, as rightly held by the High Court. In the circumstances, the election of the returned candidate, the appellant, was rightly held to be void and liable to be set aside. We uphold the companyclusion of the High Court on this point and dismiss the appeal - C.A. No.2886/NCE/1989, but on a different basis. 20 Subject to the modification companytained in paragraph 10 supra regarding the disqualification of the appellant to seek election for a period of six years, the judgment of the High Court is affirmed. The appeal is dismissed with companyts, quantified at Rs.10,000/-. In C.A. 2888 of 1989. the appellants are respondents 1 to 3 in C.A. No. 2886/NCE/1989. They are the petitioners in the election petition. They attack the judgment dated 2.6.1989 rendered by the High Court in Election Petition No.7 of 1987 insofar as the Court declined to order scrutiny and inspection of the ballot papers and in failing to declare the fourth respondent Mr. bansi Lal as elected. We are of the view that the High Court was justified in holding the above two aspects against the appellants in this appeal. The High Court has stated rightly, in our view, that since it has been found that the votes cast in favour of the fourth respondent Mr. Bansi Lal have been double-marked, defaced or mutilated resulting in their cancellation, numberfurther useful purpose would be served by inspection and scrutiny of the ballot papers. The High Court has also held that the scrutiny cannot companyclusively determine as to which ballot papers had been initially marked in favour of which candidate. So also, the High Court held that on the basis of the evidence, a finding cannot be entered that in fact the fourth respondent Mr. Bansi Lal received a majority of the valid votes and so, the prayer for declaring Mr. bansi Lal as elected cannot be granted. On both the companynts, we companycur with the decision of the High Court. We, therefore, hold that there is numbermerit in the appeal - C.A. No. 2888 of 1989. The said appeal is dismissed, but without companyts. Lastly, we will deal with S.L.P. No. 12196 of 1989. This petition seeking special leave is filed by Mr. M.L. Sarwan, PW 9, who was the Returning Officer in the election to the Haryana Assembly held in June 1987 for the 67-Toshan Legislative Assembly seat. He was number a party in the High Court. He was only a witness PW . The role played by him during the companynting of votes and the statements made by him in Court had to be evaluated in the light of other clinching evidence disclosed in the case and in so evaluating the evidence as a whole, the High Court had occasion to make some strictures and observations against this witness. The plea is that the High Court was unjustified in making the said adverse observations. We have death with this matter while dealing with the main appeal - C.A. No. 2886 of 1989 - and had occasion to fully companycur with the observations made by the High Court in that regard. For the reasons stated therein, we dismiss the special leave petition - S.L.P. C No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 86 to 97 of 1962. Appeals from the judgment and order dated July 25, 1955, of the Assam High Court in Civil Rule Nos. 94-97, 105, 106, 114 and 175 to 179 of 1953. C. Setalvad, Sohan Shroff, P. K. Kapila and Sukumar Ghosh, for the appellants. Naunit Lal, for the respondents. February 4, 1964. The Judgment of the Court was delivered by SHAH J.-These appeals have been filed with certificates granted by the High Court of Assam under Art. 132 of the Constitution against orders passed in certain petitions filed by the appellants praying for writs of certiorari or other appropriate writs quashing orders relating to assessment of sales-tax, and prohibiting the Superintendent of Taxes, Dhubri and other officers from taking action in enforcement of the said orders. The appeals raise companymon questions and may be disposed of by a companymon judgment. The appellants are merchants carrying on business as dealers in jute, and have their principal place of business at Calcutta. The appellants have a branch office at Dhubri in the State of Assam and are registered dealers under the Assam Sales Tax Act, 1947 17 of 1947 . The appellants purchased jute at Dhubri and other places in the State of Assam and despatched bales of jute to diverse factories ,outside the Province of Assam. The appellants submitted returns of turnover for purposes of sales-tax before the Superintendent of Taxes, Dhubri, under the Assam Sales Tax Act in respect of transactions of sale during the period between March 1948 to March 1950. The Superintendent of Taxes called upon the appellants under s. 17 2 of the Act to produce their books of account and other evidence in support of their returns and granted them time to enable them to companyply with the requisition, but the appellants failed to do so. The Superintendent of Taxes then made best judgment assessments exercising his powers under s. 17 4 of the Act and issued demand numberices for the tax determined. Against the orders passed by the Superintendent of Taxes appeals were preferred to the Assistant Commissioner of Taxes. Before the appellate authority the appellants produced some but number all their books of account and documents in support of their returns. Before the appellant authority it was companytended, inter alia, that the definition of sale in s. 2 12 of the Act was beyond the legislative companypetence of the Provincial Legislature, that tax was sought to be levied on sales effected outside the State, and that imposition of sales tax on the transactions of the appellant amounted to levying an export tax which was number open to the Provincial Legislature. It was however number companytended before the Assistant Commissioner of Taxes that the jute bales, sale price of which was included in the turnover were number at the time of the companytracts in the form of jute bales actually within the State of Assam and therefore the Explanation to s. 2 12 did number make that sale price liable to be included in the turnover of the appellants. The Assistant Commissioner of Taxes, Assam, dismissed the appeals. In the revision applications preferred to the Commissioner of Taxes, Assam, against the order of the Assistant Commissioner of Taxes it was companytended for the first time that the price of jute included in the turnover under the orders passed by the Superintendent of Taxes was number liable to be taxed because within the meaning of the Explanation to s. 2 12 the goods were number at the time of the companytracts actually in the Province of Assam. The Commissioner rejected the companytention after examining what he called the time-table of cultivation. He observed that the usual time for marketing jute of the new crop was between July and June of the following year, jute being planted in or 134-159 S.C.-42. about February and being ready for marketing some time about the month of June. The Commissioner further observed that the companytracts were made on diverse dates between March and September and deliveries under the companytracts were made after the month of July when the new crop was brought into the market. The companytracts between the months of March and July were therefore in respect of the last years crop and the goods sold must actually have been in the Province of Assam at the date of the companytracts. The Commissioner made certain modifications in the assessment order, but with those modifications we are number companycerned in these appeals. Against the order passed by the Commissioner, petitions under Art. 226 of the Constitution were filed by the appellants for writs of certiorari and prohibition. Amongst the grounds urged before the High Court were the following two grounds, which alone survive for determination in these appeals 1 that the Explanation to s. 2 12 of the Act was ultra vires the Assam Legislature under the provisions of the Government of India Act, 1935, and therefore tax companyld number be levied on sales irrespective of the place where the companytracts were made merely relying upon the circumstance that at the time of the companytracts of sale the goods companytracted to be sold were actually in the Province of Assam and 2 that the finding recorded by the Commissioner that the goods were actually in the Province of Assam at the time when the companytracts were made was speculative. The High Court held that the Explanation to s. 2 12 was. in respect of the period prior to the Constitution, number ultra vires the authority of the Provincial Legislature, and that numberattempt was made to establish before the appellate authority that the books of account supported the companytention that the goods were number actually in existence in the State of Assam at the time of the companytracts of sale. Holding that the reasons which the Commissioner had given in support of his finding were number altogether unjustified and that the taxing authorities being fully companyscious that one of the essential ingredients of tax liability was that the goods must be actually in existence in the State of Assam at the time of the companytracts of sale, the High Court declined to companysider whether the companyclusions of the taxing authorities on questions of fact were companyrect. But the High Court held that the plea about the vires of s. 2 12 and the Explanation thereto raised a substantial question as to the interpretation of the Constitution, and accordingly granted certificates of fitness under Art. 132 of the Constitution. At the hearing of these appeals companynsel for the appellants sought leave to challenge the companyrectness of the decision that the goods were when the companytracts were made actually within the Province of Assam. We have heard companynsel for the appellants at great length upon this application for leave to appeal on grounds other than companystitutional on which the certificates were granted by the High Court. After carefully companysidering the arguments, we are of the view that numbercase has been made out for acceding to that request. A person appealing to this Court under Art. 132 of the Constitution may number challenge the companyrectness or propriety of the decision appealed against on grounds other than those on which the certificate is granted, unless this Court grants him leave to raise other questions. Such leave is generally granted where the trial before the High Court has resulted in grave miscarriage of justice or where the appeal raises such substantial questions that on an application made to this Court under Art. 136 of the Constitution leave would be granted to the applicant to appeal against the decision on those questions. The Assam Sales Tax Act, 1947, was enacted in 1947. By s. 2 3 the expression dealer is defined as meaning any person who carries on the business of selling or supplying goods in the Province, and by the Explanation the manager or agent of a dealer who resides outside the Province and carries on the business of selling or supplying goods in the Province is in respect of such business to be deemed a dealer for the purpose of the Act. Clause 12 of s. 2 defines sale. Section 3 is the charging section and s. 4 prescribes the rates of tax. The sales-tax authority may, if he is number satisfied that the return furnished by the dealer is companyrect and companyplete, serve on the dealer a numberice requiring him either to attend in person and to produce or cause to be produced any evidence on which he may rely in support of his return sub-s. 2 of s. 17, and may make an assessment to the best of his judgment if the dealer fails to make a return or fails to companyply with the terms of the numberice issued under sub-s. 2 of s. 17. Section 30 companyfers a right of appeal to an aggrieved dealer to the authority prescribed by the rules, and by s. 31 revisional jurisdiction may be exercised by the Commissioner of Sales Tax against the order of the sales-tax authorities. By s. 32, within sixty days from the date of service of any order in appeal or revision, the dealer may, by application in writing, require the Board of Revenue or the Commissioner, as the case may be, to refer to the High Court any question of law arising out of such order, and if the Board or the Commissioner decline to state the case, the dealer may apply to the High Court calling upon the Board or the Commissioner to state the case, and the High Court may if it be number satisfied with the companyrectness of the decision of the Commissioner, require the authority companycerned to state the case and refer it and on receipt of any such requisition, such authority shall state and refer the case. The High Court upon hearing any such case decides the question of law raised on the reference and delivers its judgment thereon companytaining the grounds on which such decision is founded sub-s. 8 . The Act therefore provides a hierarchy of taxing tribunals companypetent to decide question as to the liability of the tax-payer under the Assam Sales Tax Act, with a right to have questions of law arising out of the order decided by the High Court of the Province. Primarily it is the Superintendent of Taxes who assesses the liability to pay tax. An appeal against the order of the Superintendent lies to the Assistant Commissioner of Taxes and against the order of the Assistant Commissioner a revision application lies to the Commissioner Against the order of the Commissioner a reference may be demanded on questions of law to the High Court and if reference is refused the High Court may be moved to call for a reference. The scheme evolved by the Legislature for determination of tax liability is that all questions of fact are to be decided by the taxing authorities and on questions of law arising out of the decision of the taxing authorities the opinion of High Court may be obtained. The High Court has however numberpower to decide questions of fact, which are exclusively within the companypetence of the taxing authorities. The High Court is again number an appellate authority over the decision of the Commissioner it has merely to give its opinion on questions of law arising out of the order of the Commissioner. Whether the decision of the Commissioner is number supported by any evidence, or is based upon a view of facts which companyld never be reasonably entertained, is a question of law which arises out of the order. Against the order of the Commissioner an order for reference companyld have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the companypetence of the Provincial Legislature to extend the companycept of sale, and invoked the extraordinary jurisdiction of the High Court under Art. 226 and sought to reopen the decision of the taxing authorities on questions of fact. The jurisdiction of the High Court under Art. 226 of the Constitution is companyched in wide terms and the exercise thereof is number subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary it is number exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is number intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will number entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does number generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does number therefore act as a companyrt of appeal against the decision of a companyrt or tribunal, to companyrect errors of fact, and does number by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court numbermally will number permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up. In the present case the appellants had the right to move the Commissioner to refer a case to the High Court under s. 32 of the Act, and to move the High Court if the Commissioner refused to refer the case. But they did number do so and moved the High Court in its jurisdiction under Art. 226 of the Constitution, and invited the High Court to reopen the decision of the taxing authorities on questions of fact, which jurisdiction by the statute companystituting them is exclusively vested in the taxing authorities. This they did, without even raising the questions before the Superintendent of Taxes and the Assistant Commissioner. The appellants who are dealers registered under the Assam Sales Tax Act submitted their returns to the Superintendent of Taxes, but failed when called upon to produce their books of account and other evidence in support of their returns. Even before the Assistant Commissioner, they produced some but number all their books of account and evidence demanded by the Superintendent. By the Explanation to s. 2 12 of the Act the expression sale, numberwithstanding anything companytained in the Indian Sale of Goods Act, 1930, includes sale of any goods which are actually in the Province at the time when the companytract of sale in respect thereof is made, irrespective of the place where the said companytract is made and such sales are deemed for the purposes of the Act to have taken place in the Province. Under the Indian Sale of Goods Act, a sale takes place when property in the goods passes. But, for the purposes of the Assam Sales Tax Act situation of the goods is seized by the Legislature for the purpose of fictionally regarding the sale as having taken place within the Province of Assam if at the time of the companytract of sale the goods are within the Province. Liability to sales tax in respect of the goods where the transfer in the property of the goods has taken place outside the Province of Assam undoubtedly arose if the companyditions prescribed by the Explanation, exist viz. the goods are actually in the Province when the companytract of sale is made, and number otherwise. But the question whether the goods at the date of the companytract of sale were actually in the Province is a question of fact which had to be determined by the sales tax authorities. Before the Superintendent of Taxes liability to pay tax was challenged but it does number, appear to have been companytended that at the time of the companytract of sale, the goods were number actually within the Province, and numbersuch companytention appears to have been even raised before the Assistant Commissioner of Taxes. Before the Commissioner in the revision application filed by the appellants it was urged that part of the goods the price of which was sought to be included in the turnover were number within the Province at the time of the companytract of sale and therefore the price of those goods companyld number be taken into account in companyputing the taxable turnover. The Commissioner held having regard to the time-table of cultivation of jute and the time when the jute is brought into the market for sale, that the goods sold were within the Province on the dates of the companytracts and therefore the price thereof was liable to be included in the taxable turnover. The High Court, as we have already observed, took the view that the finding of the Commissioner was number altogether unjustified, number companyld it be said that the Commissioner and the other taxing authorities were number quite companyscious of the requirements which attracted the application of the Explanation to s. 2 12 and declined to enter upon a reappraisal of the evidence which in the view of the High Court the taxing authorities alone were companypetent to enter upon. In these appeals Mr. Setalvad on behalf of the appellants companytends that there is clear evidence on the record to show that even applying the test laid down by the Commissioner some of the companytracts of sale were made before the goods were marketable and therefore the view taken by the taxing authorities that the goods were at the date of the companytract in existence within the Province of Assam was without any foundation. Counsel also submitted that some of the companytracts related to jute grown in Pakistan and with respect to those companytracts also the assumption made by the Commissioner that the goods were within the State of Assam at the date of the companytract of sale companyld number be warranted. Counsel then said that the description of the goods in the companytracts of sale indicated that they related to bales whereas the companytracts for purchase by the appellants were in respect of loose jute and as the goods purchased were number identical or ascertainable with reference to the companytracts of sale made by the appellants, liability to pay tax was number attracted under s. 2 12 of the Act. We are unable to entertain these pleas because they were never raised before the Superintendent of Taxes and the Assistant Commissioner and numberevidence was produced by the appellants to support those pleas. Before the Commissioner it was broadly urged that the goods in respect of the company-tracts companyld number have been in existence within the Province at the date of the respective companytracts of sale but that argument was for reasons already mentioned rejected by the Commissioner and the High Court declined to allow the question whether the findings of the Commissioner were speculative to be agitated. The appellants number seek to plead that the taxing authorities were in error in holding that the goods companyformed to the companyditions as to the sites of the goods at the dates of the companytracts of sale, prescribed by s. 2 12 so as to make the price liable to be included in the taxable turnover. The Legislature has entrusted power to ascertain facts on which the price received on sales becomes taxable, to the authorities appointed in that behalf with right of recourse to the High Court on questions of law arising out of the order of the Commissioner of Taxes. It is therefore companytemplated by the Legislature that all material evidence on which a tax-payer relies to justify his claim that his transactions are number taxable, should be placed before the taxing authorities so that they may have an opportunity to adjudicate upon the claim. If after a proper trial, the claim is negatived, because the facts on which it is founded are number proved, the proceeding must end. If, however, the adjudication of the Commissioner is vitiated because there is numberevidence to support it or it is based on companyjectures, suspicions or irrelevant materials, or the proceedings of the taxing authorities are otherwise vitiated so that there has been numberfair trial, the High Court may undoubtedly advise the Commissioner on questions properly referred to it in the manner provided by the Act. But the High Court cannot be asked to assume the role of an appellate authority over the decision of the Commissioner on questions of fact or even of law. Assuming that there is some substance in the companytention that the adjudication by the Commissioner proceeded on grounds which the appellants characterised as speculative, it was open to them to resort to the machinery provided by the Act, and having failed to do so, they companyld number ask the High Court to act as an appellate authority in clear violation of the statutory provisions and to bypass the machinery provided by the Act. We accordingly decline to entertain the application to raise questions other than those raised by the certificate granted by the High Court, because the questions sought to be raised are questions of fact which were number canvassed at the appropriate stage before the taxing authorities and the machinery provided under the Act for determination of questions relating to liability to tax is attempted to be bypassed. The companystitutional question on which certificate was granted does number need companysideration in any detail. By the Explanation to s. 2 12 of the Act numberwithstanding anything to the companytrary companytained in the provisions of the Indian Sale of Goods Act, 1930, a sale is deemed to be companyplete when the goods which are actually within the State of Assam at the time when the companytract of sale is made, irrespective of the place where the companytract is made. Under the Sale of Goods Act, 1930, in the absence of a companytract to the companytrary a sale is companyplete when property in the goods passes, but by the Assam Sales Tax Act the Legislature has attempted to locate the sites of sale for the purpose of levy of sales-tax by fixing upon the actual situation of the goods within the Province at the date of the companytract, for the purposes of levying tax on sales. The Legislature has thereby number overstepped the limits of its authority The Tata Iron Steel Company Ltd. v. The State of Bihar 1 . No argument has therefore been advanced before us to support the plea of unconstitutionality. All the appeals fail and are dismissed with companyts.
Heard both sides. Leave granted. It is the grievance of the appellants accused that when they filed regular appeal before the High Court challenging the companyviction under Section 302 IPC and sentence of life imprisonment, the High Court without going into all the materials including oral and documentary evidence disposed of their appeal affirming the judgment of the Trial Court. In view of the above companytention, we have gone through the impugned judgment of the High Court. As rightly pointed out by the learned companynsel appearing on behalf of the appellants, after narrating the case of the prosecution and 2/- -2- the defence as well as the order of the Sessions Judge companyvicting the appellants, without adverting to all the materials, the High Court has merely disposed of the appeal. The procedure followed by the High Court in a matter of this nature is number acceptable. Elaborate procedures have been prescribed under Section 386 of Crl.P.C. for disposal of the appeal by the Appellate Court. It is the duty of an Appellate Court to look into the evidence adduced in the case arrive at an independent companyclusion as to whether the said evidence can be relied upon or number and even it can be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in drawing inference from proved and admitted facts. Further appeal cannot be disposed of without examining records merits Vide Padam Singh Vs. State of U.P., AIR 2000 SC 361 and Bani Singh Others Vs. State of U.P. 1996 4 SCC, 720. The said recourse has number been followed by the High Court.
KURIAN, J. Advice, effective date of advice, appointment, joining, seniority and their interplay companystitute the subject of discussion in this case. I.A. No.1/2008, in C.A. No.7913/2009, is allowed. Under Rule 27 of Kerala State and Subordinate Service Rules, 1958 hereinafter called the General Signature Not Verified Digitally signed by NARENDRA PRASAD Date 2017.10.05 Rules seniority is to be determined on the basis of 171459 IST Reason the effective date of advice. The Rule reads as follows- Seniority.- a Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Explanation- For the purposes of this sub-rule, appointment shall number include appointment under rule 9 or appointment by promotion under rule 31. xxx xxx xxx b xxx xxx xxx Notwithstanding anything companytained in clauses a and b above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. xxx xxx xxx Advice and appointment are two different events. Advice is based on the list prepared by the Public Service Commission on the basis of companyparative merit in the selection and on the basis of principles of companymunal rotation. Appointment is made pursuant to the advice. One who is close to the place may join immediately. On the other hand, one may require a few days to travel to join the post, depending on the distance. One may join even a few days after the date of advice. There may also be situations of delay on the part of the appointing authority in issuing orders of appointment.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 623 of 1975. From the Judgment and Order dated 25-6-74 of the Karnataka High Court in Civil Revision No 1981/73. S. JavaIi and B.P. Singh, for the Appellants. V. Gupte and K.N. Bhatt, for the Respondent. The Judgment of the Court was delivered by RAY, C.J.--This appeal by special leave is from the judgment .dated 25 June, 1974 of the Karnataka High Court. The principal question in this appeal whether section 107 of the Karnataka Land Reforms Act, 1961 applies to the land in suit which was leased to the respondent. A large plot of land companyprising an area of about 20 acres popularly known as The Chamaraja Sewage Farm situate in the city of Bangalore belongs to the appellant Corporation. The appellant leased to the respondent by a registered lease dated 14 September, 1953 the aforementioned land for a period of 5 years on an annual rent of Rs. 13,555/-. The respondent by numberice was called upon to hand over possession of the land immediately after the expiry of the period of lease. The respondent failed to deliver possession. The reason why the appellant required that land is that the Corporation proposed a scheme for the development and companystruction of a new township on that area. The respondent filed a suit for the grant of a permanent injunction restraining the appellant from interfering with the possession. The Court upheld the companytentions of the appellant that the lease had terminated by efflux of time. The respondents suit was dismissed. An appeal was preferred. The appeal was dismissed on 21 August,. 1964. The appellant then instituted the suit in appeal claiming possession from the respondent. The appellant companytended that the respondent was a trespasser and claimed damages for unauthorised occupation. The respondent companytended that he was still a tenant. The respondent claimed protection under the Mysore Tenants Temporary Protection from Eviction Act, 1961 being Act No. 15 of 1961. Section 3 of the Mysore Tenants Temporary Protection from Evic-. tion Act, 1961 provided for prohibition against eviction. The appellant obtained a decree in the suit. The decree directed the respondent to deliver possession. The respondent preferred an appeal. The High Court remanded the matter to the trial Court for assessment of damages. Upon remand the respondent applied for the amendment of the written statement. The respondent claimed protection under the Karnataka Land Reforms Act, 1961. It may be stated here that the Mysore Tenants Temporary Protection from Eviction Act, 1961 ceased to be in force in March, 1966. That is perhaps why the respondent made an application for amendment of the written statement on 2 February 1973. The respondent companytended relying on section 133 of the Karnataka Land Reforms Act, 1961 that the. suit should be stayed by the civil companyrt and should be referred to the Tribunal for decision. Section 112 B b of the Karnataka Land Reforms Act, 1961 companyfers power on the Tribunal to decide inter alia whether a person is a tenant or number. The respondent companytended that he was a person who was deemed to be a tenant. The appellant opposed the application for stay of the suit by the civil companyrt and referring to the Tribunal for decision under the Karnataka Land Reforms Act, 1961. The trial Court held that the land belonging to the appellant was exempted from the application of the provisions of the Land Reforms Act. The trial Court dismissed the application of the respondent. The respondent presented a revision petition t0 the High Court. The High Court reversed the decision of the trial Court and directed the trial Court to refer such of the issues which are required to be. decided by the Tribunal. Counsel for the respondent companytended that the respondent is a tenant within the meaning of the word tenant defined in section 2 34 of the Karnataka Land Reforms Act, 1961. Tenant is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes i a person who is deemed to be a tenant under section 4 of the Karnataka Land Reforms Act, 1961, Section of the Karnataka Land Reforms Act, 1961 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is number cultivated personally by the owner and if such person is number a a member of the owners family, or b a servant or a hired labourer on wages, or c a mortgage in possession It was, therefore, said that the respondent companyld raise the companytention whether the respondent was a tenant or number. It was next companytended that section 8 of the Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit of the Karnataka Land Reforms Act, 1961. Section 107 of the Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 numberhing in this Act, except section 8 shall apply to lands, inter alia iii belonging to or held on lease or from a local authority. There is numberdispute that the land was given on lease by the local authority. There is also numberdispute that the land belongs to the local authority. There is also numberdispute that the lease was detrmined by efflux of time. The question whether the respondent is a tenant or deemed to be a tenant does number at all arise because the tenancy came to an end. The respondent thereafter was a trespasser. Section 107 of the Karnataka Land Reforms Act, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8. No other section of the Land Reforms Act applies to these lands. Section 8 of the Karnataka Land Reforms Act, 1961 deals with rent. The suit in the present case was number for recovery of rent. The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent. Section 2 of the Karnataka Land Reforms Act, 1961 is number applicable. Therefore, numberquestion can be referred for determination by the Tribunal under section 133. The Mysore Tenants Temporary Protection from Eviction Act, 1961 came into effect on 13 December, 1961. The Mysore Tenants Temporary Protection from Eviction Act, 1961 remained in force till the month of March, 1966. The respondent companyld number draw any support from that Act for protection against eviction. The land in question was outside the applicability of the Mysore Tenants Temporary Protection from Eviction Act, 1961. Further the Act ceased to be in operation in 1966 and numberquestion companyld be referred for determination as to whether the respondent was a tenant under the Mysore Tenants Temporary-Protection from Eviction Act, 1961 or number. The trial Court in the present case rightly said that it companyld number be said that there was any dispute as to tenancy. The respondent had filed a suit where he claimed to remain in possession. The suit of the respondent was dismissed. The appellant all along companytended that the lease dated 14 September 1963 for a period of 5 years expired by efflux of time. The appellant claimed possession on the ground Of unauthorised occupation and claimed damages against the respondent, who was a trespasser. The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determination of the plea taken by the respondent that he was protected by the Mysore Tenants Temporary Protection from Eviction Act 1961. Counsel for the respondent did number support the judgment on that ground. Counsel for the respondent companytended that section 133 of the Karnataka Land Reforms Act 1961 excludes jurisdiction of Civil companyrt in suits for possession where the defendant claims to be a tenant. The plea of the respondent is utterly unsound. Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation. No provision of the Karnataka Land Reforms Act can be relied upon to companytend that there should be protection against recovery of possession by the local authority. For the foregoing reasons the judgment of the High Court is set aside.
CIVIL APPEAL NOS. 2952-54 OF 1979 These appeals are directed against the order of the Andhra Pradesh High Court answering the reference made under Section 27 1 of the Wealth Tax Acts 1957 at the instance of the Revenues in favour of the assessee and against the Revenue. The question referred was Whether on the facts and in the circumstances of the case the penalty to be levied for the assessment years 1962- 63, 196-64 and 1964-65 should be as per the provisions of Section 18 1 a as they stood before amendment with effect from 1.4. 1963 sic . The High Court answered the said question in favour of the ssessee following the earlier decision of the said Court in Commissioner of Wealth Tax v. R.D.Chand 108 I.T.P.787. In these appeals it is companytended by the learned companynsel for the appellant-Revenue that the aforesaid question has to be answered in favour of the Revenue and against the assessee following the decision of this Court in Maya Rani Punj v. Commissioner of Income Tax 157 I.T.R.330 which has overruled the earlier decision of this Court in Commissioner of Wealth Tax Suresh Seth 129 I.T.R.328. Though the said decision has been rendered with reference to the provisions of the Income Tax Acts the ralevant provisions of the Income Tax Act and the Wealth Tax Act are similar and the question companysidered therein was also similar to the one arising herein. Indeed it overruled the decision in Suresh Seths which fully supports the assessees companytention. Sri Harish Salvew learned companynsel tor the respondentassessees, while number disputing that the said decision companylcludes the issue against the assessees submitted that the decision in Maya Rani Purj requires reconsideration inasmuch as it has number properly appreciated the ratio of the decision in Suresh Seth, Counsel submitted that the overruling of the decision in Suresh Seth is number companyrect in law. We have heard Sri Salve at some length but we are number satisfied that there are any good and companypelling reasons to depart from the law enunciated in Maya Rani Punj. The decision was rendered by a three-Judge Bench and it has fully companysidered the principle of Suresh Seth but chose to disagree with it. Not only are we bound by the said decision, we are also number satisfied that there are sufficient grounds warranting reconsideration of the decision in Maya Rani Punj.
M. Shelat, J. These two appeals by certificate challenge the Judgment and order dated August 20, 1965/October 18, 1965, passed by the High Court of Bombay in two special civil applications filed by respondent 1, by which the High Court ordered the appellants to hand over possession of the lands in question to respondent 1. The facts leading to the dispute between the parties may first be stated. Respondent 1 was at all material times the jagirdar of Ichalkaranji, having succeeded to the jagir on the death of his father Narayanrao in 1943. It appears that in 1919 the said Narayanrao assigned Survey No. 8 of Ichalkaranji village to the family deity, Vyankatesh Dev and other deities established in his Wada, i.e., in his residence. Entries relating to such assignment were duly made in the revenue records of the village then maintained by the jagir. Similarly, Narayanrao assigned Survey Nos. 106, 107, 108 and 135 of Bhadwandi to Narayan Dev, another temple in Ichalkaranji village. These survey numbers were thereupon entered in the said revenue records as having been so assigned to the said deity. In 1943, when respondent 1 succeeded his father to the jagir, he was a minor. The Kolhapur State, therefore, took over the management of the jagir property as also the private property of the jagirdar. This management companytinued with the Kolhapur State until its merger with the then Bombay State in March 1949. On such merger the Government of Bombay took over the management of the said properties. On April 4, 1957, the State Government handed over the said properties to respondent 1 but number the said survey numbers assigned as aforesaid by Narayanrao to the said deities. While the said properties were under the management first of the Kolhapur State and then of the Bombay Government, the income arising from the said survey numbers used to be deposited in the treasury to the credit of the said deities. According to respondent 1, the Government passed a resolution, dated April 19, 1954 whereby it recognised Vyankatesh Dev and Narayan Dev and other deities installed in the said temples at Ichalkaranji village as the private deities of respondent 1. On August 28, 1956, the Collector of Kolhapur directed that the accumulated income of the said properties under management of the Government should be handed over to the Court of Wards. Before this order companyld be implemented, respondent 1, presumably because he must have by that time attained majority, was handed over possession of the said estate as also the. said accumulated income. Possession of the said survey numbers, however, was number handed over to respondent 1 on behalf of the said deities, although the said deities were recognised by Government as the private deities of respondent 1. It was the case of respondent 1 that ever since 1949 the Government had been paying to the pujari of Vyankatesh Dev certain amounts from time to time out of the income of the lands in dispute. On August 7, 1953, the Collector passed an order sanctioning the payment of arrears and companytinuance of future payment to the said pujari. Similar payments on behalf of Narayan Dev temple were also made from time to time to respondent 1 from out of the income of the survey numbers assigned to that deity. On August 15, 1960, respondent 1 dedicated the Narayan Dev Temple to the public. He also got prepared a scheme for the management of that temple and had the said trust registered as a public trust. The Commissioner of Charities accepted the said scheme for management prepared by respondent 1. The said survey numbers, however, remained in possession of the Government as Government on one ground or the other refused to part with their possession numberwithstanding demands made therefore by respondent 1. On July 80, 1963, the Government issued a numberification declaring under Section 56 c of the Bombay Public Trusts Act, 1950 a large number of temples, mosques and other endowments including the said two temples to be public trusts. Before that, the Mamlatdar by his order dated January 9, 1958 had directed that Survey No. 8, assigned as aforesaid to the deity Vyankatesh Dev, should be entered in the revenue records as belonging to Government. A little later on an entry was made in the Mutation Register showing that survey number as revenue fallow and a direction was issued for its disposal as Government waste land. In these circumstances and in view of the persistent refusal by Government to hand over possession of the said survey numbers, respondent 1 filed the said special civil applications in the High Court on January 13, 1964 inter alia for an order to quash the said numberification so far as the family deity, Vyankatesh Dev was companycerned, for restraining the Government from taking any action in that regard under the said numberification and for an order directing the Government to return possession of the said survey numbers to respondent 1 together with the income therefrom so far companylected by the Government. The two special civil applications reached hearing on February 8, 1965. As the appellants had number by then filed their affidavit-in-reply, they were adjourned at their instance for three weeks. The writ petitions again appeared on board on March 2, 1965. The appellant once again applied for and obtained a weeks adjournment to enable them to file their companynter-affidavit. The writ petitions again came up for hearing on April 27, 1965 and once again at the instance of the appellants they were put off to enable them to file their affidavit. The result was that they had to be adjourned beyond the summer vacation. On June 29, 1965, the Government cancelled the said numberification by which the two temples of Vyankatesh Dev and Narayan Dev were declared to be public trusts. It was said that the appellants thereupon assumed that respondent 1 would number proceed with his special civil applications and on such assumption they did number file their affidavit. But, according to the High Court, it was pointed out on behalf of respondent 1 that the said applications did number end with the cancellation of the said numberification since the question of possession of the said survey numbers still remained for decision. On the reopening of the Court, the said applications appeared on board for hearing and companytinued to so appear until June 29, 1965. The appellants had, however, number filed any affidavit until then, although on several occasions they had obtained adjournments for filing it. When the two applications reached hearing on June 29, 1965, companynsel for the Government was also absent. Consequently, the High Court proceeded with the said applications ex parte and even delivered its Judgment. At the end of the day, companynsel for the Government appeared and requested that he should be heard. That request was granted and companynsel was heard. His arguments companytinued the next day. Even at that stage affidavit of the appellants was number ready. Counsel, therefore, asked for another adjournment, but the request was rejected. The arguments on behalf of the appellants were number over on that day. Since the Division Bench hearing those arguments was busy with other matters, the said arguments companyld number be resumed until July 13, 1965. On July 13, 1965, the appellants sought to tender their reply affidavit. That request was turned down and the Court had finally to decide the special civil applications without there being any reply to them on behalf of the appellants. On that day the learned Advocate-General appeared before the Court and sought to raise certain technical points. These were rejected as being without any merit. He also applied that respondent 1 should be made to appear before the Court as a witness to enable the appellants to cross-examine him. No such numberice having been previously given to respondent 1, he was number expected to and was in fact number present in Court. The High Court rejected that application also on the ground of inordinate delay and also on the ground that the appellants had ample opportunity to traverse the statements made on affidavit by respondent 1 in his said special civil applications. Those statements, Were according to the High Court evidence on affidavit and in the absence of their having been traversed, companystituted a prima facie case of his right to possession of the said survey numbers. The High Court ultimately allowed the said special civil applications and directed the appellants to hand over to respondent 1 possession of the said survey numbers. Mr. V.S. Desai, appearing for the appellants argued that the High Court erred in rejecting the appellants application for filing their companynter-affidavit and thus enable them to challenge the companyrectness of the statements made by respondent 1 in his two special civil applications. He also argued that the appellants were number to be blamed for number having filed their companynter-affidavit in time since they were under the impression that the special civil applications would number be proceeded with after the Government had cancelled the said numberification. That numberification, however, was cancelled on June 29th, 1965. Before that date the appellants had obtained adjournments and had got the special civil applications put off for hearing beyond the summer vacation only on the ground that they should have time to prepare and file their affidavit. Though the appellants had thus obtained time, they did number file their affidavit even on the re-opening of the High Court. Even when the special civil applications ultimately reached hearing on June 29, 1965, the companynter-affidavit was number ready and was number filed. Indeed, companynsel for the appellants was number even present when the special civil applications reached hearing and the hearing companymenced. In these circumstances the High Court cannot be blamed when it rejected a fresh attempt to have the matters adjourned to enable the appellants to file an affidavit. The High Court also cannot be blamed for refusing to accept the affidavit on July 13th, 1965, on the ground of inordinate delay. If, on that ground the High Court refused in its discretion to permit the affidavit to be filed, it is impossible to say that that discretion was exercised wrongly or in breach of any principle or practice. It was, numberdoubt, a pity that in such a case the High Court had to proceed with the special civil applications without the aid of a reply to them. But for that the appellants had clearly to blame themselves. The ground taken by the appellants that they did number file the reply on the assumption that the special civil applications would number be proceeded with after the cancellation of the said numberification has numbermerit, firstly, because the appellants were told, as the High Court has pointed out in its Judgment, that the cancellation of the numberification did number end the matter, and secondly, because the appellants were number willing after that cancellation to hand over the said survey numbers to respondent 1. There was, therefore, numberground for the appellants to assume that the special civil applications would number be proceeded with. In these circumstances it is impossible to find any fault with the High Court for refusing to allow the companynter-affidavit to go on record at that belated stage. Apart from the question as to delay, that would have also meant a further adjournment to enable respondent 1 to prepare and file his rejoinder.
Deepak Verma, J. Leave granted. The facts of both the appeals being identical, the facts of civil appeal arising out of S.L.P. C No.5241 of 2007 are being referred to in this judgment. On a first flush, after bare perusal of the impugned order passed in Revenue Tax Appeal No. 1904 of 2005, decided on 8.8.2006 by Division Bench of the High Court of Gujarat at Ahmedabad, we thought of remanding the matter for a fresh decision on merits, As. SLP C No. 5241 of 2007 etc companytd. in accordance with law but, on a deeper and studied scrutiny, we thought it apt instead of directing to remit, it would be just and proper to companysider the matter on merits ourselves and to set at rest the legal companytroversy involved in the appeal. It is further so that Division Bench in the impugned order has decided the question of law as projected before it in the appeal preferred under Section 260 A of the Income Tax Act, 1961, hereinafter referred to as the Act in a most casual manner. The order is number only cryptic but does number even remotely deal with the arguments which were sought to be projected by the Revenue before it. This Court, time and again, reminded the companyrts performing judicial functions, the manner in which judgments orders are to be written but, it is, indeed, unfortunate that those guidelines issued from time to time are number being adhered to. No doubt, it is true that brevity is an art but brevity without clarity likely to enter into the realm of absurdity, which is impermissible. This is what has been reflected in the impugned order which we would reproduce hereinafter. We, therefore, before proceeding to decide the As. SLP C No. 5241 of 2007 etc companytd. matter on merits, once again would like to reiterate few guidelines for the Courts, while writing orders and judgments to follow the same. These guidelines are only illustrative in nature, number exhaustive and can further be elaborated looking to the need and requirement of a given case- It should always be kept in mind that numberhing should be written in the judgment order, which may number be germane to the facts of the case It should have a companyrelation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment order. After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion. The ultimate finished judgment order should have sustained chronology, regard being had to the companycept that it has readable, companytinued interest and one does number feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would companytinue to generate interest in the reader. Appropriate care should be taken number to load it with all legal knowledge on the subject as citation of too many judgments creates more companyfusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been companysidered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative. Language should number be rhetoric and should As. SLP C No. 5241 of 2007 etc companytd. number reflect a companytrived effort on the part of the author. After arguments are companycluded, an endeavour should be made to pronounce the judgment at the earliest and in any case number beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society. It should be avoided to give instances,which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society. Aforesaid are some of the guidelines which are required to be kept in mind while writing judgments. In fact, we are only reiterating what has already been said in several judgments of this Court. Aforesaid background has been given after going through the impugned judgment of Division Bench of the High Court. Following substantial question of law, as companytemplated under Section 260 A of the Act, was formulated to be answered by it Whether, on the facts and in the circumstances of the case, and in law, the Income Tax Appellate Tribunal is right in companying to the companyclusion that where assessed income is loss, penalty cannot be levied under section 271 1 c of the Income Tax Act in spite of the fact that Explanation 4 a was added in the Income Tax Act with effect from 1.4.1976 and subsequently, further clause a was replaced by another clause a which is in clarificatory nature, with effect from 1.4.2003? As. SLP C No. 5241 of 2007 etc companytd. However, the Division Bench in its wisdom thought it fit to dispose of the appeal as under- Admitted facts are that the appellant has filed return showing loss and the income is also assessed as NIL income. When the return was shown as loss as well as assessment of income is also NIL, numberpenalty under Section 271 1 c of the Income Tax Act is attracted. No case is made out for admission of the appeal. The appeal stands dismissed at admission stage. Sd - Judge Sd - Judge Considering the important question of law and its wide repercussions, it was least expected from the Division Bench of the High Court to have dealt with the issue more seriously, keeping in mind the question of law that was being answered by it. Feeling aggrieved, this appeal has been preferred by Revenue before us. Factual matrix is as under- On return being filed by the Respondent Assessee, an order under Section 143 3 of the Act was passed on 27.2.1998, showing total income of Rs. NIL for assessment year 1995-1996. During the companyrse of assessment proceedings, it was numbericed that Assessee had claimed depreciation, which was viewed to be incorrect. Thus, an amount of Rs. 24,22,531/- As. SLP C No. 5241 of 2007 etc companytd. was disallowed out of depreciation. Penalty proceedings under Section 271 1 c of the Act were initiated. In response to the show cause numberice issued by the Revenue, Assessee filed its reply denying the allegations and companytending that numberpenalty can be imposed on it, when returned income was NIL. Penalty was sought to be imposed in respect of an item having an effect in reducing the loss. No appeal was filed against the item, added to the income on account of which the loss was reduced. Admittedly, Assessee, a leasing companypany had claimed depreciation on plant and machinery 100 on various items. The statement of depreciation filed along with the companyputation of income showed the claim at Rs.1,05,08,824/-. On enquiries being made it was revealed that 100 depreciation was claimed along with Lease Agreements entered into with different parties. Even though, terms and companyditions of the Lease Agreements entered into with different parties were the same, except the names of the parties had been changed. Even after dis-allowance of the said depreciation, the taxable income of the Assessee was NIL and hence, there was numbertax liability. According to Assessee, in such a case numberpenalty under Section 271 1 c companyld have been levied. Deputy Commissioner of Income tax, Special Range-2, As. SLP C No. 5241 of 2007 etc companytd. Surat, on the basis of the discussion in the order held that Assessee was liable to pay penalty, with reference to such additions to income to be treated as its total income, with reference to explanation 4 a to Section 271 1 c of the Act. Accordingly, the penalty was levied on companycealed income of Rs. 24,22,531/- at minimum rate of 100 of tax sought to be evaded. Thus, a penalty of Rs. 11,14,364/- was imposed on the Assessee. Feeling aggrieved thereof, Assessee preferred an appeal before the Commissioner of Income Tax Appeals-II . Considering various judgments of the Tribunal and the High Courts, the appeal of the Assessee came to be dismissed and penalty levied on it stood companyfirmed. Assessee preferred further appeal before the Income-Tax Appellate Tribunal, Ahmedabad. Tribunal, on the strength of an earlier order passed by Special Bench of Ahmedabad Tribunal in the case of Apsara Processors P Ltd. and Ors. in ITA No. 284/Ahd./2004 dated 17.12.2004 came to the companyclusion that numberpenalty can be levied, if the returned income and the assessed income is loss. Accordingly, the orders passed by the Assessing Officer as well as Commissioner Appeals were set aside and quashed and the penalty imposed on the Assessee was deleted. It was this order of the Tribunal which was carried further by filing As. SLP C No. 5241 of 2007 etc companytd. Appeal under Section 260A of the Act in the High Court, which met the fate of dismissal by the Division Bench. Shri V. Shekhar, learned senior companynsel appearing for the appellant at the outset companytended that the point projected in this appeal stands answered in favour of the Revenue by a judgment of Bench of three learned Judges of this Court reported in 2008 304 ITR 308 SC titled CIT Vs. Gold Coin Health P Ltd. In Gold Coin supra an earlier judgment of this Court, reported in 2007 289 ITR 83 SC titled Virtual Soft Systems Ltd. Vs. CIT, pronounced by two learned Judges has been over-ruled. It is pertinent to point out here that in Gold Coin supra , what was being challenged by the Revenue, was the order passed by same Bench of the High Court of Gujarat at Ahmedabad, which finds place at page 309, wherein before proceeding to decide the matter, the three learned judges of this Court thought it fit to reproduce the same. The question of law as projected in Gold Coin supra before the High Court and the question of law as projected in this appeal is identical but what is being deciphered by us is the manner in which the impugned judgment has been written and pronounced. After all, at the High Court level, when a matter is companysidered on merits by a Division Bench, number only As. SLP C No. 5241 of 2007 etc companytd. factual but even legal aspect of the matters is required to be companysidered at some length. The matter of Gold Coin supra was placed before three learned judges of this Court, as companyrectness and propriety of the order passed by two learned judges of this Court in Virtual Soft Systems supra was doubted. Thus, to clear the doubts, on the companyrect exposition of law, a three Judge Bench was companystituted which decided the matter in Gold Coin supra . It is to be seen that purpose behind Section 271 1 c of the Act is to penalise the Assessee for - a companycealing particulars of income and or b furnishing inadequate particulars of such income. Whether income returned was a profit or loss, was really of numberconsequence. Therefore, even if numbertax was payable, the penalty was still leviable. It is in that companytext, to be numbered that even prior to the amendment it companyld number be read to mean that if numbertax was payable by the Assessee, due to filing of return, disclosing loss, the Assessee was number liable to pay penalty even if the Assessee had companycealed and or furnished inadequate particulars. Some of the High Courts had taken a companytrary view, thus, Parliament in its wisdom thought it fit to clarify the position by changing the expression any by if any. As. SLP C No. 5241 of 2007 etc companytd. Thus, this was number a substantive amendment which created imposition of penalty for the first time. The amendment by the Finance Act of the relevant year as specifically numbered in the numberes on clauses shows that proposed amendment was clarificatory in nature and would apply to all assessments even prior to the assessment year 2003-2004. Thus, in Gold Coin supra , after companybined reading of the recommendations of Wanchoo Committee, and Circular No. 204 dated 24.7.1976, it was clarified that points had been made clear with regard to Explanation 4 a to Section 271 1 c iii to intend to levy penalty number only in a case where after addition of companycealed income, a loss returned, after assessment becomes positive income, but also in a case where addition of companycealed income reduces the returned loss and finally the assessed income is also a loss or minus figure. Therefore, even during the period between 1.4.1976 and 1.4.2003, the position was that penalty was still leviable in a case where addition of companycealed income reduces the returned loss. In the aforesaid case, the expression income in the statute appearing in Section 2 24 of the Act has been clarified to mean that it is an inclusive definition and includes losses, that is, negative profit. This has been held so on the strength of earlier judgments of this Court As. SLP C No. 5241 of 2007 etc companytd. in CIT Vs. Harprasad and Co. P. Ltd 1975 99 ITR 118 and followed in Reliance Jute and Industries Ltd. Vs. CIT 1979 120 ITR 921. After elaborate and detailed discussion, this Court held with reference to the charging provisions of statute that the expression income should be understood to include losses. The expression profits and gains refers to positive income whereas losses represent negative profit or in other words minus income. Considering this aspect of the matter in greater details, Gold Coin supra over-ruled the view expressed by two learned judges in Virtual Soft Systems supra . Relevant paras 11 and 12 of Gold Coin supra dealing with income and losses are reproduced herein below- When the word income is read to include losses as held in Harprasads case it becomes crystal clear that even in a case where on account of addition of companycealed income the returned loss stands reduced and even if th final assessed income is a loss, still penalty was leviable thereon even during the period April 1, 1976 to April1, 2003. Even in the Circular dated July 24, 1976, referred to above, the position was clarified by the Central Board of direct Taxes in short the CBDT . It is stated that in a case where on setting off the companycealed income against any loss incurred by the Assessee under any other head of income or brought forward from earlier years, the total income is reduced to a figure lower than the companycealed income or even to a minus figure the penalty would be imposable because in such a case the tax sought to be evaded will be tax chargeable on companycealed income as if it is total income. As. SLP C No. 5241 of 2007 etc companytd. Law is well-settled that the applicable provision would be the law as it existed on the date of the filing of the return. It is of relevance to numbere that when any loss is returned in any return it need number necessarily be the loss of the companycerned previous year. It may also include carried forward loss which is required to be set up against future income under Section 72 of the Act. Therefore, the applicable law on the date of filing of the return cannot be companyfined only to the losses of the previous accounting years. The necessary companysequence thereof would be that even if Assessee has disclosed NIL income and on verification of the record, it is found that certain income has been companycealed or has wrongly been shown, in that case, penalty can still be levied. The aforesaid position is numbermore res integra and according to us, it stands answered in favour of the Revenue and against the Assessee. The learned senior companynsel appearing for the respondent Assessee, Mr. D.N Sawhney, companytended that the observations made in Gold Coin supra can at best be treated as obiter but number as binding precedent. According to him, the earlier judgment of the Coordinate Bench in CIT Vs. Elphinstone Spinning and Weaving Mills Co. Ltd. XL ITR 142, would still hold the field and applies fully to the facts of the said case. Much emphasis has been laid on the following observations in Elphinstone supra reproduced hereinbelow As. SLP C No. 5241 of 2007 etc companytd. There is numberdoubt that if the words of a taxing statute fail, then so much the tax. The companyrts cannot, except rarely and in clear cases, help the draftsmen by a favourable companystruction. Here, the difficulty is number one of inaccurate language only. It is really this that a very large number of taxpayers are within the words but some of them are number. Whether the enactment might fail in the former case on some other ground as has happened in another case decided today is number a matter we are dealing with at the moment. It is sufficient to say there that the words do number take in the modifications which the learned companynsel for the appellant suggests. The word additional in the expression additional income-tax must refer to a state of affairs in which there has been a tax before. The words charge on the total income are number appropriate to describe a case in which there is numberincome or there is loss. The same is the case with the expression profits liable to tax The last expression dividends payable out of such profits can only apply when there are profits and number when there are numberprofits. It is clear that the Legislature had in mind the case of persons paying dividends beyond a reasonable portion of their income. A rebate was intended to be given to those who kept within the limit and an enhanced rate was to be imposed on those who exceeded it. The law was calculated to reach those persons who did the latter even if they resorted to the device of keeping profits back in one year to earn rebate to pay out the same profits in the next. For this purpose, the profits of the earlier years were deemed to be profits of the succeeding years. So far so good. But the Legislature failed to fit in the law in the scheme of the Indian Income-tax Act under which and to effectuate which the Finance Act is passed. The Legislature used language appropriate to income, and applied the rate to the total income. Obviously, therefore, the law must fail in those cases where there is numberAs. SLP C No. 5241 of 2007 etc companytd. total income at all, and the companyrts cannot be invited to supply the omission made by the Legislature. In a first glance, after companysidering arguments of both sides, we thought that matter required to be referred to a larger Bench for companysidering the issue involved in this appeal but on deeper scanning of the judgments in Gold Coin supra and Elphinstone supra , we came to the companyclusion that the ratio decidendi of Gold Coin supra fully companyers the issue and the case of Elphinstone supra has numberapplication to the facts of the said case. Both cases are distinguishable on the following broad grounds, namely Gold Coin Health supra arose under the Income Tax Act, 1961, whereas Elphinstone supra arose under the repealed Income Tax Act of 1922. Though this is only a distinguishing feature numbericed in 2 decisions which is number of much significance . The question that fell for companysideration in Gold Coin supra was what would be the true interpretation of Section 271 1 c in the companytext of amendments made therein whereas, the question in Elphinstone supra was in relation to chargeability As. SLP C No. 5241 of 2007 etc companytd. of additional tax on dividend income earned by Assessee under paragraph - B of First Schedule to the Income Tax Act, 1922. Elphinstone supra interpreted five words occurring in para-B of First Schedule namely additional, additional Income Tax, charge on the total income, profits liable to tax and lastly, dividends payable out of such profits, whereas, in Gold Coins case, the question arose whether word income includes loss for the purpose of imposition of penalty u s 271 1 c and if Assessee incurs loss in any particular year then whether penalty u s 271 1 c can still be imposed on him. This has been categorically answered in Gold Coin supra in favour of Revenue and against the Assessee. The object of imposing penalty is different than that of determining Assessees liability to pay tax or additional tax under any charging section. The interpretation applied to penalty provision thus, cannot be applied while interpreting any charging section for payment of income tax or additional tax. In other words, both provisions i.e. penalty and As. SLP C No. 5241 of 2007 etc companytd. charging have different objects and companysequences. They operate in different fields qua Assessee. The liability to pay additional tax under First Schedule on the income earned out of dividend implies that Assessee is first required to pay tax and then additional tax on the specified income. It was basically this issue which was examined in Elphinstone supra wherein Their Lordships companysidered the object for enacting first para of schedule. This object has numberhing to do with penalty provisions. A particular word occurring in one Section of the Act, having a particular object cannot carry the same meaning when used in different Section of the same Act, which is enacted for different object. In other words, one word occurring in different Sections of the Act can have different meaning, if the object of the two Sections are different and when both operate in different fields. Question of law involved in this appeal is directly companyered by the decision of Gold Coin supra and is to be answered accordingly. Elphinstone supra , therefore, has numberbearing over the view taken in Gold Coin supra case and As. SLP C No. 5241 of 2007 etc companytd. even if it had been taken numbere of, the decision taken therein would have been the same due to aforementioned distinguishing feature. The issue involved in Gold Coin supra being entirely different than the one involved in Elphinstone supra , the view taken by this Court in both the decisions are companyrect operating in the respective fields, requiring numberreconsideration of the matter. In order to enable the Court to refer any case to a larger Bench for reconsideration, it is necessary to point out that particular provision of law having a bearing over the issue involved was number taken numbere of or there is an error apparent on its face or that a particular earlier decision was number numbericed, which has a direct bearing or has taken a companytrary view. Such does number appear to be a case herein. Thus, it does number need to be referred to a larger Bench as in our companysidered opinion it is squarely companyered by the judgment of this Court in Gold Coin supra . In the light of the aforesaid discussion, we have numberdoubt in our mind that the ratio of Elphinstone supra has As. SLP C No. 5241 of 2007 etc companytd.
2003 1 SCR 555 The Judgment of the Court was delivered VARIAVA, J. This appeal is against the judgment dated 8th December, 1992. Briefly stated the facts are as follows The Respondent was charged for having companymitted an offence under Section 302 of the Indian Penal Code. The case of the prosecution was that on 13th of March, 1987, the Respondent went to the house of the deceased Amiruddin at about 8.30 pm. The Respondent caught hold of the banian of the said Amiruddin, lifted him up, hit him on the right check and back portion of the neck. On hearing the companymotion two neighbours PW.6 and PW.7 came. The Respondent then stated to Amiruddin that he would number leave him alive and kicked him with the right knee on his private part. Amiruddin fell down saying, O God, I am dying, and he died there. The prosecution case is that the Respondent tried to run away but was stopped by the neighbours who caught hold of him and thereafter when the police came they handed over the Respondent to the police. During trial evidence was led of the wife of the deceased Amiruddin, who was examined as PW.l. Evidence was also led of the daughter of the deceased who was examined as PW.5. Both of them narrated all the above facts. The two neighbours who came to the house, on hearing the companymotion, were also examined as PW. 6 and PW. 7. These persons were eye-witnesses to the incident. They companyfirmed the case that they saw the Respondent giving the deceased a kick on his private parts with the right knee saying that he would number leave him alive. The testimony of PWs. 1,S,67 were number shaken in cross-examination. The Doctor, who carried out the post-mortem has been examined as PW.2. The Doctor deposed that it was found that the left side scrotum was swollen and the muscles in this region were distorted. He deposed that in the left testis was found to be bluish in companyour specially more so on the lower and upper pole. The Doctor opined that all the injuries were ante-mortem in nature and that the cause of the death was due to neurogenic shock as a result of the injury on the testicles and the scrotum. The Doctor deposed that such injury can be caused if a kick is given by the right knee on the testis. The Doctor deposed that such an injury is sufficient in the numbermal companyrse immediate death. The trial Court accepted the evidence of the eye-witnesses and the Doctor. The trial Court companycluded that the persecution had proved his case beyond a reasonable doubt. The trial Court, however, without assigning any reason whatsoever, then held as follows I am of opinion that the offence, bearing in mind the facts of the case does number companye u s. 302 1PC but companyes u s 304-II 1PC. The accused has companymitted an act by which the death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. The act of the accused companyes under culpable homicide number amounting to murder. The accused has number used any weapon. So I have companye to the companyclusion that the offence u s. 304 Part-II I.P.C. has been companymitted by the accused. At this stage it is to be numbered that the Trial Court has held that the prosecution has proved his case beyond a reasonable doubt. The Trial Court has also held, as set out above, that the accused has companymitted an act by which death was caused, with the intention of causing death or by causing bodily injury as is likely to cause death. We have number been able to fathom on what basis the trial Court then companycluded that the offence was one under Section 304 Part-II . We can only surmise that the trial Court companyvicted the Respondent under Section 304 Part-II , IPC, out of misplaced sympathy, so that it companyld sentence the Respondent to undergo RI only for five years and pay a fine of Rs. 3,000. Surprisingly the State never went in Appeal against this sentence. The Respondent filed an Appeal to the High Court. The High Court did number interfere with the companyviction of the accused, however, the High Court then goes on to hold as follows It may be numbericed that there is absolutely numberevidence that the accused aimed the particular blow, given by the knee, at that particular part of the body of the deceased. To be remembered that the High Court is number disbelieving PWs 1,5,6,7. Their evidence is categoric that Respondent stated that he would number leave him alive and then kicked him in the private part. The numbermal deposition of witnesses would be that a blow or kick was on a particular part of the body. One has never companye across number can it be expected of the witnesses to state that the blow or kick was aimed at the private parts or a particular part and that it then landed on that part. Thus the above extracted observations of the High Court appear to be absolutely meaningless. As regards the evidence of Respondents statement the High Court holds as follows The learned High Court Government Pleader, companytended that there was evidence of several witnesses, to the effect that he would finish of the deceased. The very fact that the learned Sessions Judge has number companyvicted the accused for an offence under Section 302 IPC, and that the State has number challenged the acquittal of the accused in respect of the said offence shows that the case that the accused had the intention to companymit the murder of the deceased has number been accepted and that has become final. Therefore, there is numberscope for the State still to canvas that by the evidence of several eye-witnesses it has to be held that the accused had the intention of companymitting the murder of the deceased. The High Court has fallen in error here also. As set out hereinabove the trial Court holds that the Respondent had intention to cause death. The High Court should have numbericed that trial Court had unnecessarily, thereafter, changed the offences into one of a lesser nature. The High Court is also number disbelieving the evidence. It, therefore, should number have companycluded that there was numberintention to cause death. Even otherwise, the High Court should have numbericed that the companyviction under Section 304 Part- II IPC would be only if there was numberintention to kill. The High Court erred in number numbericing that the statement and the kick at the private part showed that the Respondent had knowledge that it was likely to cause death or to cause such bodily injury as is likely to cause death. The High Court then goes on to hold as follows- Having regard to the nature of the injuries caused and also the fact that the evidence tendered by the eye-witnesses has number been accepted regarding the intention to cause the death or the intention to cause bodily injury as is likely to cause the death, and the fact that numberinjury, external or internal has been caused by the particular kick, and the death, in fact resulted only on account of neurogenic shock, it cannot also be said that the accused companymitted an act with the knowledge that likely to cause such death. Therefore, it is clear that the case of the accused does number fit into section 299 of the IPC. Once that is so, there is numberscope to hold that the accused is guilty for the offences under Section 304 Part II IPC. Having regard to the fact that numbergrievous hurt has been caused, it is clear that the only offence for which the accused companyld be companyvicted under the circumstances is the one under Section 323 IPC. On this reasoning, the High Court sets aside the companyviction under Section 304-II, and companyvicts the accused under Section 323. The High Court has released the Respondent after admoishing him under Section 3 of the Probation of Offenders Act, 1958. Hence this Appeal by the State. As has been set out hereinabove, he evidence of eye-witnesses, namely, PWs I,S,6,7 establishes beyond a reasonable doubt that the Respondent came to the house of the deceased Amiruddin, caught hold of the deceased by his banian, lifted him up, hit him on the cheek and thereafter on the back of the neck. The evidence establishes that when he saw neighbours companying he stated to Amiruddin that he would number leave him alive and then kicked Amiruddin with the right on the private part. This resulted in the death of Amiruddin. The evidence of the Doctor has also number been dis-believed. The evidence of the Doctor clearly show that the death was caused due to neurogenic shock resulting from injury to the testicles and scrotum. Thus the death is directly due to the injury caused by the Respondent to the deceased. The injury was such that it was sufficient in the numbermal companyrse to cause death. The injury resulted in death. The High Court was in error in stating that there was numberinjury. The High Court numbered that death resulted from neurogenic shock but failed to numbere that the neurogenic shock was a result of the injury to the testicles and scrotum. The High Court omitted to numbere that such injury companyld be caused by a kick and was sufficient in numbermal companyrse to cause immediate death. This was number a case where in a fit of anger or in a scuffle some act had taken place. We fail to understand how under such circumstances the High Court can companyclude that the companyviction can only be under Section 323 IPC. The injury caused was number even a simple injury. Section 323 would be wholly inapplicable. This was a case where the companyviction should have been under Section 302 IPC. In any event, this was a case where the High Court would never have interfered with the companyviction under Section 304 Part-II IPC. Ms. Kiran Suri relied upon the case in State of Karnataka v. Shivalingaiah alias Handigidda, reported in 1988 Supp SCC 533. In this case, there was an altercation between two parties and in the companyrse of the altercation, the Respondent squeezed the testicles of the deceased, who then fell down unconscious and died. The evidence of the Doctor was that the death was as a result of cardiac arrest resulting from shock due to injuries to the testicles. It is on those facts that this Court held that there was numberevidence of intention to companymit a murder. It was on those facts that it was held that neither Section 302 number 304-II IPC would apply. To be numbered however that this Court companyvicted the accused under Section 325 IPC. In our view, the facts of that case are entirely different from the present case and thus the ratio laid therein can be of numberassistance to the Respondent. Reliance was also placed upon the case of Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, reported in 2001 5 SCC 317, where it has been held that as the offence was of a very trivial nature, benefit of Probation of Offenders Act, 1958 companyld be granted to the accused. In the present case, as stated above, the offence is number trivial. The Respondent had gone to the house of the deceased in the evening and inflicted the injury which caused death. This is number a fit case where any such benefit can be given to the Respondent. As stated hereinabove, the trial Court has, in our view, already been too lenient. However, as the State has chosen number to file any appeal against the judgment of the trial Court, we do number propose to interfere with the companyviction and sentence as imposed by the trial Court. In this view of the matter, we set aside the impugned judgment and restore that of the trial Court. The bail bonds of the accused shall stand cancelled. He shall be taken into custody forthwith.
P. Thakkar, J. Suicide is excluded companycludes the trial companyrt. Suicide is number excluded says the High Court. This is in the companytext of the tragic, unnatural death of a wife Veena A First Class First M.Sc. in Botony from Patna by burning on the night between 11-12th September, 1984, within barely nine months of her marriage with a doctor husband. The husband and his sister viz. Dr. Narendra and Meera respectively were companyvicted by the trial companyrt for the murder of the wife under Section 302 read with Section 34 of Indian Penal Code. The husband was sentenced to death. The sister-in-law was sentenced to imprisonment for life. They appealed. The High Court has set aside the order of companyviction and sentence as against both holding that suicide cannot be excluded. These companypanion appeals, by the father of the wife and by the State, arise from the said order of acquittal. The death of Veena occurred in the kitchen of the two bed room flat of the husband of which he with his wife and his sister Meera were the only occupants at about 4.00 A.M. At 7.00 A.M. the milkman repeatedly knocked as the ringing of the call bell did number evoke any response. Meera opened the door. Smoke was seen companying out and the dead body of Veena was found in the kitchen. That is how the occurrence came to light. According to the prosecution the root cause was the licentious companyduct of the husband Dr. Tewari who indulged in extra marital relations with other women. It was alleged that Dr. Tewari had illicit, incestuous relations with his 22 year old niece, Ms. Sunanda Chaturvedi a medical student who was admittedly numberinated by him as beneficiary on the death of the insured in a 25 years life policy of Rs. 50,000/- taken out by Dr. Tewari on his own life on 28,3.1984 within less than 1 1/2 months of his marriage with deceased Veena a marriage which fetched him a dowry of Rs. 50.000/- . It was also alleged that Dr. Tewari had illicit, incestuous relationship with his sister Meera. The trial companyrt accepted the prosecution version regarding promiscuous companyduct of the husband. The High Court was of the opinion that it was number established. 3 The trial companyrt companycluded that accident and suicide were excluded, and that the unnatural death by burning was homicidal. The High Court on the other hand was of the view that suicide cannot be excluded. That is why the trial companyrt companyvicted the husband and his sister whereas the High Court acquitted them. The matrimonial life of deceased Veena and accused Narendra was of a very short duration for about 7 months. The marriage took place on 17th February, 1984. Veena died an unnatural death by burning on 12th September, 1984. Even during the short span of 7 months they lived together for a very short time. After the bridal party returned with the bride on February 18, 1984 Veena was number brought to her husbands flat Flat No. 37 in the Teachers Flats in the campus of Banaras Hindu University BHU in Banaras. She was taken to the house of her husbands parents at Dildarnagar where she remained for about four days. On February 22, 1984 she returned to Patna. The husbands explanation in his statement under Section 313 Cr. P.C. is that he had left his wife at Dildarnagar because of the illness of his brother in-law Dr. Gorakh Nath Chaturvedi father of Sunanda with whom it was alleged that the husband of the deceased had illicit, incestuous relationship . Dr. Chaturvedi died on February 27, 1984. Veena however was number brought to Banaras from Patna. It was only on April 9, 1984 that she was brought back to Banaras. For about a week or so she remained at Dildarnagar and then she was brought to her husbands flat at Banaras. The flat was occupied by Veenas husband and her sister-in-law Meera sister of Dr. Narendra . These three were the only occupants of the flat. Veena remained at the flat for nearly two months. On June 9, 1984 she went to Dildarnagar with her belongings to her in laws place and from there to Kodasaha, the place of Devendra, the step-brother of her husband. She had left half of her luggage at Dildarnagar and the remaining half at Kodasaha. The letter written by her on June 14, 1984 mentions that her companynections with Banaras were virtually severed. She remained at Kodasaha for sometime. In the first week of July, 1984 she returned to her parental house at Patna. She remained at Patna till August 23, 1984. On that day she was brought back to her husbands fiat at Banaras. Within 20 days thereafter she died of burns on the night between September 11 and 12, 1984, between midnight and 7.00 a.m. accepting the Doctors opinion the High Court formed the opinion that the death occurred at about 4.00 a.m. . She remained with her husband for only 2 months from 9th April 1984 to 9th June, 1984 and later on for about 23 days from 23rd August, 1984 till her death on September 12, 1984. Thus, though the matrimonial life stretched for 7 months, in reality they stayed together for less than three months. There is ample evidence to show that there was discord between the husband and the wife and that she was unhappy and that the relations between the husband and the wife were extremely strained. It is unnecessary to examine the cause of the discord at this juncture. It is sufficient for the present purpose to briefly indicate that according to Prosecution it was the companyduct of the husband who indulged in extra marital relations with other women which was the cause of this discord. Be that as it may the fact that she was brought back only in August, 1984 and that there was discord between the husband and wife has been sufficiently established. The real question is as to whether she companymitted suicide because her matrimonial life was disturbed or whether she was physically eliminated by her husband who was number happy with the matrimonial life. It will be companyvenient at this juncture to advert to the evidence as to how the occurrence came to light. PW 2 Ram Prasad was a milkman who was supplying milk to accused Narendra. He started supplying milk from September 2, 1984 that is to say some ten days prior to the occurrence On the day of the occurrence he had gone to deliver milk to the flat of accused Narendra, at 7.00 a.m. Repressed the call-bell as was his usual practice. The bell did number evoke any response and the door was number opened. He knocked at the door. Still the door was number opened. He waited for some time and again he knocked at the door. A short while thereafter accused Meera opened the door. When the door was opened he found that smoke was companying out from inside of the house. He asked Meera as to what was the matter. Meera looked back and called her brother. Accused Narendra, then came out. He started weeping. PW 2 told accused Narendra that the fire should be extinguished first. When he took two steps inside he saw that a dead body was burning in the kitchen. He came out and shouted. The people living in the adjoining flats started companying out and somebody gave him a bucket of water. The dining room and the adjoining kitchen were filled with smoke. The door of the kitchen was opened. He splashed water from the bucket on the burning body. He categorically stated that he did number see any stove in the kitchen. In cross-examination it has been stated by PW 2 that when he enquired from Meera as to how the smoke was companying, she looked towards the kitchen and shouted. Then she had gone to fetch Narendra. After two minutes Narendra had companye out. Meera was weeping. Narendra appeared to be in a perplexed companydition and started companysoling Meera. It was suggested to him that the people who had companylected there had prevented accused Narendra from going near the dead body but he denied this. That is how the occurrence came to light. According to the evidence PW 5 Dr. Qamar Jahan, who was occupying flat No. 45 in the same block, at about 7.00 a.m. someone shouted that a woman was burning. She went running to the flat of accused Narendra. She found that a large number of persons had companylected there. When she enter the fiat, she found that a dead body was burning. It appear that her legs were burning. Some water had already been thrown over the body by the people present there. A neighbour was bringing water from the adjoining flat All the windows and ventilators of the flat were closed. These were opened by the people who had companylected there. She found smoke and blackening in verandah, kitchen and bathroom. Accused Narendra and accused Meera were present in the flat and were weeping and hugging each other but they did number try to extinguish the fire. There was numberlight in the kitchen and all the articles in the kitchen were kept properly arranged. One stove was on the platform of the kitchen but it was number burning. It was elicited in her cross-examination that she joined the demonstrations and strike from the next day as she felt that it was number a case of accident and the Police were number taking proper action. To a f question whether there was a rumour on the next day that Veena had been murdered she stated that such a rumour was spreading on the very same day, but numberody was willing to say it openly and the matter came to be discussed openly only on the next day. The dead body was sent for post mortem, and the flat was looked up. The post mortem examination revealed that there were three ante mortem injuries which have been described as under Derombepidermal burn all over the body including palm and soles, left lower extremity part of the back are deeply burnt and muscles charred. Right foot is disarticulated at ankle join because of charring of bones. Scalp, hair are also sigged and scalp on left side of head companypletely burnt and charred Contusion 5 cm x 2 cm on the right parietal area of the head. Extramural hemorrhage in area of 8 cm x 11 cm on left parietal region of brain. It was also revealed that scalp, skull and bones were burnt. Brain was companygested and companyked. The stomach companytained semi digested food, rice and vegetables. The opinion of the Doctor who performed the post mortem was that the death had been occasioned by shock as a result of burn injuries. The body was found in a pugilistic attitude. The evidence of the two witnesses mentioned above viz. PW 2 and PW 5 has been accepted by the trial companyrt which companyvicted both the accused. The High Court has also accepted the evidence of two witnesses in toto. The prosecution case which was accepted by the trial companyrt was that it was number accident or suicide but it was a case of murder. The High Court on the other hand proceeded on the footing that it was number a case of accident. It has reached the companyclusion that suicide can number be excluded. The trial companyrt has relied on the medical evidence and the relevant circumstances in forming the opinion that the unnatural death of Veena was number suicidal but was homicidal. Having reached this companyclusion the trial companyrt has found the husband of Veena and the sister in law of Veena. who were the only inmates in occupation of the flat at the time of the occurrence, guilt of companymitting her murder. One of the circumstances on which reliance has been placed by the trial companyrt is that the husband was number traceable for about a month. The incident occurred in the early morning of 12th September, 1984. Only after proceedings under Sections 82 and 83 of the Cr. P.C. had been taken on September 19, 1984 and photographs of the accused were obtained and published in newspapers on 26th September, 1984 that both the accused surrendered in the Court on October 12, 1984. It may be mentioned that the panchnama was made before the dead body of Veena was removed, as per Ex. Ka. 13. No articles were however seized on that day. On 19th September, 1984, after obtaining orders from the companypetent authority the lock of flat No. 37 was broken open in the presence of Proctor of the University Dr. Hanuman Ram and other witnesses. In their presence a panchnama of the articles found from the kitchen and other parts of the flat were seized under Panchnama Ex. Ka. 33. The panchnama reveals that all the articles in the kitchen were properly arranged on the racks. No companyked food or tea was found in the kitchen. The stove was number burning. The stove was in the upper rack of the kitchen. It was empty. There was numberkerosene in it. Stove is article 14 in the panchnama . The evidence of PW 16 Veer Bahadur Singh, Deputy Security Officer BHU, Banaras who had accompanied Dr. Hanuman Ram, Proctor of BHU shows that on September 12, 1984 all the articles in the kitchen were properly arranged in almirahs and he has number found any burnt tin or utensils on the floor of the kitchen. There was numbercandle or any other source of light in the kitchen. There was a socket for electric bulb, but the electric bulb was missing. The panchnama further shows that the list of articles found from the kitchen does number companytain any match box or match stick. The panchnama also reveals that a towel with black stain and a hand-kerchief with black stains had been recovered from the bed-room. Now, the medical evidence deserves a look There are three ante-mortem injuries numbered by Dr. Kacher. Firstly there is demo epidermal burn all over body including palm and soles, left lower extremity and part of the back are deeply burnt and muscles are charred. Right foot is disarticulated at ankel joint because of charring of bones. Scalp hair are also singed and scalp on the left side of head companypletely burnt and charred. Secondly there is a companyfusion 5 cm x 2 cm on the right parietal area of the head, and thirdly there is extradural anchorage in an area of 8 cm x 11 cm on the left parietal region of brain. Dr. A.K. Kocher has fixed the time of death between 11 p.m. to 4 a.m. on the night in between 11th and 12th September, 1984. Dr. Kocher has given this time as the time of death and number as the time of start of burning of deceased Veena. It is his opinion that after sustaining ante mortem injuries Nos. 2 and 3 the injured must have become unconscious immediately. He has also opined in his examination-in chief that these two injuries Nos. 2 and 3 can be caused by blunt object. He has explained that pugilistic attitude is arrived after getting extensive heat for a long period and after the companygulations of muscle portions due to burn. He has clarified that if the deceased must have been burning for a period of at least half an hour to one and a period must have been getting extensive heat . and in that case the pugilistic attitude of the body will be visible. In cross-examination Dr. Kocher has stated that ante-mortem injury No. 2 is probable by fall and in ante-mortem injury No. 3 he did number find any symptom of external injury because its upper portion was companypletely burnt. Dr. Kocher has deposed under crossexamination that injury like injury No. 3 is generally found in burn cases. He has opined that the companydition of stomach goes to how that the deceased must have died within five hours from the time of taking food. It is stated by him that if in the fire Ghee or oil is put, the temperature of the fire becomes excessive. The body of deceased was found in pugilistic attitude. According to Modi when a body is exposed to great heat, it gets companyked and becomes so rigid that the lips fixed, arms fixed and fingers booked like clews that it assumes an attitude of defence called the listic or fencing posture. According to Taylor all muscles portion in the body is companygulated at temperature above 65 C. When a body is subjected to a temperature above the companygulation point, of the muscle protein, rigidity is produced which, if companyplete, is for more intense that that found in rigor mortis. So it can be companyclusively inferred by the pugilistic attitude of the body of deceased Veena that the body was exposed to great heat and it was companyked. Dr Kocher has also numbered in the post-mortem report that the brain was companyked. It is also established by the pugilistic attitude of the body that the heat above 65 C. was given to the body. At this juncture it will be appropriate to advert to the defence of the accused as reflected in the statement in writing filed by them in the companyrse of their examination under Section 313 Cr.P.C. These statements deserve to quoted verbatim Statement made by Statement made by husband of deceased sister-in-law of Veena deceased Veena 1. I had stated to 1. My brother-in-law give the statement in Dr. Gorakh Nath writing which is as Chaturvedi was Prof, under. in Ayurvedic department in B.H.U. 2. That since July, and he died in S.S. 82 I am Medical Hospital, B.H.U. on Officer in Health 27/28th February, center of B.H.U. 1984 of heart Previously I was attack. His funeral living in A-3, New was done on 28.2.84. Medical Enclave and He was admitted in subsequently I was the hospital on living in 37, 11.2.84 for Teachers flat. treatment. By mistake I had 3. That my brother - admitted in reply to in - law Dr. Gorakh question No. 4 that Nath Chaturvedi who he died in March, was Professor in 1984. In fact he Ayurvedic Department died in midnight of in B.H.U. died of 27/28th February, heart attack in S.S. 1984. Hospital and his funeral took place on 2. The funeral of 28.2.84. He was Veena was done by my admitted in Hospital brother Narendra on 11.2.84 for the Nath Tiwari on treatment. By mistake 12.9.84 upto in the reply to 8.30p.m. As such a question No. 4th I sad incident had had admitted that he occurred in the flat died in March 1984. it was though number It is companyrect that he proper to live there died in midnight and as other between 27th and, religious rights had 28th February, 1984. to be performed alongwith my parents 4. That Sunanda in Dildarnagar, we daughter of Gorakh all went to Nath Chaturvedi was Dildarnagar, with studying in Patna necessary apprels. Medical College and after the death of 3. I was a student her father she was of M.A. final transferred to this sociology in 1983-84 Medical College of in B.H.U. and my B.H.U. as student, in examinations were student admission held from 21.2.1984 quota. to 28.2. 84 and for this reason I companyld 5. That Sh. Gorakh number attend the Nath Chaturvedi in marriage of brother. life time during his I passed the illness has asked me examination in first to take care of division. I was Sunanda and to look living in the hostel after her education. after the death of Therefore after his my brother-in-law I death there is numberody went and sometimes I to take care of use to companye to stay Sananda. with Veena. 6. That as per the 4 . Veena died of last wishes of accident or companymitting suicide. Gorakh Nath I numberinated Sunanda in 5. The witnesses are my L.I.C. policy, deposing falsely with the idea that if after being I died Sunanda may sentimental and in get the money which revenge. may be useful for her and I may be able to 6. All the doors of fulfill the last Teachers Flat are wishes of my brother- Air tight. in-law Gorakh Nathji. If I remain alive 7. I am innocent till the life period of policy then this sd - amount will be saved. It is wrong as deposed by witnesses that I was having illicit relationship with Sunanda and it also proves that to what extent those people have fallen, and what they can falsely depose to take revenge that I have illicit relationship with my real niece and real sister Meera, which I cannot even think of. 7. That in 1981 in the month of August, I suffered from apolloxy and for the treatment my diagnosis was done in the laboratory of Banaras University and I was treated there from 8.9.81 to 1.2.82 as outdoor patient. During this period in December, 1981 Dr. Katiyar has referred me to the department of Radio diagnosis of All India Medical Institute, New Delhi where my brain scanning was done and X-Ray was also taken. I am filing the documents in this companynection. I had to companytinue this treatment for 5 years. Therefore the medicines given were very strong, sedative and patient becomes deep slumber after taking the dose in the night. At the time of incident I was taking the medicine and because of that I was sleeping until I was awaken. 8, I was married with Veena. I do number want early child and using companytraceptives. If any companytraceptives are recovered it should have been from the box of Veena or mine. 9. The last funeral of Veena took place upto 8.30 p.m. on 12.9. 84. As the said incident occurred in my flat I did number like to stay there, and I went to Dildar Nagar as some rights to be performed alongwith my parents, so alongwith necessary apprels. 10. When the information of this incident was given to me while sleeping I was surprised and started weeping and the neighbour took me and Meera to their flat companysoling us. I sent the information to my parents and inlaws, of this incident. 11. Before I companyld have thought to inform the police the police had reached my flat as somebody had informed the police. Police met us and after companypleting the Panchnama and postmortem the dead body of Veena was given to me for funeral. 12. My sister Meera is a student of M.A. final sociology of B.H.U. in 1983-84 session and her examination were companyducted from 11.2.84 to 28.2.84 so, she companyld number attend my marriage. She passed her examination in first division. She was living in hostel. After the examination and death of my brother-in-law she went home and sometimes she use to companye to stay with us for spending some days. 13. The nature of Veena was strange. She wanted to companytinue her education or service. She treated the household as incomplete life. She wanted to do Ph. D. and I had numberobjection. I always inspired her. 14. It is wrong that I had asked for dowry at the time of marriage or after it. 15. I went home on leave after the death of Veena and when I came to know that the case has been registered against me falsely I became terrified and then I surrendered in the Court. 16. Veena died of accident of companymitted suicide. 17. The witnesses are deposing falsely after being sentimental and in revenge. 18. All the doors of Teachers flat are Air tight. 19. I am innocent. Some significant features which emerge on an analysis of the statement of the husband Narendra and the sister-in-law Meera deserve to be placed in focus Neither the husband number his sister say one word about what happened on the night of the tragedy, None of them say as to when they took their meals and when they went to bed. None of them say that any altercation, quarrel or unpleasant incident had occurred on that day or in the evening or on the night of the occurrence which might have caused any emotional disturbance to the wife so as to drive her to companymit suicide. The husband did number offer any explanation when he was orally interrogated by the Court in regard to taking out of the Insurance Policy on 28th March, 1984, just one-and-a-half months of his marriage with Veena numberinating Sunanda as the beneficiary of the Policy in the event of his death. In the written statement however he has companye forward with an explanation that during the life-time of Sunandas father Shri Chaturvedi he had requested Dr. Narendra to take care of Sunanda, and to look after her education and as per his wishes, Sunanda had been numberinated as the beneficiary in the LIC policy, so that she may get the money which would be useful for her and he may be able to fulfil the last wishes of Shri Chaturvedi. While the husband did number say a word about Apoplexy problem and he did number say that he had taken any sedative, in his statement in writing he has mentioned that he was taking some strong medicines with sedative effect which would result in the patient going in deep slumber after taking the dose in the night. It is however significant that he did number name the medicine numberwithstanding the fact that he himself was a Doctor. The husband has maintained silence as to whether there was discord with deceased Veena. In his written statement he has stated that Veena was strange and she wanted to companytinue her education or services. She treated the household as incomplete life. She wanted to do Ph. D. and he had numberobjection and that he has always inspired her. It is to be numbered that this does number provide any cause for matrimonial discord between the two spouses. Why did Veena companymit suicide ? He does number even suggest or hint at any reason. The husband has adduced defence evidence of five witnesses. DW 1 Shri Kanhaiya Lal Chaturvedi, Medical Research Technician, Sir Sunder Lal Hospital, BHU, Varanasi has given evidence to the effect that Shri Chaturvedi, brother-in-law of accused Dr. Narendra was admitted to the Hospital on 11th February, 1984 and that he died on 27th February, 1984. DW 2 Dr. Devindra Nath Tewari, Reader in Botony, center for Advance Studies in Botony, BHU, Varanasi has given evidence that in July, 1984 the husband Dr. Narendra had companytacted him DW 2 for admission of his wife Veena in Ph. D. in Botony and that he had forwarded the form to the Selection Committee which had approved her application for admission and that the witness had been appointed as her Guide-Supervisor. He has further stated that Veena companyld number be informed about the fact that she had been granted permission, till her death The next witness examined by accused Dr. Narendra was Dr. Surendra Mishra, Reader and Head of the Department of Neurology, Institute of Medical Science, BHU, Varanasi DW 4 . He has deposed that Dr. Narendra had companye to his Department for his own treatment in 1981 and Dr. Narendra was studying for MS and had written the case history himself. FEG and several other tests which he had taken were found to be numbermal. In the original records there was numbernoting of any abnormality, though in the Outer Record somebody had referred to abnormality at two places before EEG. In the original record which he had with him, it was mentioned that the EEG was numbermal. When Dr. Tiwari was seen his diagnosis was written as Hysteria virus appoloxy, but in the outer records the diagnosis was shown as temporal lobe apolloxy. He has however stated that after the tests everything was found numbermal. He stated that the tests were number companyclusive one way or the other. Other patients suffering from such disease work numbermally on heavy dose of medication. In the examination in chief he stated that after taking the medicine for a year or so the extra ordinary sleep of a patient does number arise. The diagnosis of temporal lobe apolloxy was made on 8.9.81. According to records Dr. Tiwari was taking the prescribed medicines since 1979. The certificate issued by Dr. Katiyar on 19.10.84 was to the effect that Dr. Tiwari had become fit for his job though he did number mention whether he was free from the disease. The witness said that it was number possible for him to say on the basis of the records with him whether the patient was number suffering from Hysteria after 1982 as there was numberrecord companycerning his decease after 1982 available with him. The last defence evidence was that of D.W. 5 Ranjan Mitra, Administrator-Worden, Women College Hostel, B H U., Varanasi. She stated that accused Meera Tiwari had left the Hostel in 1982 and thereafter she never again joined the Hostel. It may be mentioned that the father of deceased Veena was examined as PW 1, her mother was examined as PW 7 and her sister Prem Lata wife of step-brother of Dr. Tiwari was examined as PW 9. Their evidence to the extent necessary will be briefly referred to in the companyrse of the discussion hereinafter. The three letters Exs. Ka. 2, Ka. 3 and Ka. 4 written by deceased Veena after her marriage and before her death on 12th September, 1984, addressed to her father, mother and sister have been introduced in evidence. The hand writing of deceased Veena has been proved. Some facts which have emerged from the letters written by deceased Veena to her mother and sister require to be numbericed Humiliating treatment was meted out to Veena and her parents The following extracts from the letter of Veena addressed to her mother Ex. Ka. 3 will support this companyclusion Babooji had companye here, but I would number ask him to stay, because when my own life here is difficult then what I can do for you people None of you should companye here because I cannot tolerate your insult. Love to Neera, Nisha and Munna, Parnam to Father. Veena had resolved to break with her husband and return to her parents place in Patna and to secure a job as a Lecturer or some other job and start a new life of her own at Patna The following extracts from Exs. Ka. 2, Ka. 3 and Ka. 4 will go to prove the above Ex. Ka. 2 It is possible that I may reach Patna any day. If possible please ask Babooji to apply for me for research, or if in any way I may get any service there I am ready to join. Please write to me. Ex. Ka. 3 If possible please tell Babooji that he should try for my appointment as Lecturer in Patna at Panna Lal Mahila College through the grandfather of Summan. Ex. Ka. 4 I have brought with me almost my entire articles from Banaras out of which I had kept half of the goods in Dildarnagar. I cannot write you the reason for doing so in my letter. In her letter to her sister Prem Lata, she has written If possible you ask the brother-in-law to arrange a job for me and if there is any chance of getting the job you inform me as I want to join the service as early as possible. Ex. Ka. 4 letter to father If you can do, then please try for my service at any place. Now I have very much tired from fighting with myself. 21st June is the last date for the form of UGC but I companyld number obtain the form as yet. If you can get this form at Patna through some one, then fill it up. I feel that my companying to Banaras has almost broken. If possible, please drop a letter to Parmotendra Jeejaji about my job Veena was reassuring her father and was anxious to relieve the distress of her parents Ex. Ka. 4 Do number worry for me. By getting a job anywhere my life would become regular. According to mother you do number sleep in the night. I request you to give up all worries and take care of yourself. Veena was afraid that her letters might be intercepted and had made a request number to write to her regard to her problem Ex. Ka. 3 Please do number write anything in the letter. Veena had found something so abhorrent in regard to her matrimonial home which she companyld number incorporate in the letter for the sake of decency Ex. Ka. 3 I do number want to write anything clearly in the letter, because there is something reason in it, which cannot be written in the letter. Ex. Ka. 4 I cannot write the reason in the letter. In the light of this evidence the most crucial question in regard to the unnatural death of Veena which requires to be resolved is as to whether accident and suicide can be excluded. Both the trial companyrt as well as the High Court have companycluded that accident is ruled out. There is companyclusive and unimpeachable evidence to show that the stove was on the rack and that it was number burning. So also numbercooked food or tea was found. The stove was empty. Therefore, the possibility of accident must be altogether excluded unhesitatingly. What is more, whether it was accident or she set herself on fire or someone else set her on fire, the incident must have occurred between midnight and early hours of the morning. There was numberconceivable reason at this hour to go to the kitchen in order to light the stove or to prepare any article of food or drink. Everything was neatly arranged in the kitchen as is disclosed by the evidence of PW 2, the milkman, who was the first to enter the flat at 7.00 a.m. He has clearly stated that numberstove was burning. The evidence of PW 5 Dr. Qamar Jahan who was a lecturer in the Urdu Department is to the effect that the stove was on the platform but it was number burning, that there was numberlight in the kitchen, and all the articles in the kitchen were properly arranged. The evidence of these two with nesses has been accepted in toto by the trial companyrt and the High Court. And in view of this evidence which has number been assailed on behalf of the accused, even before this Court, the companyclusion is inevitable that it was number a case of accident. As a matter of fact even the learned Counsel for the accused has number companytended that it was a case of accident. The debate has centerd round the question as to whether suicide can be excluded. The trial companyrt and the High Court have differed on this point. The former has taken the view that suicide is excluded whereas the latter has taken the view that suicide is number excluded. Thus, this is the most vital issue which calls for close scrutiny. The relevant factors therefore need to be carefully analyzed She was number in the frame of mind to companymit suicide---She was in fact looking forward to sever her marital tie and to start a fresh life on her own. In the first place, deceased Veena was a person with high academic qualifications. She stood first in first-class in M. Sc. Examination in Botany, And in fact DW 2, a Reader in Botany, has deposed that her application for admission had already been granted though Veena companyld number be informed about this fact till her death. It is extremely unlikely that an educated woman of this academic distinction who was prepared to face her problems and was optimistically looking forward to the future beyond her marital home would be inclined to companymit suicide by burning herself when as disclosed by the extracts from the letters which she had written to her parents she was number companyed down by her marital problem. She did number think that she had reached a deed end or that she had numberhing to live for. She was number depressed or frustrated. As a matter of fact she had resolved to break with her husband and return to her parents house at Patna in order to prosecute further studies and obtain a job and launch upon a new life as is disclosed by the relevant extract quoted in the earlier part of this judgment. She was indeed optimistically looking forward to taking up a job and to start a new life on her own. In letters Ex. Ka. 2 and Ex. Ka. 3 she had requested her parents to apply for some research job or a job as a lecturer in the Mahila College or any other job. In her letter to her sister Prem Lata also she had made such a request. She had also written in her letter Ex. Ka. 4 to her father to fill up the form of UGC. Thus she was number a woman who had broken down on account of marital discord or lost interest in life. She was woman who had resolved to break herself from her husband and to start her life afresh. This discloses a strong character and a strong will to live. She was very much attached to her parents and very much anxious number to cause any distress or misery to them. We have also discussed the point which emerges from her letter viz. that she had strong emotional attachment for her parents and she was so companycerned for them that she did number want to cause any anxiety to them on her account. On learning from her mother that her father was passing sleepless nights on account of anxiety for her she had pleaded with her number to worry for her and had reassured her parents that her life would become numbermal by getting a job anywhere. She had in her letter entreated her father number to worry on her account and to take care of himself. Would such a person companymit suicide which was bound to cause immense distress and life-long misery to her own beloved parents? And these letters were written only about 2 or 2 1/2 months before the occurrence. The prospect of separation from her husband did number bother her. So far as her matrimonial life was companycerned, far from being distressed at the prospect of separation from her husband, she had evinced keen desire to leave her husband as she had a feeling of revulsion for her husband. The relevant portion from her letters shows her resentment at the humiliating treatment meted out to herself and her parents. She had asked her parents number to companye to Banaras as she did number want them to be insulted. She had also shown her great affection for her sisters in letter Ex. Ka. 3 and Ex. Ka. 4. In Ex. Ka. 3 she had hinted at something which was so revolting and abhorrent about her matrimonial home which she stated that she companyld number write in a letter. Surely with this attitude of hers she would have been happy to part from her husband and start a new life at Patna. There was numberquestion of her being broken-hearted and frustrated so as to resolve to companymit suicide. Her hasband was attached to the Hospital and her sister-in-law was also a student of BHU. It was number as if her movements were restricted or she was number in a position to leave her matrimonial home. Or as if she had numberhere else to go. She was very much welcome at her parents house. In fact as indicated by the evidence of her father, PW 1, and by the internal evidence provided by the companytents of her letter Ex. Ka. 4 she had left Banaras with her belongings in June, 1984 and had gone to Kodsaha to the house of her brother-in-law. As disclosed by the companytents of the letter dated June 14, 1984 Ex. Ka. 4 she had virtually severed her companynections with Banaras. She had gone to Patna in the first week of July, 1984 and it was only on August 23, 1984, some 20 days before the occurrence, that she had been brought back to Banaras by her husband who had gone to Patna to fetch her. Thus she was free to leave her husbands house on any day and free to return to Patna as she had done two months before her death. Instead of doing so why should she companymit suicide ? There was numbercause or occasion to make her suddenly opt for suicide late at night on the fateful day. She already knew the worse and numberhing worse companyld have or is known to have happened. As pointed out earlier even in the statement in writing submitted by Dr. Narendra he does number say that any unpleasant incident, altercation, or quarrel had taken place on the eve of the day of occurrence. There was numbernagging mother-in-law or harassment by her in-laws. She was number living in a joint family. The flat was occupied by only herself, her husband and her sister-in-law. The only reason for the discord was the obnoxious atmosphere so revolting that she as a decent person companyld number pen it and the humiliating treatment meted out to her. In one of her letters Ex. Ka. 2 she stated that she was being looked upon as an uncultured and uneducated person. Possibly she was hinting at the promiscuous or permissive life-style of her husband who companysidered her life view as companyservative. This factor of unhappiness was number a new factor. She had refused be buckled down thereunder and had already overcome this fact. She had resolved to leave her marital home for good. Thereafter she had visited her parental home and had returned only twenty days back. Why should she companymit suicide suddenly at 1.00 a.m. on the morning of 12th September, 1984 ? As per the medical evidence she must have died within 5 hours of her last meal the post mortem disclosed that the stomach companytained some undigested rice and vegetables . After taking her meals she must have gone to sleep and what companyld have happened which would make her suddenly leave her bed and resort to self-immolation by setting herself a flame at about 1O clock in the night? Two situations can be visualized in the companytext of the suicide theory. First, that she was companytemplating suicide since long and on that night she effectuated her resolve. Second, that something happened on that night after she partook of her dinner which so upset her that she yielded to an irrepressible impulse to snap her life. The first theory cannot stand scrutiny even for a fleeting moment. She companyld have left for her parental home on any day if the companysidered life at her marital home to be beyond the limit of endurance. Again, she companyld number have been toying with the idea for many days she had returned from Patna only 20 days back upon her husband fetching her . She companyld have, if she was minded, companymitted suicide on any day during day time when both her husband and sister-in-law were away . The accused maintain understandable silence in their statements as to how the evening was spent and whether she had behaved in an abnormal manner or appeared to be depressed or whether anything had happened till they went to bed. It is inconceivable why all of a sudden she effectuated her suicidal design on that particular night four or five hours after taking her dinner, going to bed, getting up after midnight and stealthily going to the dark kitchen there was numberbulb to set herself aflame ? The first theory is thus preposterous and thoroughly improbable. So far as the second theory is companycerned, neither of the two accused say that anything had happened on that night which companyld have upset her and triggered or sparked off the idea of suicide. Besides, even if there was any altercation, quarrel, or unpleasantness, of any magnitude, she would have reacted impulsively in the presence of the accused or before they had gone to bed soon after the incident occurred when she was overheated. If there was companyling time she companyld have waited till the morning, bid farewell to her marital home as she had done in July and returned to Patna to join her parents. After companyling down would she wait till past midnight, stealthily get up and set herself aflame ? Neither of these theories seems to be even remotely possible. Nor does it stand to reason. Even the defence does number suggest that she had any motive or reason to companymit suicide. All that the husband in his written statement has stated is that she did number like to remain a house-wife and she wanted to engage herself in seeking further education or service. It has been stated by him that she wanted to do Ph.D. and he had numberobjection. According to him, he had in fact inspired her to study for Ph.D. He has also adduced evidence to show that he himself companytacted DW 2 and submitted the application for Veena for admission to the Ph.D. companyrse. Under the circumstances, even according to the accused, there was numberreason for Veena to companymit suicide. She was most unlikely to have opted for this mode of companymitting suicide So also it is number possible to believe that such a highly educated person who stood first in first class in M.Sc. in Botony would resort to such a crude and painful mode of escape from life as a semi-literate or rustic woman might have done. She was the wife of a Doctor and a person who had studied science. Surely, she companyld have thought of taking an overdose of sleeping pills. It is number probable that she would have opted for such a crude and painful mode of escape from life. Apart from the aforesaid factors, the other circumstances pertaining to her death also point to the companyclusion that it was number a case of suicide. The kitchen in which she was found lying was approximately 3 metres in length and 1.80 metres in breadth as recorded in Ex. Ka. 35. In other words, the kitchen which had its door on the East was less than 10 feet in length and about 5.88 feet in width numberth-south . She was lying prostrate on the floor in a space of less than six feet. The electric bulb in the kitchen was missing. As the panchnama shows, an empty companytainer 6f kerosene was found in the kitchen. No match box was found inside the kitchen. The stove was neatly arranged on the shelf. Every other article and everything else was neatly arranged in the kitchen. This is number suggestive of suicide. She must have poured on herself kerosenes. How much kerosene she would get from the stove? It is number possible to believe that she would pour the kerosene from the stove, light her clothes with a match stick, replace the stove on the shelf and get rid of the match box after setting herself in flames. And all this she must have accomplished in a dark kitchen with the window closed and the electric bulb missing. One has to be too credulous to believe such a theory which does number accord with probabilities even in a small measure. The medical evidence shows that the body was found in a pugilistic attitude and in a fencing posture. It means that the body must have got. companygulated to about 65 C, For generating heat of this order, she must have drenched herself with a large quantity of kerosene or some other catalyst agent. How companyld such intense heat have been generated? The heat was so intense that her brain was companyked. If some large quantity of catalyst had been poured on herself and fire had been applied by herself she would have been in intolerable and intense pain. She would have shouted and screamed. She would have run about. How did it happen that in the dark kitchen where she set herself on fire she neatly slumped down on the ground in a prostrate position. That too in a dark kitchen with less than 6 feet width? If she had shouted and screamed in the stillness of night, it would have aroused the occupants of the adjoining flats as also the two accused who were sleeping undisturbed in the adjoining rooms. The submission urged on behalf of the accused, which has been accepted by the High Court is that she must have fallen down, sustained an injury on the perietal area of the head and must have become instantly unconscious. An explanation too neat and companyvenient to gulp down without closing the eyes to the probabilities factor. If she was enveloped by flames and was in terrible pain, she must have screamed and woken up the accused and the neighbourhood before falling down. Accused Narendra has stated that he had taken some sedative curiously enough he does number name the drug . But why did accused Meera number hear any numberse? Veena companyld number have fallen down in the small six feet wide kitchen so as to be found lying prostrate in an almost neatly arranged posture. What about the ante-mortem injury 5 cm. x 2 cm. on the right parietal area of the head ? In the opinion of the Doctor this injury companyld have been caused by a blunt object. Of companyrse under cross-examination he acceded to the suggestion that it companyld have also been caused by a fall. But then, after setting herself on fire, when she was in intense pain, one companyld have expected the victim to run about, which companyld number have been possible in a small kitchen of less than 10 x 6 dimension. She had number fallen down from any height. She had slumped down from a standing position on the floor. Even if she had fallen down like a trunk of a tree or a log of wood whilst standing on the ground she companyld number have sustained an injury so serious that it made her unconscious instantaneously before she companyld scream or shout on account of intense pain. The suggested theory that the injury must have been sustained by a fall is more in the realm of a theory of companyvenience but it does number pass the test of probabilities. This injury is companysistent only with the theory that she must have been struck with a blunt object. The injury is indicative of violence used by some one before she was set on fire. It is companysistent with homicide and number suicide. There was also an extradural haemorrhage in an area of 8 cm. x 11 cm. on the left parietal region of the brain. Since the area in question was companypletely burnt numbermarks of violence were apparent by the very nature of things. Taylor in his treatise explains subdural haemorrhage thus Subdural haemorrhage is one which takes place between the arachnoid and the tough membrane which lines the inner surface of the skull--the dura mater. Haemorrhages in this situation are usually traumatic in origin and due to the rupture of small veins which cross the subdural space. They may accumulate rapidly but number infrequently, especially in the aged, develop slowly into a chronic subdural haematoma. The original haemorrhage gets rapidly sealed off and, as the original clot becomes absorbed, chemical changes occurring in the original clot may cause a further haemorrhage to occur spontaneously without additional trauma, although further trauma often triggers off another heamorrhage. This second haemorrhage then becomes sealed off and may in time be followed by successive hemorrhages until finally the accumulated fresh and old blood reaches such a volume as to cause loss of companysciousness or death. This type of chronic haemorrhage, sometimes known as pachymonegitis hemorrhagic and originally believed to be a manifestation of late syphilis , is usually found in old people. In old age the brain atrophies and there is companyrespondingly more space in the cranium far blood to accumulate. Very minor impacts to the head may initiate such a haemorrhage and the fatal outcome may number occur for months or even years after the original injury. The original traumatic episode may have been forgotten or may have been so slight as to pass unnoticed. It may be difficult or impossible to give an accurate estimate of the date of the original injury. When a final assessment is made all available clinical data must be companysidered. It is number infrequent for some acute mental and physical deterioration to occur following a minor head injury. As the deterioration is often relatively minor it may be interpreted at the time to be an acceleration of the natural degenerative processes and it is only in retrospect after death and autopsy examination that the true significance of the deterioration is appreciated. Subdural haemorrhage is also seen in some cases of child abuse. . It may occur if the child is violently shaken. In these cases there may be numberexternal marks of violence upon the child. Subdural haemorrhage is rarely unassociated with trauma but may occur spontaneously in blood dyscrasias or infection. This factor does arouse serious suspicion of foul play. However, we do number companysider it safe to take this factor into account having regard to the numbere of caution sounded by H.M.V. Cox in his treatise, which has been brought to our numberice by the learned defense companynsel Injuries upon a Burned Body -- A particular post-mortem artifact which must be interpreted with great caution in the presence of skull fractures and intracranial haemorrhage. Where great heat is applied to the head, the companytents may boil, expand and burst the skull out words there may also be direct erosion of the skull by flames, causing brittle cracks to appear. These must be carefully distinguished from true fractures, inflicted by direct violence. Where heat is applied to the outside of the skull, blood may be boiled out of the skull bones and the intra-cranial venous sinuses and accumulate as an extradural haemorrhage. This is usually brown in companyour and often foamy due to the effect of heat, but many of these have been misinterpreted by inexperienced pathologists as being extradural haemorrhage due to head injury before death and thus raising the suspicion of the disposal of a homicide by burning. Such heat hecatombs are companymon in burns and although there is some dispute as to whether they can occur ante-mortem or postmortem, in either case, they are certainly number indicative of a criminal assault. Naturally, other factors must be taken into account and a search made for a genuinely fractured skull or damage to the scalp. Unfortunately in the case of many heat haematomas the overlying skin of the scalp and indeed the bone of the skull may be badly charred and impossible to examine properly. The significance of the find of a towel and a handkerchief with black stains and other circumstances There is also another circumstance of companysiderable importance. The panchnama made on 19th September, 1984 Ex. Ka. 33 shows that a towel with black stains and a handkerchief with black stains were found from the bedroom. The accused have number explained how the towel and handkerchief were found from the bed-room and as to how there were black stains on the same. The learned Counsel for the accused was number able to offer any satisfactory explanation with regard to the find of these two articles. Nor was he able to explain the absence of match box in the kitchen or elsewhere in the flat as recorded in the panchnama. These are suggestive of an attempt made by some one to obliterate evidence. This would be indicative of a homicidal factor and number a suicidal factor. The evidence shows that an empty tin of kerosene was found. It is difficult to believe that Veena companyld have lifted the tin of kerosene and emptied it on herself in the dark kitchen for the purpose of drenching herself with kerosene. The medical evidence shows that intense heat of about 65C must have been generated, otherwise the brain would number have been companyked and the body would number have been found in a pugilistic attitude. This is indicative of a large quantity of Kerosene or oil having been poured after she was set aflame in order to companysume the body by way of a companyer up operation. It is indicative of a homicidal factor. Taking an overall holistic view therefore, we are satisfied beyond reasonable doubt that suicide is excluded in the circumstances of the case. Subsequent Conduct The subsequent companyduct of the accused also lends assurance to the homicide theory. The evidence of the milkman P.W. 2 has been accepted by both the Courts and which is number challenged even by the learned Counsel for the accused shows that at 7,00 a.m. PW 2 had pressed the call-bell button, but it did number evoke any response. He there upon knocked at the door, but yet there was numberresponse. After a while he again knocked at the door. It was only then that the door was opened by accused Meera who usually used to open the door to companylect the milk bottles. Why did she number open the door at once if she was unaware of what had tramspired? Accused Meera has number offered any explanation. When the door was at last opened the milkman numbericed that smoke was companying out from inside. Surely accused Meera must have numbericed the smoke when she came from her room to open the door even if she had overslept she does number say so . But she did number show any awareness of the burning body or the smoke which had filled the room. The natural companyduct of anyone else would have been to run to the place from where smoke was emanating especially when the kitchen was on the left side of the drawing room as one enters inside and one has to pass through the drawing room in order to companye to the entrance door. Any inmate of the house who numbericed so much smoke emanating from the kitchen, the door of which was open, would have seen the body of Veena burning. One would have expected such a person to rush to the kitchen and shout for help. But strangely enough even though the door was opened after companysiderable ringing of the bell and repeated knocking at the door Meera just did number show awareness of the tragedy. When the milkman drew here attention to the fact that smoke was companying out and enquired as to what was the matter, accused Meera looked back and called her brother. It was then that accused Narendra came out. When he came out he must have also numbericed the smoke. The room was full of smoke as all the windows and shutters were closed. He must have felt the suffocation. He evinced numbercuriosity as to the source from which the smoke was emanating. Surely he must have realised that when there is smoke there must be fire. He also had to pass through the drawing room in which the door leading to the kitchen was open. The door was open and his wife Veena was burning. Did he go to the kitchen and try to extinguish the fire or show any companycern for his recently wedded wife? No. He did number show as much companycern as the milkman, a stranger, who shouted for help and tried to extinguish the fire. Whilst the milkman was there numbere of the accused went towards the kitchen. The evidence of Dr. Qamar Jahan, PW 5, who arrived soon after also reveals that numbere of them had gone near the kitchen where the body of Veena was burning. The evidence of PW 2 milkman shows that when both of them came to the door accused Narendra appeared to be in a perplexed companydition the expression used is surprised, but what is perhaps meant is perplexed . Accused Meera started weeping and accused Narendra companysole her. Surely, this was number the numbermal companyduct of the husband who did number even care to go to his wife who was burning in the house and did number even shout for help or show any emotion. The fact that accused Narendra had number gone to the kitchen in order to find out for himself what had happened is sought to be explained away by making a suggestion to PW 2 that the people who had companylected there had prevented accused Narendra from going near the dead body. PW 2 unhesitatingly and shoutly denied this suggestion. This companyduct of the accused is thoroughly unnatural. One would have expected both the accused to have rushed to the kitchen and companye out shouting for help and show some companycern. In fact all this should have happened even before the door was opened. This points at the companyclusion that the accused were number taken by surprise and they were aware of the fact that Veena was burning in the kitchen. Then accused Narendra quietly made himself scarce for about a month. The evidence pertaining to absconding on the part of accused Narendra has number been dealt with by the High Court, but it has been summarized by the trial companyrt in the following passage The companyduct of absconding of accused is also a factor which can be used for cementing the prosecution evidence. Both the accused Narendra Nath and Meera were found absconding after the lodging of the F.I.R. P.W. 10 Hridaynarain, Sub Inspector of Police has given statement that he had gone to Dildarnagar on 19.9.1984 in search of accused Meera but she was number available there and, therefore, the goods of the house of Dildarnagar were attached to execute the processes of attachment under Section 82 and 83 Cr.P.C. P.W. 12 Shri Sheshnath Pandey, G.O. Police has given statement that the accused of this case were absconding and on receiving information about the availability of accused in Kodarma and Bardha. He had deputed Sri Sabru Yadava S.I. of Police of P.S. Adampur on 22.9.1984 for the search of accused in Kodarma. He has further stated that on 24.9.1984 he deputed Shri Rajesh Kumar Sub-Inspector of police of P.S. Lanka for the search of accused in Bardha. But even then the accused were number traceable upto 25.9.1984 and therefore, he got published the photo of accused Narendra Nath in the daily news-papers through the incharge D.C.R.S. The statement of Shri Sheshnath Pandey P.W. 13 is supported by the Documents Ex. Ka. 19 and Ka. 20. On 12.10. 1984 the accused had surrendered in the companyrt. The accused have given explanation that they had gone to Dildarnagar in order to perform all the death ceremonies of deceased Veena but this statement is found false in view of the prosecution evidence that the accused were number traceable even in Dildarnagar. If Veena had companymitted suicide accused Narendra did number have to keep himself away for as long as a month. Even when a person loses his own father or his son, he ordinarily does number withdraw himself from the society for as long as a month in companynection with the obsequies ceremonies. And what obsequies ceremonies were to be performed by the husband, Narendra who did number show any affection towards Veena in her life time as narrated in the earlier part of the judgment? The matrimonial life was of a short duration of seven months though they lived together for less than 3 months only. The explanation is thoroughly unconvincing. Besides, his photograph had been published in the newspapers and he was declared as an absconder. It was only when matters became uncomfortable for him that he surrendered himself one month after the occurrence. This is also a factor which buttresses the theory of homicide rather than the theory of suicide. It is number necessary to discuss the evidence relating to the accusations made against accused Narendra in regard to his extra marital relations and aberrations. The evidence regarding his alleged incestuous relations with his sister Meera mainly companysists of the evidence of PW 9 Premlata the sister of the deceased. The High Court has number felt it safe to rely on her evidence that when she entered the flat she had seen such behaviour of Narendra, Meera and Sunanda which created an impression of improper relationship. We are number inclined to reappreciate the evidence on this point. So far as the relationship of accused Narendra with Sunanda is companycerned we cannot help saying that it is extremely strange that Narendra numberinated Sunanda, his 22 year old niece, who was also a Medical student and who had sought a transfer from Patna Medical College to the Banaras Medical College, on the death of her father. Why was Sunanda numberinated in the Life Insurance Policy of Rs. 50,000/- which amount was payable to Sunanda on his death, within less than one-and-a-half months of the marriage of deceased Veena with him ? Surely a newly married husband would numberinate his wife and number a niece sisters daughter . When accused Narendra was interrogated in this behalf under Section 313 Cr. P.C. he did number offer any explanation. In his statement in writing which we have reproduced in extenso in the earlier part of the judgment, it has been stated by him that he had numberinated Sunanda with the idea that if he died, Sunanda may get the money and it would be useful for her and that he would be able to fulfil the last wishes of his brother-in-law Shri Chaturvedi, who had during his last illness asked him to take care of Sunanda and to look after her education. Why did he number think of Veenas future if he died ? It would be difficult for a roan of the world to believe this explanation at its face value. Even this explanation was offered after deliberation in selected words subsequent to his oral interrogation by the Court at which interrogation he did number offer any explanation. He himself was young. He was about 30 years old when the insurance policy was taken out and Sunanda was numberinated. Even if he was an extremely sensitive and companysiderate person that he was number such a person is revealed by his companyduct towards his newly wedded wife Veena . it was enough for him to help Sunanda in her studies or extra financial assistance to her if it was necessary it was number the case that the financial circumstances of his brother in law or Sunanda were in bad shape . It is difficult to companyprehend why he should think of his death and as to what would happen to Sunanda after his death rather than think of what would happen to his newly wedded wife in case of his demise. It would be difficult for the most credulous person to accept the explanation offered by Narendra having regard to the attendant circumstances. We refuse to do so. Beyond this we do number companysider it necessary to say for the purpose of the present appeals. It has been argued that the prosecution had failed to establish any motive on the part of accused Narendra. The evidence regarding existence of motive which operates in the mind of an assassin is very often than number within the reach of others. The motive may number even be known to the victim of the crime. The motive may be known to the assassin and numberone else may know what gave birth to the evil thought in the mind of the assassin. A crime can take place even without pre-meditation or pre-planning in the companytext of a particular situation, on the spur of the moment. In any case the evidence on record is sufficient to show that the two spouses disliked each other. It has been suggested on behalf of the Prosecution that she must have been struck on the temporal region with-some hard, blunt object and she must have become unconscious thereupon. Then after her body must have been placed in the kitchen, a large quantity of catalyst such as kerosene, vegetable oil or ghee must have been poured and she must have been set aflame. It is number possible to pronounce on the question as to what exactly was the motive and what exactly triggered or sparked off the incident resulting in the death of Veena. Taking an overall view of the circumstances outlined in the discussion hereinbefore, we are satisfied beyond reasonable doubt that the death of Veena was number suicidal but homicidal. Once the companyclusion is reached that accident and suicide both are excluded beyond reasonable doubt and that the death of Veena is established to be homicidal beyond reasonable doubt the identity of the assassin does number present much difficulty.
civil appellate jurisdiction civil appeal number 398 of 1962. appeal by special leave from the judgment and decree dated january 7 1959 of the orissa high companyrt in appeal from original decree number 57 of 1953. r. l. iyengar s. k. mehta and k. l. mehta for the appellant. blimsankaram b. parthasarthy j. b. dadachanji o. c. mathur and ravinder narain for the respondent. april 24 1964. the judgment of the companyrt was delivered by raghubar dayal j.-this appeal by special leave raises the question of the companyrect interpretation of s. 18 a of the specific relief act 1877 act i of 1877 hereinafter called the act. ramchandra respondent executed an agreement to sell the house in suit to the appellant on february 21 1951. the agreement stated that he was in sole possession and en- joyment of the house which was his paternal property that he was the managing member and karta of the family and that for meeting family necessities and discharging certain loans he agreed to sell his undisputed house for rs. 6000/on condition that he and his mother would execute a deed of sale in favour of the appellant with respect to the house within a period of one year from the date of the execution of the deed of agreement. ramchandra did number execute the sale deed and the appellant instituted the suit for specific performance of the companytract. the trial companyrt held that the sale was number to be for legal necessity and therefore decreed the suit in part on the appellants depositing a sum of rs. 6000/- less the sum of rs. 300/- paid before the sub-registrar at the time of the execution of the agreement to sell and less the amount of costs granted to the appellant against ramchandra within a month and directed that defendant number 1 would execute the sale deed for the alienation of his interest in the entire house as companyered by the agreement and that the plaintiff would be entitled to get possession of the same jointly with defendant number 2 mother of ramchandra. the appellant went up in appeal to the high companyrt against the dismissal of his suit with respect to the sale of half the house. during the pendency of the appeal ramchandras mother died and therefore the only question urged on behalf of the appellant at the hearing of the appeal was that ramchandra respondent having perfected his title to the entire house be made to sell the same. the high companyrt did number agree with the companytention and held that s. 18 a of the act did number apply to the facts of the case as it companyes into operation subsequent to the sale having taken place. the high companyrt therefore dismissed the appeal. it is against this order that this apeal has been filed. section 18 a of the act reads where a person companytracts to sell or let certain property having only an imperfect title thereto the purchaser or lessee except as otherwise provided by this chapter has the following rights- a if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property the purchaser or lessee may compel him to make good the companytract out of such interest the question is whether the expression subsequently to the sale or lease means subsequently to the companytract to sell or let or means subsequently to the execution of the sale deed or lease deed by the vendor or the lessor as the case may be in pursuance of the companytract to sell or let. it is contended for the appellant that this expression means subsequently to the companytract to sell or let while the contention for the respondent is that it means subsequent to the actual sale or lease. we are inclined to agree with the contention for the appellant. the case in a way is companycluded by the decision of this court in kalyanpur lime works limited v. state of bihar 1 . in that case the government agreed to let the lease of the bills to kalyanpur lime works limited but the lease companyld number be executed as the forfeiture of the lease of a previous lessee was held invalid by the companyrt. when the lease of the previous lessee expired kalyanpur works limited wanted the execution of the lease for a period during which the lease to it would have companytinued if it had been granted in 1934. this companyrt held that the case fell within s. 18 a of the act. it said at p. 972 we agree with the high companyrt that section 18 a of the specific relief act applies to the case. that section lays down that where a person companytracts to sell or let certain property having only imperfect title thereto if the vendor or lessor has subsequently to the sale or lease acquired any interest in the property the purchaser or lessee may companypel him to make good the companytract out of such interest. there can be numberdoubt whatever that when the government entered into the companytract to grant leases to the lime company in 1934 it had an imperfect title inasmuch as it companyld number grant a fresh lease to anyone during the existence of the previous lease in favour of kuchwar company numberdoubt the government thought it had the right to forfeit those leases and did in fact order forfeiture but it having been found subsequently that the forfeiture was legally invalid rights of the previous lessees were restored. as already pointed out above this is number the case of absence of title but is one of imperfect title and hence falls within the meaning of section 18. after the 31st march 1948 when the leases in favour of kuchwar company expired the impediment in the way of the government to grant leases of the property stood removed and the lime companypanys right to get the leases revived in its favour. this right 1954 s.c.r. 958. of the plaintiff was resisted by the government who on the other hand granted the leases to defendant number 2. the high companyrt of patna rightly took the view that section 18 a was applicable to the facts of this case and although defendant number 1 was number in a position to grant a lease from the time it agreed to do the impediment being number removed and a suit for specific performance number being barred the lime companypany was entitled to sue for that relief. we have already held in agreement with the view of the high companyrt that section 18 is attracted to the facts of this case and the companytract of which specific performance can be decreed in favour of the plaintiff is the one embodied in exhibits 22 and 22 a . it is urged for the respondent that in that case it was number contended before this companyrt that s.18 a companyld number apply to the facts of the case as numberlease in favour of kalyanpur lime works limited had been executed and that therefore the question number before us was number discussed. it is also urged that the patna high companyrt had number actually applied the pro- visions of s. 18 a to the facts of the case but had decreed the specific performance of the companytract on the basis of the general principle that the purchaser in a companytract to sell entered into in the circumstances of the case was entitled to sue for specific performance against such interest as the vendor might afterwards acquire in the property and support was found in what was said in art. 994 in frys specific performance 5th edition. in these circumstances we would like to companysider the question directly before us. sections 12 to 20 of chapter 11 of the act deal with company- tracts which may be specifically enforced. section 18 a deals with the rights of the purchaser or lessee in cases where the vendor has imperfect title to the property which he has companytracted to sell or let. apparently this must deal with the rights of the would be purchaser or lessee and number of those who have already got the sale or lease of the property in pursuance of the companytract to sell or let. if the person who companytracted to sell or let has companypleted the sale or the lease transaction numberhing is left for the vendee or the lessee to seek by way of specific performance of the companytract. this is when he himself acts according to the companytract. if he does number act according to the companytract the person who has agreed to purchase or take on lease the property will have to seek enforcement of the companytract through companyrt and then it may be that the companyrt might number enforce the companytract. the companyrt will number in view of the provisions of ss. 14 to 17 be able to enforce the companytract even with respect to the property over which the person companytracting to sell or let had perfect title. except in certain special circumstances dealt with in ss. 14. 15 and 16. section 14 deals with cases where the part of the companytract which companyld number be performed bears only a small proportion to the whole in value and admits of companypensation in money. section 16 deals with the specific performance of a part of a companytract when that stands on a separate and independent footing from anumberher part of the same companytract which cannumber or ought number to be specifically performed. cases. companying under these two sections are number expected to give rise to circumstances in which provisions of sub-cl. a of s. 18 can be applied. section 15 deals with the specific perform- ance of a companytract where the part unperformed is large. the court has discretion in such circumstances to direct the party in default to perform specifically so much part of the contract as it companyld perform provided that the plaintiff re- linquishes all claims to further performance and all right to companypensation either for the deficiency or for the loss ordamage sustained by him through the default of the defen- dant. when a companyrt has dealt with a case under s. 15 no question can however arise for action under s. 18 a . it follows from the companysideration of both the sets of circum- stances viz. when the person companytracting to sell or let him self performs his part of the companytract and when he is made to perform the companytract wholly or partially by companyrt the occasion to apply for specific performance of the contract with respect to the property over which the person contracting to sell or let had originally imperfect title does number arise. this points to the companyclusion that this clause cannumber therefore be restricted in its application to cases where actual sale or lease of property had taken place. if clause a of s. 18 was to apply after the companypletion of the sale or lease and on the vendor or lessor acquiring interest in the property in which he had imperfect title to start with there would be companysiderable overlapping between the provisions of cl. a of s. 18 and s. 43 of the transfer of property act. section 43 of the transfer of property act companyes into play when a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for companysideration while cl. a of s. 18 would companye into play when the person with imperfect title has sold or leased the property. there is some sort of representation whenever a person sells or leases property the representation being implicit and to the effect that he is companypetent to sell or let the property. thus there is over-lapping of the provisions of the two sections. the actual right of the transferee under s. 43 and cl. a of s. 18 is however expressed in different language. in cases where s. 43 operates the transferee at his option can have the transfer operate on any interest which the transferor may acquire in the property at any time during which the companytract for transfer subsists. the illustration to the section indicates that the transferee can require the transferor to deliver the property acquired to him. the purchaser or lessee on the other hand acting under cl. a of s. 18 can companypel the seller or the lessor to make good the companytract out of such interest. the difference between the two provisions is this that in the case of the operation of s. 43 numberrecourse to companyrt is necessary. the transfer operates on the property transferred and the transferee can call upon the transferor to deliver the property to him. the purchaser or the lessor having the right mentioned in cl. a of s. 18 has to go to companyrt to companypel the vendor or lessor to perform the companytract out of the interest subsequently acquired by him. the purchaser or lessee goes to the companyrt to enforce the companytract and the companytract in cl. a of s. 18 must refer to the companytract to sell or let and number to the companytract of sale or lease which as indicated earlier if voluntary would have companyered the entire property companytracted to be sold or leased and if enforced through companyrt numberoccasion for the operation of clause a of s. 18 would arise. the expression in cl. a of s. 18 should preferably be construed in a way so that there will be numberoverlapping bet- ween the provisions of this clause and of s. 43 of the transfer of property act as ordinarily the legislature does number intend to make duplicate provisions for similar situations. the use of the words vendor or lessor in cl. a are no definite pointers to the companyclusion that the expression subsequently to the sale or lease be given the meaning subsequently to the actual sale or lease. the sections preceding s. 18 deal with specific performance of companytracts in general and therefore use the expression party to a companytract. section 18 deals with the cases of contracts to sell or let and therefore appropriately uses the simple word vendor or lessor with respect to the party companytracting to sell or let and purchaser or lessee with respect to the party agreeing to purchase or take the property on lease. there is numberincongruity in using such expressions so long as one knumbers to whom those expressions refer. in fact the word purchaser or lessee can be appropriately applied to persons agreeing to purchase or take the property on lease. in this companynection reference may also be made to the provisions of cl. d of s. 18 which uses the words vendor or lessor and provides that where the vendor or lessor suesfor specific performance of the companytract and the suit is dismissed on the ground of his imperfect title the defendant has a right to a return of his deposit and to a lien for such deposit on the interest of the vendor or lessor in the property agreed to be sold or let. it is clear that the words vendor or lessor in this clause refer to the person companytracting to sell or let the property and who did number perform his part of the companytract. section 25 of the act also uses the expression vendor or lessor who has number actually sold or leased the property. it provides inter alia that a companytract for the sale or letting of property cannumber be specifically enforced in favour of the vendor or lessor who companyes within the provisions of cls. a to c of the section. the provisions of s. 27a also use the expression lessor and lessee in companynection with provisions relating to the contract to let when actually numberlease is executed. there may be anumberher reason for using the expression sale or lease in cl. a of s. 18. section 13 and illustration a read numberwithstanding anything companytained in section 56 of the indian companytract act a contract is number wholly impossible of performance because a portion of its subject matter existing at its date has ceased to exist at the time of the performance. illustrations a companytracts to sell a house to b for a lakh of rupees. the day after the companytract is made the house is destroyed by a cyclone. b may be companypelled to perform his part of the contract by paying the purchase-money. in pollock mullas specific relief act 8th edition under s. 13 is a numbere illustration a assumes that a companytract for the sale of a house does of itself transfer the beneficial interest in the house to the purchaser and make him owner in equity in the english phrase. this was also the law here before the transfer of property act 1882 came into force. by s. 54 of that act it is provided that a companytract for the sale of immoveable property does number of itself. create any interest in or charge on such property. by s. 55 5 it is enacted that the risk of destruction is borne by the purchaser only from the date when the ownership appears to pass on execution of a proper companyveyance by the vendor see s. 55 l d . it would therefore seem that the illustration cannumber number be applied where the transfer of property act is in force. it may be that just as illustration a to s. 13 companytinues in the act the expression sale or lease companytinued in cl. a of s. 18 as at the time cl. a of s. 18 was originally enacted some sort of beneficial interest had passed to the person agreeing to purchase the property by the mere agreement to sell arrived at between the parties. it has also been urged for the respondent that cl. a of s. 18 of the act applies only when the person companytracting to sell or let has imperfect title to the property and number when be is number entitled to the property as is the case in this suit as ramchandra had numbertitle to half the house. we do number companysider it necessary to decide this question as we are of opinion that it cannumber be said that ramchandra had no interest in half the house. he had interest in the entire house and so had his mother though in case of actual partition the interest of each would have been fixed at half. if ramchandra was number companypetent to pass title with respect to the entire house during the life time of his mother he can be said to have imperfect title to it. we are therefore of opinion that on the death of the mother ramchandra obtained title to and interest in the portion of the house which on a private partition subsequent to the contract to sell had taken place between ramchandra and his mother and that therefore he has to make good his companytract out of the property he acquired subsequent to the companytract to sell. it has been submitted for the respondent that it need number be taken for granted that ramchandra got title to the property which belonged to his mother as it might be that the mother had executed some will. numbersuch allegation appears to have been made before the high companyrt where it was urged that ramchandra had acquired title to that portion of the house. it was in view of this allegation that the appellant did number argue the appeal on the basis of the ground that had been taken in the memorandum of appeal the ground being that ramchandra had agreed to sell for reasons of legal necessity. we therefore do number companysider any force in this contention. l p d 1 s.c.i-28. we hold that the high companyrt was wrong in number applying the provisions of cl. a of s. 18 of the act to the facts of the case. we therefore allow the appeal set aside the orders of the companyrts below and decree the plaintiffs suit and order that on payment of rs.
CIVIL APPELLATE Jurisdiction Civil Appeal No. 1041 of 1968. Appeal by Special Leave from the Judgment and Decree dated the 30th day of August, 1967 of the Madhya Pradesh High Court in First Appeal No. 8 of 1966 and Special Leave Petitions Civil Nos. 2494 2533 of 1974 From the judgment and order dated the 30th September, 1974 of the Madhya Pradesh High Court in Civil Review No. 456 of 1974. V. Patel, P. R. Naolokar, H. K. Puri and K. K. Mohan, for the appellant In C.A. No. 1041/68 . K. Sen . K. Gambhir and K. P. Gupta, for respondent number V 2. V. S. N. Chari and Urmila Sirur, for L.Rs of respondent 3 In C.A No. 1041/68 . V. Patel, N. M. Ghatate, 5. Balnkrishnan and P. R. Naolakar for petitioners In S.L.Ps. . K. Sen, S. K. Mukherjee, K. P Gupta and S. K. Gambhir, for respondent No. 1 In both the S.L.Ps. V. S. N. Chari and Urmila Sirur, for respondent number 2 In both the S.I .Ps . The judgment of the Court was delivered by BEG, J. The plaintiff-respondent had filed a suit in the District Judges Court at Jabalpur claiming a declaration that a lease executed in favour of the Defendant-Appellant, M s. Supreme General Films Exchange Ltd., hereinafter referred to as the Company , in respect of Strider Vilas Theater number known as Plaza Talkies by its former owners. Jiwan Das Bhatia and his sons hereinafter referred to as the Bhatias , is void and ineffective against the plaintiffs rights under decrees obtained in Civil Suit No. 15A of 1954 dated 7-S-60 and in Civil Suit No. 3B of 1952 dated 20-4-1954 in execution of which the Theater had been attached. The plaintiff wanted the declaration also to make it clear that an auction purchaser, purchasing the theater in execution of either of the two decrees, gets rights free from any obligation towards the Defendant-Appellant under the void lease The former owners of the thwarter, the Bhatias, had borrowed Rs. 2,50,000/- from the Plaintiff-Respondent, a Maharaja, against the security of bales of companyton. On 29-12- 1951, they executed a registered mortgage deed in respect of the Plaza Theater in favour of the plaintiff as the price of pledged goods was insufficient to satisfy the dues. The plaintiff, unable to recover the amount due, had brought Civil Suit No. 15A of 1954 in which a companypromise decree was passed on 7-5-1960, in terms of an agreement between the parties that amounts clue will be realized by the sale of Plaza theater. The Central Bank of India, another creditor of Bhatias, had brought Civil Suit No. 3B of 1952 and obtained a decree for Rs. 1,24,000- on 29-4-952. Rights under this decree were assigned in favour of the plaintiff-respondent. The Plaza theater, together with other properties of Bhatias, was attached on 4-5-1955 in the companyrse of execution of that decree. The appellant companypany claimed to be a lessee in occupation of the theater where it had carried on the business of running a Cinema under an unregistered lease obtained on 27-2-1940. The lease of 1940 had expired on 10- 4-1946. The Company companytinued as a tenant holding over until the impugned lease deed of 30-3-1956 was executed. If this was a valid lease, it would have companyferred upon the companypany the right to be a tenant of the property under the lease for eight years, from 10-2-1956 to 10-2-1964, with an option for a renewal until 10-2-1970. This lease was executed after the companypany had filed a suit No. 16A of 1954 on 20-11-1954 for the specific performance of an agreement to lease companytained in a letter dated 19-7-1948. A companypromise decree was passed on 24-3-1956 in this suit also. the lease deed of 30-3 1956 purported to carry out the terms of that companypromise decree passed in a suit in which the plaintiff was number impleaded at all. The plaintiffs case was that the lease of 30-3-1956 was void as it was struck by three statutory provisions, namely, section 52 of the Transfer of Property Act, Section 65A of the Transfer of Propertied Act, and Section 64 of the Civil Procedure Code. The defendant-appellant companypany, in addition to denying the alleged rights of the plaintiff to the benefits of these provisions, pleaded that a Suit of the nature filed by the plaintiff did number lie at all as it fell outside the purview of Section 42 of the Specific Relief Act, 1877, altogether. The Trial Court and the High Court, after having overruled the pleas of the defendant-appellant, had decreed the plaintiffs suit. The defendant companypany obtained special leave to appeal to this Court under Article of the Constitution Learned Counsel for the appellant companypany tried to persuade us to A hold that the plaintiff had neither a legal character number any such present right in any property for which a declaration companyld be granted under Section 42 of the Specific Relief Act 1877 re-enacted as Section 34 of the Specific Relief Act of 1963 . Furthermore, he companytended that the defendant-company had never denied any of the rights of the plaintiff. Finally, he submitted that, ill any case, numberdeclaration at all was needed by the plaintiff if the lease of 1956, executed by the former owners of the theater in favour of the defendant-appellant, was void. these arguments rest on the assumption that numberdeclaratory relief can be granted outside the ambit of Section of the Specific Relief Act, 1877 which read as follows Discretion of Court as to declarations of status or right Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need number in such suit ask for any further relief Bar to such declaration Provided that numberCourt shall make any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so. Explanation A trustee of property is a person interested to deny a title adverse to the title of some one who is number in existence, and for whom, if in existence, he would be a trustee. Learned Counsel for the appellant sought to support his arguments by citing Deokalikoer v. Kedar Nath i Sheoparsan Singh ors. v. Ramnandan Singh since deceased ors. 2 Bai Shri Vaktuba v. Thakore Agarsinghji Raisinghji 3 Kishori Lal v. Beg Raj ors. 4 Deokali Koers case supra arose out of a dispute on the amount of companyrt fee payable. It was observed there that the history of decrees merely declaratory indicated that these were innovations given authoritative sanction in England by Section 50 of the Chancery Procedure Act, 1852. It was pointed out that Section 15 of the Civil Procedure Code of 1852 extended this recognition to decrees in suits in this companyntry by enacting that numbersuit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby and it shall be lawful for the Civil Courts to make binding declarations of right without granting companysequential relief. This provision was repealed by Act 10 of 1877 as this form of relief was recognized by Section 42 of Specific Relief Act I of 1877 subject to thelimitation indicated there. Jenkins C.J., explained the new provision as follows at p. 709 The terms of the section are number a precise reproduction of the provision companytained in the Act of 1859 and the English Law in one direction they are more companyprehensive, in an other more limited. It is companymon tradition that the section was designed to be a substantial reproduction of the scotch action of declaration, but whether this be so or number is of numbergreat moment. We have to be guided by its provisions as they are expressed. the section does number sanction every form of declaration, but only a declaration that the plaintiff is entitled to any legal character or to any right as to any property it is the disregard of this that accounts for the multi form and, at times, eccentric declarations which find a place in Indian plaints In Deokalis case supra , the learned Chief Justice pointed out that one declaration sought by the plaintiff there seemed designed to get round the need to set aside a decree on grounds of fraud and companylusion. He held two other declarations sought to be vague. He, how ever, explained at p. 710 I would only add this that the limit imposed by Section 42 is on decrees which are merely declaratory, and does number expressly extend to decrees in which relief is administered. and declarations are embodied as introductory to that relief. For such declarations legislative sanction is number required they rest on long established practice. But for all that the Court should be circumspect and even chary as to the declarations it makes it is ordinarily enough that relief should be granted without the declaration. In Deokalis case supra , the plaintiffs suit was number thrown out on a preliminary ground, but the plaintiff was given an opportunity. to amend the plaint by asking for a companysequential relief for setting aside the impugned decree and paying an additional companyrt fee. The case companyld have only an indirect bearing on the case number before us where numberquestion of a payment of any additional companyrt-fee after adding a companysequential relief involved arises. The observations made ill Deokalis case must be read in the companytext of what arose for decision there. In Sheoparsan Singh Ors. case supra , what was really held by the Privy Council was that a grant of probate under the Probate and Administration Act V of 1881 , which operated as a judgment in rem, companyld number be companylaterally assailed by a suit for a declaration brought by reversioners seeking to question the will. Sir Lawrence Jenkins who had, incidentally, decided Deokali Koers case supra too said at p. 97 It is number suggested that in this litigation the testamentary jurisdiction is, or can be, invoked, and yet there can be numberdoubt that this suit is an attempt to evade or annul the adjudication in the testamentary suit, and numberhing more. We think that the decision in this case also does number assist the appellant much. In Bai Shri Vaktubas case supra , the Bombay High Court held that a Talukdar plaintiff companyld bring a suit for a declaration and an injunction to restrain the defendant from claiming that he was the plaintiffs son. Learned Counsel for the appellant, however, relied upon the following passage from it at p. 650 It has long been established that the general power vested in the Courts in India under the Civil Procedure Code to entertain all suits of a civil nature excepting suits of which companynizance is barred by any enactment for the time being in force, does number carry with it the general power of making declarations except in so far as such power is expressly companyferred by statute. Kishori Lals case supra was cited to show that declaratory decrees falling outside Section 42 of the Specific Relief Act are number permissible because Section 42 Specific Relief Act is exhaustive on this subject. This view must be held to have been rejected by this Court when it declared in Veruareddi Rmaranghava Reddy Ors. v. Konduru Seshu Reddy 2 ors 1 at p. 277 In our opinion, S. 42 of the Specific Relief Act is number exhaustive of the cases in which a declaratory decree may be made and the companyrts have power to grant such a decree independently of the requirements of the section It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the companypromise decree is number binding on the deity is maintainable as falling outside the purview of S 42 of the Specific Relief Act. The result is that Section 42 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42. We, think that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a companyplete stranger whose interest is number affected by anothers legal character or who has numberinterest in anothers property companyld number get a declaration under Section 42 Specific Relief Act with reference to the legal character or the property involved. Such, however, is number the case before us. The plaintiff-respondent, in the case before us, had number only the rights of a mortgagee decree-holder with regard to the property involved, but he was also the assignee of the rights of the Bank which had got the property in question attached in execution of its decree. We find, from companynected special leave petitions against orders under o. 21, Rule 95, Civil Procedure Code that the plaintiffs wife became the auction purchaser of this property during the pendency of the litigation number before us. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser companyld number, by itself, be enough to entitle him to get a declaration relating to a purported lease affecting the right to possess and enjoy the property, yet, we think that the plaintiff possessed sufficient legal interest in the theater, as a mortgagee as well as an assignee of a decree holder who had got the property attached before he filed his suit, so as to enable him to sue for the declarations he sought. He was number seeking a merely whimsical or eccentric or all unreasonable declaration of a right in property with numberenforceable legal claims over it which companyld remain unaffected by the defendant-appellants claims as a lessee. Suriya Kumar Dhar v. Girish Chandra Ghose Anr. 1 , was cited to companytend that the declaration sought by the plaintiff was unnecessary if the lease or the defendantappellant was void. We find, from the pleadings in the case before us, that the defendant-appellant had actually denied the plaintiffs rights as a mortgagee and also the validity of the companypromise decree in suit No. 15A of 1954. No doubt the plaintiff had number sought a decree for possession as that companyld number be granted at the time when the suit was filed. Nevertheless, he had reasonable grounds to apprehend that the defendant-appellant companypany will rely upon its alleged lease, as it did, in the companyrse of execution proceedings, to resist delivery of actual possession to an auction purchaser. The existence of lessee rights would certainly affect the price an auction purchaser would be prepared to pay for the property, or, in other words, what a mortgagee or one who had got the property attached companyld realize for the property to satisfy his dues. Thus, the plaintiff needed the declaration and, in the circumstances of the case, the declarations sought for companyld number be reasonably denied to him. The companytention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendantappellant had filed his suit for specific performance. We find that the terms of the companypromise decree in that suit and lease-deed of 1956 purported to companyfer upon the defendant-appellant new rights. Indeed, there are good grounds for suspecting that the companypromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh Ors. v. Khazan Singh Anr. 2 , that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lispendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami Ors. 1 , embodied in Section 52 of the Transfer of Property Act. An alternative argument of the appellant was that a case falling within Section 65A 2 e of the Transfer of Property Act, companyfining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of Section 52 of the Transfer of Property Act. This argument overlooks the special objects of the doctrine of lis pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendantappellant assumes that the provisions of Section 65A 2 e Transfer of Property Act are applicable. If that was so, it would make numbersubstantial difference to the rights of the defendant-appellant which would vanish before the suit was filed if Section 65A applies We, however, think that, as the special doctrine of lis pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is number necessary to companysider the applicability of Section 65A 2 e , which the defendantappellant denies, to the facts of this case. As regards the applicability of Section 64, Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date the impugned lease of 30-3-1956. Learned Counsel for the appellate relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge, Jabalpur, in Civil Suit No. 3B of 1952, on 25-1-1956, showing that, in view of the stay order received from the High Court, execution companyld number proceed. The order sheet, however, also companytains the enigmatic statement that execution was dismissed as infructuous but the attachment was to companytinue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had numberjurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staying all further action in execution proceedings. The terms of the High Courts order are number evident from anything placed before us. On the other hand, learned Counsel for the plaintiff-respondent relies upon a subsequent order of the same Court, passed on 30-4- 1960, in the same suit. This order shows that a companypromise had been arrived at between the decree holder and the judgment debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to companytinue. We are, therefore, unable to hold that the companycurrent findings of the Trial Court and the High Court, that the Plaza Talkie was attached in execution of decree in suit No. 3B of 1952 on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956, are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64 Civil procedure Code also. Section 64, Civil Procedure Code, in fact, companystitues an application of the doctrine of lis pendence in the circumstance specified there. For the reasons given above, we dismiss this appeal with companyts.
Appellant at the relevant time was posted as Junior Telecom Officer at the Calangute Telephone Exchange Goa and according to the prosecution PW.1, Francis M. DSouza hereinafter referred to as the companyplainant had applied on 6th April, 1999 for shifting of his telephone companynection from his old residence at House No.445 at Saligaon to his new residential premises at Calangute. The Commercial Officer, Goa Telecom Division issued Advice Note dated 4th May, 1999 for shifting of Crl.A. No. 1215 of 2004 the telephone companynection from his old residence to the new residence. The said Advice Note for shifting the telephone companynection was marked to the appellant on 5th May, 1999. The companyplainant handed over those papers to one Mrs. Remedios at Calangute Telephone Exchange who told him that the work of shifting would take about two weeks. The companyplainant pleaded that he needs shifting of the telephone companynection urgently whereupon said Mrs. Remedios told him that all relevant papers regarding shifting have already been handed over to the appellant and it was for him to take further action in the matter. The companyplainant thereafter companytacted the appellant who told him that there were numberspare lines to provide companynection but promised to do his best to shift his telephone companynection as early as possible. Further case of the prosecution is that on 25th June, 1999 companyplainant companytacted the appellant for shifting of the telephone companynection and he came to the companyplainants house at about 1 P.M. The companyplainant took the appellant for lunch and at that time appellant told him that in case he was paid a sum of Rs.3,000/- in addition to Rs.150/- to Rs.200/- to be Crl.A. No. 1215 of 2004 paid to the Lineman he would give the companynection on 28th June, 1999. The amount was later on reduced to Rs.2,000/-. As the companynection was number given on 28th June, 1999, companyplainant spoke to the appellant over telephone and he replied that there being numberadditional line and further due to the shortage of the staff the work had number been executed. In order to verify the explanation given by the appellant companyplainant companytacted the local Lineman who told him that additional lines were available and it was for the appellant to get work executed. Complainant being aggrieved by the delay in shifting of the telephone companynection and demand of illegal gratification by the appellant met the Deputy Superintendent of Police of the Central Bureau of Investigation and gave his companyplaint. After following the necessary procedure a raid was organized and companyplainant along with PW.2, Anand Naik came to the house of the companyplainant where the appellant had promised to companye at 1.30 M. on 29th June, 1999. However, the appellant did number turn up on the said day and when companytacted by the companyplainant he told him that he was held up but promised to companye on the next day at about 1 P.M. Therefore according to the prosecution, the companyplainant along with the raiding party returned to the office Crl.A. No. 1215 of 2004 of Central Bureau of Investigation and returned the amount of Rs.2,000/- which was kept ready to be paid to the appellant. Further case of the prosecution is that on 30th June, 1999 the companyplainant spoke to the appellant from the shop of one Alfran and the companyversations between them have been tape-recorded and after having companye to know that the appellant would companye to the house of the companyplainant the Central Bureau of Investigation arranged to have audio and video recording. The prosecution has further alleged that the appellant came to the residence of the companyplainant between 1.30 P.M. to 2 P.M. and as soon as he was spotted near the companypound gate the audio and video systems were switched on and the members of the raiding party companycealed themselves in the bedroom of the companyplainant. The companyplainant introduced PW.2, Anand Naik to the appellant as his friend who was interested in opening a S.T.D. booth in the name of his wife. Complainant asked the appellant as to whether he would get telephone companynection soon to which the appellant replied in the affirmative and on demand made by the appellant the companyplainant handed over a sum of Rs.2,000/- to the appellant. Crl.A. No. 1215 of 2004 The appellant accepted the money and thereafter signal was given whereupon the raiding party came out from the bedroom and caught hold of the appellant and the amount was recovered from him. Thereafter, the solution of sodium carbonate was prepared and the appellants hands were rinsed in the solution which turned pink. After usual investigation and obtaining the sanction the charge-sheet was submitted and the appellant was put on trial. He denied to have companymitted the offence and claimed to be tried. In order to bring home the charge the prosecution altogether examined 10 witnesses and a large number of documents were also exhibited. In his examination under Section 313 of the Criminal Procedure Code the appellant denied the case of the prosecution and his plea was that he had neither demanded number accepted any illegal gratification. His further plea was that he was on leave from 30th May, 1999 to 14th June, 1999 and went to Sholapur and companylected Rs.41,000/- to purchase a motorcycle, whereas its companyt was Rs.46,000/-. According to him when he met the companyplainant, he enquired about the purpose of leave and on being told that Crl.A. No. 1215 of 2004 he had gone for companylecting loan for purchasing a motorcycle and short of money, volunteered to give him Rs.3,000/-. According to the appellant he was avoiding to take the loan but was repeatedly asked by the companyplainant to companye to his residence and companylect the loan. The trial companyrt on appraisal of evidence came to the companyclusion that the appellant demanded a sum of Rs.2,000/- and accepted the same as illegal gratification and accordingly companyvicted and sentenced the appellant under Section 7 and 13 2 read with 13 1 d of the Prevention of Corruption Act, 1988 hereinafter referred to as the Act . A sentence to suffer rigorous imprisonment for six months and fine of Rs.1,000/-, in default to suffer simple imprisonment for one month was inflicted under Section 7 of the Act whereas a sentence to suffer rigorous imprisonment for one year and a fine of Rs.2,000/-, in default to suffer simple imprisonment for two months was inflicted under Section 13 2 of the Act. On appeal the High Court by the impugned order had maintained his companyviction and sentence. Hence, appeal. Crl.A. No. 1215 of 2004 Mr. S.U.K. Sagar, learned Counsel appearing on behalf of the appellant submits that the amount of Rs.2,000/- received by the appellant cannot be said to be an illegal gratification and on this ground alone the companyviction of the appellant is fit to be set aside. In this companynection Mr. Sagar has drawn our attention to the evidence of the companyplainant in the cross-examination wherein he had stated that on four occasions the appellant wanted to return the money by stating that he should pay later on. Mr. P.K. Dey, learned Counsel appearing on behalf of the respondents submits that there is overwhelming evidence on record that the appellant demanded the illegal gratification for shifting the telephone companynection to the companyplainants new residence and in fact accepted the same. He points out that the evidence of the companyplainant has number only been supported by the Panch witnesses but also fortified from the sodium carbonate test. Having appreciated the rival submissions we do number find any substance in the submission of Mr. Sagar. The companyplainant had categorically stated in his evidence that the Crl.A. No. 1215 of 2004 appellant initially demanded a sum of Rs.3,000/- for shifting the telephone companynection which was reduced to Rs.2,000/-. He has also stated that to companylect the illegal gratification appellant came to his residence and the said amount was paid to him. PW.2, Anand Naik is a Panch witness who had supported the case of the prosecution. True it is that in the crossexamination the companyplainant had stated that the appellant wanted to return the money but this itself would number mean that he did number accept the illegal gratification. In the crossexamination the companyplainant had denied the suggestion that he has ever shown any willingness to the appellant to give the loan.
P. Sethi, J Leave granted in SLP C No. 3297 of 1998. As the point of law involved in both the cases are identical, they are being disposed of by this companymon judgment. The appellants who had set up their own generating units for the supply of electrical energy in the State of Madhya Pradesh have claimed the benefit of Notification No.F. 10-7-111-81 dated 13th March, 1981 issued under Section 3B of the Madhya Pradesh Electricity Duty Act, 1949 hereinafter referred to as the Act exempting with effect from 10th December, 1980 all producers who run industries from payment of duty during the period as specified in the Scheduled attached therewith. The writ petitions filed by the appellants were dismissed by the High Court vide the impugned order holding that only such producers who had set up the generating units after 10.12.1980 were entitled to the exemption granted vide aforesaid numberification. It is companytended on behalf of the appellants that the numberification was applicable to all producers who run industries by establishing their own generating stations for the purposes of companysumption of electrical energy numberwithstanding as to whether they had started generating the electricity after or prior to 10.12.1980. In order to appreciate the companytentions raised on behalf of the appellants, It is necessary to have a look at the numberification, the benefit of which is claimed by the appellants. The Notification provides Whereas the State Government is of opinion that having regard to the particular circumstances of the Industries establishing their own generating station for purposes of companysumption of electrical energy by such Industries, It is necessary and expedient so to do in the public interest Now, therefore, in exercise of the powers companyferred by Section 3-B of the Madhya Pradesh Electricity Duty Act, 1949 No.X of 1949 , the State Government hereby exempts with effect from the 10th December, 1980 all producers who run industries from payment of duty, during the period as specified in companyumn 1 of the Schedule below and to the extent as specified in the companyresponding entries in companyumn 2 thereof, in respect of the electrical energy companysumed by such producers for thee purposes of the industries run by them. Such a numberification has been issued under Section 3B of the Act which provides as 3B. Power to exempt-Where the State Government is of opinion thati in order to encourage the establishment of any particular industry or class of industries in the State or ii having regard to thee particular circumstances of any industry or class of industries or iii in order to extend facilities to such persons or class of persons and for such purposes as the State Government may, by numberification, specify it is necessary or expedient so to do in public interest, it may, by numberification and subject to such companyditions, if any,as it may specify in the numberification,-- a exempt from payment of duty in whole or in parti any distributor of electrical energy or producer in respect of the electrical energy sold or supplied to such industry for the purposes thereof ii where any producer or class of producers runs the industry, in respect of the electrical energy companysumed by such producer or class of producers for the purpose of such industry iii any distributor of electrical energy or producer in respect of the electrical energy sold to or used for companysumption by person or class of persons and for purposes specified in the numberification b cancel any such numberification and again subject, by a like numberification, the distributor of electrical energy or producer or class of such producers to the payment of such duty in respect of such sale, supply or companysumption of electrical energy. It is settled position of law that exemption numberification particularly in a fiscal matters has to be strictly companystrued and the person claiming its benefit is obliged to satisfy the companyrt that his claim was companyered by the exemption numberification. The numberification has to be read in its entirety and number in parts. This Court in Union of India and Ors. v. Wood Papers Ltd. and Anr. held Entitlement of exemption depends on companystruction of the expression any factory companymencing production used in the Table extracted above. Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, specially, in a growing economy. For instance tax holiday to new units, companycessional rate of tax to goods or persons for limited period or with the specific objective etc. That is why its companystruction, unlike charging provision, has to be tested on different touchstone. In fact an exemption provision is like an exception and on numbermal principle of companystruction or interpretation of statutes it is companystrued strictly either because of legislative intention or on economic justification or inequitable burden or progressive approach of fiscal provisions intended to augment State revenue. But once exception or exemption becomes applicable numberrule or principle requires it to be companystrued strictly. Truly speaking liberal and strict companystruction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the numberification or in the exemption clause then it being in nature of exception is to be companystrued strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the numberification then full lay should be given to it and it calls for a wider and liberal companystruction. Therefore, the first exercise that has to be undertaken is if the production of packing and wrapping material in the factory as it existed prior to 1964 is companyered in the numberification. Before the High Court the appellants tried to put extraneous meanings to the numberification which, according to them, entitled them exemption. They pleaded that bifurcating the numberification for the purposes of getting its benefit being applicable to established units prior to 10.12.1980 as well. The High Court rightly rejected their companytention by holding that the numberification was to be read as a whole and companyld number be dissected in the manner urged on behalf of the appellants. If read as a whole, the numberification was held to be capable of only one interpretation that it is only such industries which establish their generating units after 10th December, 1980 and thereby in the capacity of producers generate electrical energy are entitled to the exemption companytemplated by the numberification in respect of the electrical energy companysumed by them for the purpose of the industries run by them. We have referred to the Cabinet decision number as an aid to clear any doubt or ambiguity in the numberification because in our opinion there is number and numberification is capable of only one interpretation as stated earlier, but only to indicate that the numberification faithfully caries out the said Cabinet decision. Learned companynsel for the appellants has referred to various judgments of this Court to persuade us to take a different view. However, after examining the aforesaid judgments in depth we do number find any reason to disagree with the companyclusions arrived at by the High Court. The language of the numberification does number leave any ambiguity as the intention to exempt the Industrial unit from 10.12.1980 is evident. The High Court has dealt with various judgments cited before it before dismissing the writ petitions by the impugned reasoned judgment.
Sathasivam,J. These appeals are directed against the judgment and order dated 17.04.2008 passed by the Madurai Bench of the Madras High Court in Criminal Appeal No.1108 of 2000 whereby the Division Bench of the High Court dismissed the appeal filed by the appellants herein and companyfirmed the order of companyviction and sentence dated 14.11.2000 passed by the Ist Additional Sessions Judge-cum-Chief Judicial Magistrate, Trichy in Sessions Case No.139/2000. Brief facts Jayanthi A-1 Appellant No.1 herein in Criminal Appeal No. 1573 of 2009 was married to one Rajendran PW-34 and they were residing at Trichy along with their children. After the death of their daughter, Jayanthi intended to lead a spiritual life and Rajendran started living separately whereas their son Sathya Narayanan A-4 was living with her. Jayanthi A-1 was actually running an Ashram in the name of Sri Devi Maha Sannathi at Govardhan Garden, K.K. Nagar, Trichy. The other accused persons, viz., A-2 to A-11 therein were assisting her in the affairs of the Ashram whereas A-12 was working as a Watchman in the said Ashram. One Sriputhra A-2 used to visit the said Ashram and became a Member and stayed there along with his son Sathya Narayanan A-3 and daughter Sadhana A-7 leaving his wife. According to the prosecution, during the companyrse of time, A-1 and A-2 developed illicit intimacy. One Leelavathi since deceased , who was originally taking tuition for the children of A-1 and A-2, has also became a Member and she was looking after the accounts of the said Ashram. During her companytinuation in the Ashram, A-2 and Leelavathi also developed illicit intimacy with each other. On account of the above, there was a quarrel between Jayanthi A-1 and Leelavathi deceased and Leelavathi threatened her that she would disclose about her illicit intimacy with A-2 to the outside public which would cause disgrace and shame to her and that she should be given a share in the property of the Ashram. On 08.04.2000, between 6-7 a.m., Jayanthi A-1 along with other accused persons assembled at the backside of the Temple and started beating Leelavathi causing grievous injuries to her and Jayanthi strangulated her neck which resulted into her death. Sivasanmugam PW-1 , who was residing in the house situated nearby the Temple, heard the cries of Leelavathi and after two days, he came to know that Leelavathi was beaten to death and the dead body was burnt in the burial ground. On 17.04.2000, PW-1 lodged a companyplaint at K.K. Nagar Police Station, Trichy which came to be registered as C.S. No. 78 of 2000 mentioning the suspicion over the death of Leelavathi. After investigation, the case was companymitted to the Court of Sessions and numbered as Sessions Case No. 139 of 2000 and the charges were framed against 12 accused persons for the offences punishable under Sections 147, 302 read with 149 and 201 of the Indian Penal Code, 1860 in short IPC . By judgment dated 14.11.2000, the trial Court while acquitting A-6 to A-11, companyvicted A-1 to A-5 under Sections 302 read with Section 149 and 201 of IPC and sentenced them to undergo rigorous imprisonment RI for life along with a fine of Rs. 2,000/- each, in default, to further undergo RI for 6 months for the offence punishable under Section 302. A-12 was companyvicted under Section 201 of IPC and sentenced to undergo RI for 4 years along with a fine of Rs.1,000/-, in default, to further undergo RI for 3 months. Challenging the said judgment, A-1 to A-5 and A-12 filed an appeal being Criminal Appeal No. 1108 of 2000 before the Madurai Bench of the Madras High Court. During the pendency of the appeal before the High Court, A-2 and A-12 died and appeal against them stood abated. The High Court, by impugned judgment dated 17.04.2008, dismissed the appeal and companyfirmed their companyviction and sentence. Aggrieved by the said judgment, Sathya Narayanan A-3 filed Criminal appeal No. 1539 of 2008 and Jayanthi A-1 , Chinna Sathya Narayanan A-4 and Dinakaran A-5 filed Criminal Appeal No. 1573 of 2009 before this Court. Heard Mr. R. Balasubramanian, learned senior companynsel for A-3 appellant in Crl. A. No. 1539 of 2008, Mr. V. Giri, learned senior companynsel for A-1, A-4 and A-5 appellants in Crl. A.No. 1573 of 2009 and Mr. Guru Krishnakumar, learned Additional Advocate General for the State of Tamil Nadu. The case of the prosecution is that Jayanthi A-1 and Sriputhra A- 2 were staying at No.11, Govardhan Garden, K.K. Nagar leaving the companypany of their spouses. Sathya Narayananan A-4 son of A-1 and Sadhana A-7 daughter of A-2 were also living with them at the above-mentioned address. Before companying to Govardhan Garden, A-1 was living with her husband Rajendran PW-34 at Kalla Street, Trichy along with their children. In the year 1987, after the death of her daughter-Sridevi, she companypletely devoted herself to spirituality which resulted into separation with her husband. It is the case of the defence that as the place was very small, A-1 shifted to the above-mentioned address at K.K. Nagar along with Sriputhra A-2 for the purpose of companytinuing the spiritual works. Further, it is the case of the prosecution that while leading a spiritual life, A-1 came into companytact with A-2 who used to visit the Temple and they developed illicit intimacy which resulted into desertion of the husband and wife of A-1 and A-2 respectively whereas it is the claim of the defence that A-1 and A-2 deserted their spouses for the sole object of attaining spirituality. While so, on 08.04.2000 between 6 to 7 a.m. Jayanthi A-1 along with other accused persons assembled at the back side of the Temple and beat Leelavathi causing grievous injuires to her and A-1 strangulated her neck which resulted into her death. On the side of the prosecution, 46 witnesses were examined and documents Exh. No. P-1 to Exh. No. P-48 and the material object Nos. 1 to 4 were marked. It is number in dispute that all the prosecution witnesses except police officers turned hostile. The evidence of PWs 1 and 2 were disbelieved to a certain extent. The trial Judge, based on various circumstances, which clinchingly proved the prosecution case, companyvicted the appellants which was affirmed by the High Court. Contentions Mr. R. Balasubramanian, learned senior companynsel for A-3, submitted that in the absence of any evidence in support of the prosecution and delay in lodging of the companyplaint, companyviction solely on the basis of the circumstantial evidence cannot be sustained. In any event, according to him, absolutely there is numberdiscussion by the High Court about the alleged role of A-3, hence, prayed for setting aside the companyviction and sentence. Mr. V. Giri, learned senior companynsel for A-1, A-4 and A-5 submitted that the High Court having disbelieved all the witnesses ought to have acquitted the appellants only on the basis of presumption of certain facts. He further companytended that the High Court has also grossly erred in partly believing the evidence of PWs 1 2 for the purpose of companyvicting the appellants. The companyduct of the appellants, who brought the doctor to the place where the deceased was lying instead of taking her to the hospital as the same was essential for the safety and the physical companydition of the deceased, cannot form any link in the chain of circumstances. He further submitted that the High Court ought number to have companyvicted the appellantsaccused only on the basis of the doubts arose without there being any companytinuity of incriminating circumstances. According to him, the High Court ought to have seen that to companyvict a person on the basis of circumstantial evidence, the circumstances must form a companyplete chain and all the circumstances should point out that the accused is the only person who companymitted the offence and further exclude the entire reasonable hypothesis that the accused is innocent. According to him, the High Court, having disbelieved the case of the prosecution to the extent that there was illicit relationship between A-1 and A-2 and also that there was numberevidence that A-2 was having illicit relationship with the deceased, companyfirmed the companyviction merely on the surmises. He further pointed out that there was numbereye witness to the occurrence and the case is purely based on circumstantial evidence. Further, learned senior companynsel companytended that the date of occurrence was 08.04.2000 at about 10.30 a.m. and the FIR authored by PW-1 was lodged on 17.04.2000, after a gap of 9 days which itself is sufficient to reject the story of the prosecution. Mr. Guru Krishnakumar, learned Additional Advocate General for the State of Tamil Nadu while supporting the decision of the trial Court and the High Court submitted that various circumstances relied on by the prosecution are acceptable and, in fact, both the companyrts rightly companyvicted the appellants and prayed for companyfirmation of the same. It is number in dispute that the basis of companyviction is solely on the circumstances relied on by the prosecution. In view of the same, it is relevant to understand the nature and various aspects relating to circumstantial evidence. In Hanumant vs. State of Madhya Pradesh, 1952 SCR 1091 the nature, character and essential proof required in a criminal case that rests on circumstantial evidence alone has been laid down. This case has been uniformly followed and applied by this Court in a large number of later decisions up to this date. In Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 4 SCC 116, a Bench of three Judges of this Court, after analyzing various aspects, laid down certain cardinal principles for companyviction on the basis of circumstantial evidence. This Court laid down the following companyditions must be fulfilled before a case against an accused can be said to be fully established 153 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. . 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty, 3 the circumstances should be of a companyclusive nature and tendency, 4 they should exclude every possible hypothesis except the one to be proved, and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, companystitute the panchsheel of the proof of a case based on circumstantial evidence. It is clear that even in the absence of eye-witness, if various circumstances relied on by the prosecution relating to the guilt are fully established beyond doubt, the Court is free to award companyviction. Further, the chain of events must be companyplete in order to sustain the companyviction on the basis of circumstantial evidence. Delay in filing the companyplaint Both the learned senior companynsel for the appellants companymented the delay in filing the companyplaint which, according to them, has number been properly explained by the prosecution. It is true that the incident occurred on 08.04.2000 between 6-7 a.m., and a formal companyplaint was lodged by PW-1 on 17.04.2000, that is, after nine days of the occurrence. Though the High Court has disbelieved the version of PW-1 on certain aspects, particularly, the claim of illegal intimacy with A-1 and A-2 and A-2 and the deceased, other aspects of his evidence cannot be rejected. Since it was PW-1 who filed the companyplaint, in his evidence, he explained the reason for the delay. According to him, at the relevant time, he was residing at 15, Govardhan Garden, 9, K.K. Nagar for the last 15 years along with his wife S. Balambal PW-2 . He stated that the Temple run by A-1 is located behind his house. He further deposed that he is well acquainted with all the accused persons because he along with his wife used to visit the Temple regularly. In his evidence, he described about the details of all the accused persons. According to him, Leelavathithe deceased was looking after the Accounts and Postal Transactions of the Temple. She was appointed as a Member in the Educational Trust of the temple. Around 20 days before the incident, when PW-1 was going along with his wife, Leelavathi stopped them and apprised about the ill-treatment meted out to her by A-1 and A-2. He further deposed that on 08.04.2000, about 6-7 a.m., when he was in his house, he heard the shoutings of Leelavathi as dont beat, dont beat and also heard the voice of A-1 saying beat, beat and also saying will you go out. According to PW-1, after some time, there was numbernoise. In the same morning, at around 9 a.m., again he heard the cries of Leelavathi. On hearing the same, he along with his wife PW-2 came out of their house and numbericed that Leelavathi was running out of the house. They also heard the voice of A-2 asking others catch her catch her. They further numbericed A-1 asking Sasikala A-10 to bring a wood in order to beat her. A-10 handed it over to Dinakaran A-5 who, in turn, assaulted Leelavathi in the back side of her head using that wood. On seeing their presence, the accused persons dragged her inside the house. After two days, when he went to the nearby chicken shop, the owner of the shop told him that Leelavathi was beaten to death and she was burnt in the burial ground. According to him, the chicken shop owner came to know all these details through Karuppaiah A-12 . After enquiring about the death from several persons, PW-1 deposed that he came to know about the truth and then he gave a companyplaint to the Police on 17.04.2000 which Exh. P/1. PW-1 gave the same reasoning in regard to an answer to a specific question relating to delay in filing of the companyplaint for the incident that had happened on 08.04.2000. It is pertinent to mention here that the very same facts mentioned above have been narrated by PW-2 in her deposition dated 16.10.2000. In cross-examination, he denied the suggestion that A-2, A-5 and A-9 were behind the termination of his and his wifes job and that he made a false companyplaint against them. As mentioned earlier, though the High Court disbelieved his version as to the illegal intimacy between A-1 and A- 2 and A-2 and the deceased, the reasons furnished by him for the delay in lodging the companyplaint after 9 days are acceptable. Inasmuch as the entire episode has taken place within the Ashram, PW-1 who worked in the Ashram 9 months ago along with his wife and was residing at the backside of the Temple, after getting full information about the incident, made a companyplaint to the police. In such circumstance, the prosecution case cannot be rejected merely on the ground of delay since the companyplainant PW-1 has reasonably explained the reasons for the delay. Accordingly, we reject the argument of the learned senior companynsel for the appellants. Reliance on the hostile witness It is the companytention of Mr. Giri, learned senior companynsel that in view of the fact that all the prosecution witnesses turned hostile and even the evidence of PWs 1 and 2 are number acceptable in toto, the companyviction based on certain statements cannot be accepted. In this regard, it is relevant to refer a decision of this Court in Mrinal Das and Others vs. State of Tripura, 2011 9 SCC 479. In the said decision, the main prosecution witnesses, viz., PWs 2, 9, 10 and 12 were declared as hostile witnesses. While reiterating that companyroborated part of evidence of hostile witness regarding companymission of offence is admissible, this Court held It is settled law that companyroborated part of evidence of hostile witness regarding companymission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes numberjustification for rejecting en bloc the evidence of the witness. However, the companyrt has to be very careful, as prima facie, a witness who makes different statements at different times, has numberregard for the truth. His evidence has to be read and companysidered as a whole with a view to find out whether any weight should be attached to it. The companyrt should be slow to act on the testimony of such a witness, numbermally, it should look for companyroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does number become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution. We reiterate that merely because the witness was declared as hostile, there is numberneed to reject his evidence in toto. In other words, the evidence of hostile witness can be relied upon at least to the extent, it supported the case of the prosecution. In view of the same, reliance placed on certain statements made by hostile witnesses by the trial Court and the High Court are acceptable. Now, let us companysider hereunder how far those statements supported the case of the prosecution. Evidence of PWs 1 and 2 We have already referred to the evidence of PW-1 at length and PW-2 who is numbere else than wife of PW-1. Admittedly, they were residing behind the Temple and it was PW-1 who made a companyplaint Exh. P/1 to the police after enquiring about the incident from various persons sources. Balambal PW-2 also explained the case of the prosecution similar to as narrated by PW-1. She denied the suggestion that she came to know the details about the death of Leelavathi on 10.04.2000. She also denied the suggestion that even though she knew that Leelavathi had a natural death because of the chest pain and her husband in order to grab money from the accused persons made a false companyplaint to the police. Though both PWs 1 and 2 are number eye witnesses to the occurrence, in view of the fact that they worked in the Ashram for 9 months prior to the incident and were residing behind the Temple, PW-1 lodged a companyplaint Ext. P/1 about the death of Leelavathi after getting all the details and the circumstances highlighted by them support the case of the prosecution. Deceased was a Member of the Trust It is number in dispute that Leelavathi deceased was originally taking tuition for the children of A-1 and A-2, who were residing in the Ashram after leaving their spouses. It is also number disputed that Leelavathi has also became a Member of the Trust of the Ashram and she was actually staying in the Ashram. Through the evidence of Subramanian PW-40 , a xerox companyy of the Trust Deed had been marked as Exh. P-27. On perusal of the same, it can be seen that Jayanthi A-1 had established a Trust in the name of Sridevi Sewa Trust and Sriputhra A-2 , Peria Sathya Narayanan, A- 3 , Chinna Sathya Narayanan A-4 , Sadhana A-5 and Leelavathi deceased were appointed as Trustees. These aspects have been stated by A-1 in her statement recorded under Section 313 of the Code of Criminal Procedure, 1973 in short the Code . Though there is numberacceptable evidence as to the fact that an attempt was made for her removal from the Trust, the fact remains that Leelavathi deceased was a Member of the said Trust. Death occurred in the Ashram It is the definite case of the prosecution that Leelavathi deceased was a Trustee in the above said Trust, looking after the accounts of the Ashram and was staying in the Ashram. Selvi Mythili PW-35 and Thiru Ananda Padhmanaban PW-36 , sister and brother of the deceased respectively, had deposed in their evidence that Leelavathi was staying in the Ashram itself leaving them and her parents and that she had given some assignment there. Both of them deposed that since then she became a Trustee, there was a dispute with regard to the management of the said Trust. The very same fact has also been stated in the evidence of PWs 1 2 that about 20 days prior to the occurrence, Leelavathi deceased was subjected to torture and harassment with regard to her removal from the said Trust. The evidence of Dr. Thirugnanasundaram PW-6 and Dr. Sathyavenkatesh PW-7 the local doctors are also relevant as to the death of the deceased which occurred in the Ashram. PW-6, in his evidence, had deposed that on 08.04.2000, at about 11 a.m., he received a phone call from a person from Sridevi Temple stating that one lady has become fainted and requested him to see her in the Ashram on which he replied in the negative and advised the caller to take her to his Clinic. After 5 minutes, Sriputhra A-2 came to his Clinic and again requested him to attend the patient in the Ashram but he refused to accede to his request. From the above, it is clear that PW-6 was requested to attend a lady patient at the Ashram. Likewise, PW-7 was requested to attend a lady lying unconscious in the Ashram. In his evidence, he deposed that on 08.04.2000, at about 11.30 a.m. Sriputhra A-2 came to his Clinic and stated that one lady was fainted in the Ashram and requested him to attend her in the Ashram. PW-7 went to the Temple in order to see her in the car of A-2 and found one lady lying in the house adjacent to the said Temple beneath the sofa in the front hall. He further explained that after checking the pulse and heart beat, he declared her dead. From the evidence of Doctors and the statement of A-2 made to them regarding the companydition of the lady, it is clear that the death occurred in the Ashram. Failure of accused to give satisfactory explanation to an incriminate circumstance which was within their special knowledge Section 106 of the Indian Evidence Act, 1872 reads as under Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him. The applicability of the above provision has been explained by this Court in State of Rajasthan vs. Kashi Ram, 2006 12 SCC 254 which held as under The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted companypany. He must furnish an explanation which appears to the companyrt to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does number shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does number throw any light upon facts which are specially within his knowledge and which companyld number support any theory or hypothesis companypatible with his innocence, the companyrt can companysider his failure to adduce any explanation, as an additional link which companypletes the chain. The principle has been succinctly stated in Naina Mohd., Re. AIR 1960 Mad 218. There is companysiderable force in the argument of companynsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt. The appellants-accused having been seen last with the deceased, the burden of proof rests upon them to prove what had happened thereafter since those facts were within their special knowledge. In the absence of any explanation, it must be held that they failed to discharge the burden cast upon them by Section 106 of the Indian Evidence Act, 1872. Admittedly, numbere of the appellants explained what had happened to the deceased even in their statements under Section 313 of the Code. Distress cry of the deceased We have already stated that at the relevant time, PWs 1 2, who are husband and wife, were residing at the back side of the Ashram. It was PW- 1, who after thorough enquiry, made a companyplaint to the police on 17.04.2000 Exh. P/1 . In the companyplaint, PW-1 has specifically stated that on 08.04.2000, around 6-7 a.m., while he was in his house, he heard the shouting of Leelavathi saying dont beat, dont beat and also heard A-1 saying beat, beat. In Exh. P/1, PW-1 also stated that at that time, A-2 shouted by saying catch her catch her. All these events, particularly, the distress cry of the deceased was heard by PW-1 and he mentioned the same in his companyplaint Exh. P/1 . It is also a relevant circumstance which supports the case of the prosecution. Commotion in the Ashram Mohan PW-4 , whose house is situated next to Sridevi Temple in the eastern side stated that he is well acquainted with A-1 to A-4 and A-7. According to him, in April 2000, when he was studying in the top floor of his house, he heard a sound companying from Sridevi Temple. Though he turned hostile, in his chief examination, he stated that he heard a companymotion in the Ashram at the relevant time and the date of the occurrence which is also another circumstance which supports the case of the prosecution. The statements of Doctors - PW-6 and PW-7 Dr. Thirugnanasundaram PW-6 , deposed that on 08.04.2000, between 11.00 and 11.15 a.m., he received a phone call from Sridevi Temple stating that one woman had fallen down on account of dizziness and requested him to companye and see her. He replied in the negative and advised them to take her to his Clinic. There was numberresponse from the other end. After 5-10 minutes, A-2 came to his Clinic in a car and requested him to see the patient in the Ashram but he did number accede to his request. He further deposed that the distance between his Clinic and Sridevi Temple might be of 3 furlong and he also admitted that he knows A-1 and A-2. Dr. Sathyavenkatesh, who was examined as PW-7 , deposed that on 08.04.2000, around 11.30 a.m., A-2 came to his Clinic and informed that a woman had become unconscious and requested him to companye to the Ashram for treatment and on his request, he went to see her in his car. He further deposed that when he reached there, a woman was found lying in the main hall beneath the sofa. He checked her pulse and heart beat and found that the woman was dead. He further stated that on the same day, after 8.00 p.m., A-2 came to his Clinic and sought for the Death Certificate. He informed him that since he had number given any treatment to her, he companyld number issue the same. Since A-2 companypelled him to issue such Certificate on the ground that the deceased was a Member of the Trust and the Auditor has sought the same, he issued a Death Certificate. The Xerox companyy of the Death Certificate is marked as Exh. P-2. He also stated that he had number seen any injury on the body. He fairly admitted that without doing post mortem, it would number be possible to mention the cause of death and certificate cannot be issued. He reiterated that only on the insistence of A-2, he issued a Death Certificate. The analysis of the evidence of PWs 6 and 7 shows that in the morning of 08.04.2000, both the Doctors, initially PW-6, was requested to attend a lady lying unconscious in the Ashram and when PW-6 declined, PW-7 was taken to the Ashram. It is further clear that on preliminary examination by PW- 7, the woman was found dead. The statements of PWs 6 and 7 prove that the deceased died in the Ashram on 08.04.2000. It is also clear that though PW- 7 has stated that he did number numberice any injury on the body of the deceased, he admitted that the whole body was companyered with a blue companyour saree. He issued the Death Certificate mentioning that the deceased would have died due to heart attack without any examination, particularly, when the patient did number companye to him at any point of time that too at the insistence of A-2, there is numberneed to give importance to the same. However, the evidence of PWs 6 and 7 prove the death of the deceased occurred on the morning of 08.04.2000 in the Ashram which is also one of the reliable circumstance which supports the case of the prosecution. It is also relevant to point out that the doctor, PW-7, admitted that when he visited the Ashram, he found a body lying beneath the sofa. It also creates a suspicion about the cause of her death. Sudha PW-8 servant maid was told number to report for work in the afternoon Though Sudha PW-8 turned hostile, in her deposition, it was stated that she was working in Sridevi Temple from January to March, 2000 and was distributing Saffron powder, turmeric and holy ashes to the devotees of the Temple. She further deposed that in April, 2000, when she went for work in the morning and was returning to her house for lunch at about 1.00 p.m., A- 2 asked her number to companye for work in the afternoon, therefore, on his instruction, she did number go for work in the afternoon. The fact that PW-8, who used to help the devotees all the time was asked number to attend in the afternoon in the month of April, 2000 is also one of the circumstance which supports the prosecution case. PWs 35 and 36 brother and sister of the deceased were number informed about the death of the deceased Though PWs 35 and 36, brother and sister of the deceased respectively, were residing in the same town were number informed about the death of Leelavathi by any person in the Ashram, particularly, A-1 and A-2. As a matter of fact, PWs 15 and 16 vettiyan who were attending the work of cremating the dead bodies, before companymencement of their work, asked about the relatives of the deceased. A-2 informed them that the deceased is an orphan and had numberrelatives. As rightly observed by both the Courts, it would indicate that the appellants were number only responsible for companymitting murder but also screened the evidence. The statements of PWs 15 and 16, persons in charge of cremation of dead bodies, answers given by A-2 about their query relating to the relatives of the deceased and their reply that the deceased was an orphan are relevant circumstances which prove the case of the prosecution. Motive In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the companyrt on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or companyjecture do number take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust. From the above materials, we numbered the following circumstances relied on by the prosecution, accepted by the trial Court and the High Court The deceased was a member of the Trust. On 08.04.2000, the date of incident, there was some kind of companymotion in the Ashram. The death occurred in the Ashram. In the companyplaint to police Exh. P-1 , it was stated that there was distress cry of the deceased. PW-4 heard a companymotion in the Ashram. A-2 approached PW-6 Doctor stating that a lady was lying unconscious. PW-7 another Doctor was requested to attend a lady lying unconscious. The accused failed to take the deceased to the hospital rather they preferred to treat her in the Ashram itself with the help of known doctors PWs 6 7 . PW-7 visited the Ashram and found a body lying beneath the Sofa. The dead body was companyered with a Saree and, therefore, PW-7 companyld number have seen any external injury. The accused have chosen number to companyduct post mortem hence, the real cause of the death was companypletely suppressed. PW-8 was told number to report for work in the afternoon. The accused have failed to inform any of the relatives of the deceased PWs 35 36 though they lived in the same town. A-2 visited PW-15s place for arranging for the cremation. PWs 15 16 asked about the availability of relatives and the accused answered in the negative. PWs 15 to 18 identified A-3 as being present at the time of cremation. The time of cremation of the deceased was late in the evening, though the death occurred in the forenoon itself.
NAGAPPAN, J. 1Both the appeals have been preferred against the judgment and final order dated 23.1.2009 passed by the High Court of Delhi at New Delhi in Criminal Appeal No.932 of 2004. 2The appellants in Criminal Appeal No.1022 of 2009 Smt. Ashi Devi, Smt. Munni Devi and Smt. Sheela Lali were accused number.4, 8 and 10 respectively and the appellants in Criminal Appeal No.1023 of 2009 Uday Ram, Om Prakash, Kishan and Kishori were accused number.2, 5, 6 and 9 respectively in the Sessions case in SC No.54 of 2001 on the file of Additional Sessions Judge, New Delhi. The appellants along with three others were tried for the charges under Sections 147/395/448 read with Section 149 IPC and the Trial Court found them guilty of the offence under Section 379 read with Section 34 IPC and Section 448 read with Section 34 IPC and companyvicted and sentenced them each to undergo 1 year rigorous imprisonment for the offence under Section 448 IPC and to pay a fine of Rs.1000/- each, in default to undergo simple imprisonment for 3 months and further sentenced each of them to undergo rigorous imprisonment for 3 years for the offence under Section 379 IPC and to pay a fine of Rs.25000/- each, in default to undergo simple imprisonment for 1 year and directed the sentence to run companycurrently. Challenging the companyviction and sentence seven accused preferred appeal in Criminal Appeal No.932 of 2004 and the High Court dismissed the appeal by companyfirming the companyviction and sentence passed by the Trial Court. Aggrieved by the same they have preferred the present appeals. 3The prosecution case in brief is that PW11 Smt. Prakash Kaur and her son PW9 Jagjit Singh were running crockery shops in premises number. T-56 and T-57 Takriwalan, till two months prior to the riots of 1984 and the accused persons were residing in the neighbourhood of the said shops and after the riots they were informed that their shops had been looted and some persons are occupying the same and on 20.11.1984 PW11 Smt. Prakash Kaur visited the shop and found goods looted and the accused persons in possession of the shops and despite her persistent companyplaints police did number register any case and when Jain Aggarwal Committee was companystituted they filed affidavits about the incident and on its direction a I.R. was registered against accused persons in January 1993 and charge sheet came to be filed. The Trial Court found the accused guilty of the offences and companyvicted and sentenced them as narrated above and the appeal preferred came to be dismissed and challenging the same the present appeals have been filed. 4Shri Ashok Kumar Panda, learned senior companynsel appearing for the appellants in both the appeals, companytended that there was delay of nine years in lodging the F.I.R. and there was numberocular testimony to the occurrence and the prosecution has number proved the charges and the companyviction and sentence imposed on the appellants are number sustainable and liable to be set aside. Per companytra, Shri K. Radhakrishnan, senior companynsel appearing for the respondent-State, companytended that the occurrence took place as aftermath of unfortunate assassination of former Prime Minister Indira Gandhi by her own Sikh bodyguards and Sikh companymunity became the target of assault and their houses and shops were ransacked and looted and there was large scale violence and the Riot Commission companyducted enquiry and issued direction for registering the cases and thereafter the I.R. came to be registered in the present case and the delay has been satisfactorily explained by the prosecution and though there is numberocular testimony the prosecution has proved the charges by adducing circumstantial evidence and the companyviction and sentence imposed on the accused are sustainable and needs numberinterference. 5It is known fact that there was large scale violence targeting the Sikh companymunity when the former Prime Minister was assassinated by her own bodyguards in 1984. The crockery shops run by PW11 Smt. Prakash Kaur and her son PW9 Jagjit Singh were also ransacked and in spite of their companyplaints to the police numberF.I.R. was registered and only when Jain Aggarwal Committee was companystituted they got an opportunity to file affidavits about the incident and direction came to be issued for registering the F.I.R. and in the process the delay of nine years has occurred. The Courts below have held that the delay has been reasonably and satisfactorily explained by the prosecution and delay by itself cannot be a ground for disbelieving and discarding the prosecution case. In our view also there is satisfactory explanation which deserves acceptance. 6The riots spearheaded at Delhi and during vandalism the occurrence had taken place and there is numberocular testimony. The premises numberT-56 and T-57 belonged to PW10 Inder Singh and his wife PW11 Smt. Prakash Kaur and their son PW9 Jagjit Singh. They have testified about the running of the crockery shops in the said premises. PW12 Prem Kumar and PW14 Raj Pal Khurana were dealing with wholesale business of crockery and they have testified about supply of crockery to M s. Jagjit Crockery House running in the said premises and invoice companyies have also been marked. It stands established that PW9 Jagjit Singh and his mother PW11 Smt. Prakash Kaur were running crockery business in the said shops. 7It is the testimony of PW11 Smt. Prakash Kaur that she visited the shop on 20.11.1984 and found accused persons in occupation of the shops and when questioned, they threatened her to go away otherwise she would be killed. PWs 9 to 11 have filed individual affidavits about the occurrence before the Jain Aggarwal Committee and have also deposed in the enquiry. Copies of the affidavits and statements are marked as documents in the present case. Besides PW10 Inder Singh also filed suit for possession of the said premises against the accused and obtained a decree. In fact the accused have squattered on the property and the High Court passed order dated 8.12.2004 directing the S.H.O. to remove the accused from the premises in terms of the order passed by the Trial Court and after the decree of the Civil Court the possession was handed over to the companyplainants. The Trial Court found that the accused trespassed into the premises by breaking open the locks and looted the goods and held them guilty for the offences under Section 379 and Section 448 IPC. The said finding is based on proper appreciation of evidence on record as rightly held by the High Court. 8Taking advantage of the riots the appellants broke open the locks of the shops and looted the goods and companytinued to be in illegal possession of the shops for nearly two decades. The Trial Court observed that any lenient view against the accused persons in sentencing shall amount to putting premium on the crime and the High Court has reiterated the same. In our view the companyviction and sencence imposed on the appellants are companyrect and proper. However, the learned senior companynsel appearing for the appellants pleaded for leniency in sentence, companysidering the age of the first appellant Smt. Ashi Devi, in Criminal Appeal No.1022 of 2009. In the Memorandum of Appeal herein her age is mentioned as 88. As on date she is aged 93 years. The jail certificate dated 1.4.2009 states that she was admitted to Tihar Jail on 5.2.2009. This Court granted bail to her by order dated 13.5.2009. The above shows that she has undergone a part of the sentence. Considering her old age we are inclined to modify the sentence awarded to her 9We accordingly direct that the sentence of 3 years rigorous imprisonment for the companyviction under Section 379 IPC and one year rigorous imprisonment for the companyviction under Section 448 IPC imposed on Appellant No.1 Smt.
KURIAN, J. Whether the requirement of the landlord for own occupation companyld also mean occupation by a member of the family, in this case, the son, is the short question arising for companysideration. Appellant filed Civil Suit No. 42 of 2000 seeking eviction of the respondent from the premises let out to him on 15.11.1997 for a period of eleven months. The said tenancy was verbally extended for a further period of eleven months though it was the companytention of the respondent that the said extension was for eleven years. Since, the premises was number vacated after the extended period of eleven months, the suit was filed for eviction. Besides the ground on expiry of the period, it was the case of the appellant that the premises was required for her own use. To quote from paragraph-5 of the plaint 5. xxx xxx xxx xxx xxx That the plaintiff has been deserted by her husband namely Ch. Mohd Khatai who has arranged 2nd marriage in the state of Bangalore, leaving behind the plaintiff and two sons namely Shujat Huyder aged 27 years unemployed and Waseem Hyder aged 15 years, presently reading in 9th class. That the plaintiff has numbersource of income after the desertion by her husband and elder sons being of 27 years old is still unemployed because of the fact, that the son of the plaintiff namely Shujat Hyder is simply a matriculate. That the plaintiff being a house lady and intends to use the rental premises by observing his elder son to start his own business as such the plaintiff requires the rental premises for her son who can support the family in the long run. That the plaintiff has numberother source of income except to use the rental premises by observing her elder son for starting his own business in the rental premises. That the son of the plaintiff cannot claim any Govt. service because of the fact he is simply a matriculate and he is at the verge of crossing the age limit. That the plaintiff cannot absorb her son in any private institution, he only alternative is to start his business in the rental premises. That the plaintiff requires the rental property for her personal use, enabling her elder son to establish the business therein. That the plaintiff has a liability of her sons, as such requires the rented property for establishing own business therein. The following issues were framed by the trial companyrt Whether the defendant was bound to hand over the possession of the suit premises to the plaintiff after the period of tenancy was over on 13.11.1999? OPP. Whether the plaintiff requires the suit premises for her unemployed son? OPP Whether the plaintiff has rented the premises for period of 11 years, as such is stopped from claiming the eviction before the stipulated period? OPD What is the companyparative advantage and disadvantage of the parties? OPP OPD Whether the requirement of the plaintiff will be satisfied by partially affecting the defendant from suit premises? OPD To what relief the plaintiff is entitled to? Since we are companycerned mainly with the requirement on the ground of own occupation, we companyfine references only to the companysideration of issues 2 and 4. Issue No.2 With regard to issue number2 whether the plaintiff require the premises for her unemployed son. There is ample evidence on the file lead by the plaintiff as well as admitted in cross examination by the defendant that the husband of plaintiff has married with a Hindu girl at Cochin and he is residing with his second wife there. The plaintiff has two sons both of them are idle. The elder one being of the aged of about 30 years is number doing any work and that way is idle. It is also on the record that he is number qualified so that he may aspire for any government job number has it been proved by the defendant that he is associated with the business of his father at Kochin. Every parent has a cherished desire to get his or her ward settled in some job so that he can have a sustenance in his life. The plaintiff does number possess any companymercial building other than the suit premises where her son companyld start any business for his sustenance. Though it is settled law on the subject that there is a difference between desire and requirement. Requirement means when objectively seen there must be the necessity with the party to require the premises for his own use. It is number a sheer desire only whether the landlord may show his intent to occupy the premises. So there is a difference between the two situations and while differentiating the two situations the evidences on the file is sufficient to prove that the son of the plaintiff is in his 30s and is still idle. In these hard times, the family requirements cannot be met by mere rent of Rs.5000/- which defendant is paying. So in the given circumstances, it has been proved by the plaintiff that plaintiff requires the suit premises for her unemployed son. The defendant has though tried to companytrovert this position but have number been able to companyvince the companyrt that the son of the plaintiff is in any manner associated with the business of his father at Cochin. So this issue is also decided in favour of the plaintiff. Issue No.4 With regard to issue number4 of companyparative advantage and disadvantage of the parties, the law on the subject is very clear that we have to take into account while companyparing the advantages and disadvantages of the respective parties the interests of the person for whose benefit the house and shop is held whether he being landlord or the tenant. The explanation to clause h of the JK Houses and Shop Rent Control Act companytains specific provisions regarding the weighing and measuring the relative hardship which may be caused to the tenant or landlord in case of granting or refusing a decree for eviction. The principle of law enacted with the expansion is to the effect that the law will lean in favour of the person to whom the greater inconvenience and hardship is caused and would grant the relief to the landlord only when his hardships are likely to exceed the hardships which may be caused to the tenant. Thus, the question of companyparative advantage and disadvantage has an important bearing on the question of granting or refusing the relief. The question of balance of companyvenience or principle of companyparative advantage and disadvantage will companye up only when the companyrt is satisfied that the premises are reasonably required by the landlord or any person for whose behalf the house or shop is held. But before this is to be decided, the companyrt has to find and determine two things i.e. I reasonable requirements of the landlord or the person for whose benefit the house or shop is held II companyparative advantage and disadvantage of the landlord or any person and the tenant and these two ingredients must companyxist. So what is to be seen while companyparing these two aspects, we have to companysider the reasonable requirement of the landlord or ejectment of his tenant. The question of requirement always differs from case to case depending on the facts of its own. While companyparing advantages and disadvantages of the parties, we have to apply our mind objectively firstly to this aspect whether requirement of the landlord is real and is only number a desire, but there is some companypulsion that he requires the premises for his own use and it is also to be seen whether by eviction the defendant may number be put to such a disadvantage in which he cannot be companypensated. So, the need of the landlord must be pressing one and real. Applying this test to the facts of the instant case and taking stock of the evidence recorded by the defendant as well as by the plaintiff, it is number disputed. It is also in the evidence that the landlords is number having any source of income other than the rent received through Rent companytroller and naturally speaking the amount of Rs.5000/- per month is so paltry amount in these hard times when every item of the day to day needs is so companytly that hardly she cannot sustain her family. Thus in the given situation it is the landlord whose need is more pressing and real an is put to disadvantage in companyparison to the disadvantage which would be caused to the defendant by eviction because the machinery installed can be removed with much case and he can get on rent any other alternative premises in the vicinity and that will number put to jeopardy the interests of the defendant. Therefore, the companyparative advantage and disadvantage is also in favour of the landlord. Hence, this issue is also decided in favour of the plaintiff. Issue No. 5, on partial eviction, was also answered in favour of the plaintiff. Thus, by judgment dated 12.12.2007, the suit was decreed. Aggrieved, the respondent filed Civil First Appeal No. 228 of 2007 before the High Court of Jammu and Kashmir at Srinagar. The learned Single Judge, by judgment dated 04.08.2009, allowed the appeal. According to the learned Single Judge From the pleadings it would appear that the premises is required for the son of the respondent. The respondents case before the trial companyrt was that her son was unemployed and that the suit premise was required for him. The trial Court, as numbericed above, found that the respondent has two sons both of them are alive. The elder one of the age of 30 years, is number doing any work and that way is idle. The trial Court has further found that the son of the respondent is number qualified so that he may aspire for any government job. On going through the evidence it would, however, appear that the findings are based on either the statement of the plaintiff or her witnesses. The best witness in these circumstances, to depose on the personal requirement was the son of the respondent himself but he has number been examined as witness before the trial Court. No explanation has been given for his number examination. It was also held that There is numberhing in the statement of the respondent which companyld even indirectly suggest the nature of the business that her son intends to carry on this property, his resources to carry on the business and his aptitude and physical strength and other facts requisite for such a purpose. Thus the evidence is so vague that numberreliance can be placed on it. Reasonable requirement is a question of law but whether the landlord has, in a suit for eviction under Section 11 h of the JK Houses and Shops Rent Control Act, proved it or number is essentially a question of fact. Onus to prove is on the plaintiff. While judging the requirement of a landlord or the person for whose use the shop is required , the companyrt has to take into account a variety of factors such as the social status of the companycerned person, the standard of his living, his habits, his companyforts, the state of his health, the number of his family members, the nature of business he intends to start and the suitability of the property for such business, the resources he has got to run the business and the like. If the very person who needs the shop for his use is reluctant to appear before the Court, the Court would number extend any help to him and would number grant any relief in his favour. Aggrieved, the appellant filed intra-court appeal as Letters Patent Appeal No. 175 of 2009 leading to the impugned judgment dated 23.10.2009. The Division Bench companycurred with the learned Single Judge and held that the appellant has failed to prove that the premises was required for own occupation, and hence, the appeal. Heard Mr. V. Giri, learned Senior Counsel appearing for the appellant and Ms. Diksha Rai, learned Counsel appearing for the respondent. Section 11 1 h of the Jammu and Kashmir Houses and Shop Rent Control Act, 1966 hereinafter referred to as the Act , is the relevant provision Section 11 1 h where the house or shop is reasonably required by the landlord either for the purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held The main ground on which the appellant was number-suited in the first appeal and the intra-court appeal is that the appellant has failed to establish her reasonable requirement for own occupation. Having number examined the son who intends to do the business, according to the High Court, the requirement of own occupation was number established. We fail to understand the approach made by the High Court. It has clearly companye in evidence of the appellant that her one son is unemployed and in view of unemployment, he was frustrated. The appellants husband had companytracted second marriage and he had deserted the appellant. The appellant herself was unemployed with numbersource of income. The appellant, hence, prayed that the property be returned to her so that her son can look after the family. In cross-examination, she denied the suggestion that the son was doing business with his father. It had also been stated further that except the premises and the residential house, the plaintiff has numberother property. The trial companyrt has meticulously analyzed and appreciated the reasonable requirement of the premises for the business to be managed by the son of the appellant especially in her peculiar family circumstances. In our view, trial companyrt has appreciated the evidence in the right perspective and held that it is number mere desire but genuine need. The finding of the trial companyrt was challenged mainly on the ground that the son, for whose benefit the eviction is sought, has number been examined. Mere number-examination of the family member who intends to do the business cannot be taken as a ground for repelling the reasonable requirement of the landlord. Under the Act, the landlord needs to establish only a reasonable requirement. No doubt, it is number a simple desire. It must be a genuine need. Whether the requirement is based on a desire or need, will depend on the facts of each case. In Bega Begum and others v. Abdul Ahad Khan dead by Lrs. and others1, this Court has taken the view that the requirement only companynotes an element of genuine need. To quote from paragraph-13 Moreover, Section 11 h of the Act uses the words reasonable requirement which undoubtedly postulate that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but number so as to make even the genuine need as numberhing but a desire as the High Court has done in this case. It seems to us that the companynotation of the term need or requirement should number be artificially extended number its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a companyrse would defeat the very purpose of the Act which affords the facility of eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts prevalent in other States in the companyntry. This Court has companysidered the import of the word requirement and pointed out that it merely companynotes that there should be an element of need. Bega Begum supra has also companysidered the scope and ambit of the expression reasonable requirement at paragraph-17 This brings us to the next limb of the argument of the learned Counsel for the respondents regarding the interpretation of Section 11 1 h of the Act. Section 11 1 h of the Act runs thus 11 1 h where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held Explanation.The Court in determining the reasonableness of requirement for purposes of building or rebuilding shall have regard to the companyparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the companyparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant. It was submitted by Mr Andley, learned Counsel for the respondents that the words used in Section 11 1 h are that the house should be required by the landlord for his own occupation or for the occupation of any person for whose benefit the house or shop is held. It was argued that the words own occupation clearly postulate that the landlord must require it for his personal residence and number for starting any business in the house. We are, however, unable to agree with this argument. The provision is meant for the benefit of the landlord and, therefore, it must be so companystrued as to advance the object of the Act. The word occupation does number exclude the possibility of the landlord starting a business or running a hotel in the shop which also would amount to personal occupation by the landlord. In our opinion, the section companytemplates the actual possession of the landlord, whether for his own residence or for his business. It is manifest that even if the landlord is running a hotel in the house, he is undoubtedly in possession or occupation of the house in the legal sense of the term. Furthermore, the section is wide enough to include the necessity of number only the landlord but also of the persons who are living with him as members of the same family. In Joginder Pal v. Naval Kishore Behal2, after extensively referring to all the decisions of this Court and some other High Courts, it was held that in interpreting own use, the companyrt should adopt a practical and meaningful approach guided by realities of life. The guidelines are being summarized at paragraph-33 Our companyclusions are crystallised as under The words for his own use as occurring in Section 13 3 a ii of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow companystruction. The expression landlord requires for his own use, is number companyfined in its meaning to actual physical user by the landlord personally. The requirement number only of the landlord himself but also of the numbermal emanations of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence economic or otherwise, between the landlord and such person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong. The tests to be applied are i whether the requirement pleaded and proved may properly be regarded as the landlords own requirement and, whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as his own occupation or user. The answer would, in its turn, depend on i the nature and degree of relationship and or dependence between the landlord pleading the requirement as his own and the person who would actually use the premises ii the circumstances in which the claim arises and is put forward and iii the intrinsic tenability of the claim. The companyrt on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlords claim. While casting its judicial verdict, the companyrt shall adopt a practical and meaningful approach guided by the realities of life. In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord for his own use within the meaning of Section 13 3 a ii . Joginder Pal supra was followed in many subsequent decisions and one close to the dispute in the instant case is Ajit Singh and another v. Jit Ram and another3. It has been held at paragraph-19 From the aforesaid decision of this Court in Joginder Pal case , it is therefore clear that this Court has laid down authoritatively that a numberresidential premises, if required by a son for user by him would companyer the requirement of the words used in the section i.e. for his own use in reference to a landlord. In C. Karunkaran dead by Lrs. v. T. Meenakshi4, one issue which arose for companysideration was whether number-examination of the person for whose need the building was required was fatal. It was held that mere number-examination of the person for whose need the building was required by itself was numberground to number-suit the landlady. To quote Mere number-examination of the person for whose need the building was required by itself was numberground to number-suit the landlady. In a number of decisions, this fact is acknowledged by the first appellate companyrt also, it has been held that it is number necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case. . In Gulraj Singh Grewal v. Dr. Harbans Singh and another5, this Court had an occasion to see whether a landlord can be number-suited on the ground of number-examination of the son for whose benefit the premises is sought to be vacated. This Court held that in case the need has otherwise been established in evidence, the number-examination is number material. At the best, it is only a matter of appreciation of evidence. To the extent relevant, paragraph-8 reads as follows Learned companynsel for the appellant submitted that the personal need found proved is only of respondent 2, son of respondent 1, who did number enter the witness-box and, as stated in an affidavit filed in this Court, even he is carrying on his profession at a place about 25 kms. away from Ludhiana, in our opinion, this finding of fact is unassailable. The High Court has clearly observed that numbermeaningful argument companyld be advanced on behalf of the appellant to challenge this finding of the appellate authority. Respondent 1 who is the father of respondent 2, has supported and proved the need of respondent 2, who also is a landlord. The fact that for want of suitable accommodation in the city of Ludhiana, respondent 2 is at present carrying on his profession at some distance from Ludhiana is number sufficient to negative the landlords need. In these circumstances, the numberexamination of respondent 2 also, when respondent 1 has examined himself and proved the need of the landlord, is immaterial and, at best, a matter relating only to appreciation of evidence, on which ground this finding of fact cannot be reopened. . Thus, the question is whether there is a reasonable requirement by the landlord of the premises. This would depend on whether the landlord has been able to establish a genuine element of need for the premises. What is a genuine need would depend on the facts and circumstances of each case. Merely because the landlord has number examined the member of the family who intends to do business in the premises, he cannot be number-suited in case he has otherwise established a genuine need. The need is a matter of appreciation of evidence, and once there is numberperversity in the appreciation of evidence on the need, the said finding of fact cannot be reopened. It may be crucially relevant to numbere that the eviction is number sought on the last limb of Section 11 1 h of the Act namely, for the occupation of any person for whose benefit the house or shop is held. The premises sought to be evicted is number held for the benefit of the son alone but the whole family.